Liudmila Terentieva1
  • 1 National Research University Higher School of Economics, 20 Myasnitskaya Str., Moscow, 101000, Russian Federation

Legal Jurisdiction Concerning the Disputes in Cyberspace in the USA

2021. No. 2. P. 236–260 [issue contents]
In the context of the development of modern digital means of communication, the articleraises the question about the mechanism for establishing judicial jurisdiction for resolvingcross-border private law disputes. The author makes comparison flexible and strictjurisdictional criteria regarding in relation to cyber-disputes. The article reveals both positiveaspects of flexible criteria for establishing jurisdiction that are more appropriate forcyberspace platform and negative aspects that increase the probability of a jurisdictionalconflict.The problems of the conflict of jurisdiction actualize the author’s appeal to thestudy of the bases of the realization of judicial jurisdiction. The author raises the questionto what extent the manifestation of the jurisdiction based on flexible criteria in theera of cyberspace differs from the manifestation of jurisdiction before cyberspace.Theauthor also analyzes the restrictive mechanisms developed in USA in relation to relationsin cyberspace (the Calder test, the Zippo test), which leads to the conclusion that law enforcementagencies need to use a multidimensional differentiated analysis that includesthe study of several factors, excluding a formal, mechanistic approach. Subjective factorsinclude such circumstances as the analysis of the plaintiffs ‘ interest in consideringthe dispute in the plaintiff’s court; the assessment of the burden on the defendant whenconsidering the case in a court of another state; the defendant’s purposeful activity inthe 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 includethe nature and number of links between the elements of the disputed legal relationshipwith the State of the court. At the same time, in all cases, along with objective and objectivefactors, the courts take into account legal factors that contain a formal and pragmaticcomponent in the form of a manifestation of the public legal interests of the State of thecourt in the consideration of the dispute. In relation to disputes in cyberspace, the authorsuggests an approximate combination of the ratio of objective and subjective factors inestablishing 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).
For citation: Terentyeva L.V. (2021) legal Jurisdiction Concerning the Disputes in Cyberspace in the USA. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 236–261 (in Russian) DOI: 10.17323/2072-8166.2021.2.236.261
Citation: Terentieva L. (2021) Ustanovlenie sudebnoy yurisdiktsii po sporam v kiberprostranstve na primere SShA [Legal Jurisdiction Concerning the Disputes in Cyberspace in the USA]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 236-260 (in Russian)
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