Cyberplace and Methodology of International Private Law
Abstract
Is it possible to regulate an extensive segment of transborder relations in cyber space with the available legal tools and is reasonable to discuss the formation of the new bulk of norms in cyber space? The aim of the article is an attempt to answer this question through the prism of the regulation mechanism in trans-border private law relations belonging to the subject matter of international private law. Due to the nature and the presence of foreign component, the private law relations are closely connected with those emerging due to the scale of cyber space. The methodology of the international private law has adjusted during many centuries to the regulation of trans-border relations having developed a number of mechanisms with a high degree of flexibility and able to respond efficiently to the challenges of the modern society. Cyber space as a new environment for net community makes the issues of the past generation relevant, in particular conflict of jurisdictions and conflict of laws. The solutions are developing both by adjusting the traditional regulatory models and the development of the new ones some of which are being discussed in the article. The research argues that the concept of cyber law as an autonomous legal system regulating public relations in cyber space is irrelevant as the very nature of the relations are not transformed. However, law needs to realize cyber space and formulate relevant responses to the new forms of making trans-border private law relations objective. In particular, the sphere concerning the definition of jurisdiction may draw the attention due to the theoretical concepts and practice: Calder effects, Zippo-test, targeting test etc. Conflict of laws has a tendency of shifting from local legal relations with lex loci to a more flexible conflict of laws regulation. or the cosmopolitan approach of the applicable law presented by P.S. Berman. Cyber space makes lex mercatoria relevant again which may be referred to as lex informatia or e-merchant. As accumulated, all the above-mentioned may enrich the modern doctrine and practice of international private law.
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