Legal Jurisdiction Concerning the Disputes in Cyberspace in the USA
Abstract
In the context of the development of modern digital means of communication, the article raises the question about the mechanism for establishing judicial jurisdiction for resolving cross-border private law disputes. The author makes comparison flexible and strict jurisdictional criteria regarding in relation to cyber-disputes. The article reveals both positive aspects of flexible criteria for establishing jurisdiction that are more appropriate for cyberspace platform and negative aspects that increase the probability of a jurisdictional conflict. The problems of the conflict of jurisdiction actualize the author's appeal to the study of the bases of the realization of judicial jurisdiction. The author raises the question to what extent the manifestation of the jurisdiction based on flexible criteria in the era of cyberspace differs from the manifestation of jurisdiction before cyberspace. The author also analyzes the restrictive mechanisms developed in USA in relation to relations in cyberspace (the Calder test, the Zippo test), which leads to the conclusion that law enforcement agencies need to use a multidimensional differentiated analysis that includes the study of several factors, excluding a formal, mechanistic approach. Subjective factors include such circumstances as the analysis of the plaintiffs‘ interest in considering the dispute in the plaintiff's court; the assessment of the burden on the defendant when considering the case in a court of another state; the defendant's purposeful activity in the country of the court; the defendant's foresight of the possibility of considering the dispute in the state of the court. Among the objective factors, it is necessary to include the nature and number of links between the elements of the disputed legal relationship with the State of the court. At the same time, in all cases, along with objective and objective factors, the courts take into account legal factors that contain a formal and pragmatic component in the form of a manifestation of the public legal interests of the State of the court in the consideration of the dispute. In relation to disputes in cyberspace, the author suggests an approximate combination of the ratio of objective and subjective factors in establishing a close relationship. The author applied private scholar methods-formal legal, comparative legal, sociological methods, as well as methods of formal logic (analysis, synthesis, abstraction, concretization, deduction, induction, analogy).
References
Bermann P.S. (2002) The globalization of jurisdiction. University of Pennsylvania Law Review, vol. 151, no 2, pp. 311-529.
Bettinger T., Thum D. (2000) Territorial Trademark Rights in the Global Village — International Jurisdiction, Choice of Law and Substantive Law for Trademark Disputes on the Internet (Part One). International Review of Intellectual Property and Competition Law, vol. 31, pp. 162-182.
Brand R.A. (1998) Tort Jurisdiction in a Multilateral Convention: The Lessons of the Due Process Clause and the Brussels Convention. Brooklyn Journal of International Law, vol. 24, no 1, pp. 125-155.
Broy U., Sh. (2018) [Blockchain and cybercurrencies: is the new legislative background needed]. Pravo i tsifrovaya ekonomika, no 1, pp. 13-20. (in Russian)
Collier J. G. (2012) Conflict of Laws. Cambridge University Press, 403 p.
Geist M. (2001) Is There a There? Toward Greater Certainty for Internet Jurisdiction. BTLJ, vol. 16, no 3, pp. 902-938.
Jiménez W.G. (2015) Rules for Offline and Online in Determining Internet Jurisdiction. Global Overview and Colombian cases, vol. 26, pp. 13-62.
Kebede A. Kassim S. (2009) Conflict of Laws. Addis Ababa: Ethiopia, 414 p.
Ludington S.H. (2012) Aiming at the Wrong Target: The “Audience Targeting” Test for Personal Jurisdiction in Internet Defamation Cases. Ohio State Law Journal, vol. 73, pp. 540-574.
Mazhorina M.V. (2020) [Cyberspace and methodology of private international law]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 230-253. (in Russian)
Michaels R. (2006) Two Paradigms of Jurisdiction. Michigan Journal of International Law, vol. 27, no 4, pp. 1003-1069.
Posada O.C.V. (2005) Jurisdictional problems in Cyberspace Defamation. International Law: Revista colombianade derecho internacional, vol. 6, pp. 247-300.
Shebanova N.A. (2002) [Conflict of jurisdictions: causes and consequences]. Vestnik VAS, no 8, pp. 133-140. (in Russian)
Schugurova I. (2017) [Breach of exclusive rights on the Internet: Conflict of laws regulation]. Avtorskoe pravo i smezhnie prava, no 10, pp. 45-52. (in Russian)
Spencer A. B. (2006) Jurisdiction and the Internet: Returning to Traditional Principles to Analyze Network-Mediated Contacts. University of Illinois Law Review, vol. 71, no 102, pp. 71-126.
Tang Z.S. (2014) Consumer contracts and the Internet in EU private international law / Savin A., Trzaskowski J. (ed.) Research Handbook on EU Internet Law. Cheltenham: Edward Elgar, pp. 254-284.
Copyright (c) 2021 Law Journal of the Higher School of Economics
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
