Borderless 11OCT02

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Published on January 14, 2008

Author: Demetrio

Source: authorstream.com

The ‘borderless’ Cyberspace: from illusion to reality via the proposed Hague Convention :  The ‘borderless’ Cyberspace: from illusion to reality via the proposed Hague Convention Gutnick v. Dow Jones::  Gutnick v. Dow Jones: Paper version: 14 subscribers in Australia, five of which are located in Victoria. Online version: Out of 550.000 people subscribing to the Internet version of the magazine 1700 paid for the service using Australian-issued credit cards. Gutnick v. Dow Jones (VSC)::  Gutnick v. Dow Jones (VSC): “where the material was uploaded in New Jersey, that is, when it was pulled from the server in New Jersey” Gutnick v. Dow Jones (VSC)::  Gutnick v. Dow Jones (VSC): “[o]ne accepts that delivery of an electronic document onto the plaintiff’s Website will only occur if the electronic request is met” Gutnick v. Dow Jones (VSC)::  Gutnick v. Dow Jones (VSC): “this is an Internet publication, not a World Wide Web publication” Slide6:  The question of jurisdiction is generally never an obstacle for a defamation action, based on Internet publication, if the traditional interpretation of “publication” is upheld and the tort of defamation takes place where the material is published. Forum non conveniens down-under::  Forum non conveniens down-under: An Australian court will only decline jurisdiction if the Defendant shows that the court is an “clearly inappropriate forum” Gutnick v. Dow Jones (VSC)::  Gutnick v. Dow Jones (VSC): Mr Gutnick sued only in relation to publications and damages in Victoria and undertook not to sue anywhere else. This “disconnects” other forums. Choice of law down-under::  Choice of law down-under: The ‘double actionability’ test has been abandoned in favor of the lex loci delicti (the law of the place of wrong) Dow Jones v. Gutnick (HCA)::  Dow Jones v. Gutnick (HCA): In relation to the publication of defamatory material on the World Wide Web publication occurs at the point at which there is a last opportunity for the publisher to take steps to exercise control over publication, that is the point at which final editorial decisions are made and final technical work is done to upload material Dow Jones v. Gutnick (HCA)::  Dow Jones v. Gutnick (HCA): A “wild guess”: The High Court will find that Victoria can exercise jurisdiction and is not prevented from doing so under the doctrine of forum non conveniens. The question of choice of law is more open, but it would take more of an effort to conclude that US law applies. The Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters::  The Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters: The proposed Hague Convention::  The proposed Hague Convention: First suggested in 1992 Drafted by the Hague Conference on Private International law “open double convention” Part 1 – Jurisdiction & Part 2 – Recognition and Enforcement White, grey & Black listed ground of jurisdiction Article 4 – Choice of forum::  Article 4 – Choice of forum: a choice of forum clauses shall be respected and viewed as an exclusive choice the parties’ choice is respected regardless of whether the nominated court is a court of a contracting state or not formal validity of the choice of forum is to be regulated exclusively by the Hague Convention substantive validity of the choice of forum is to be regulated by the law of the nominated forum including its conflict of laws rules Article 7 – Consumer contracts::  Article 7 – Consumer contracts: No free choice Consumers pay for their own protection Small values Without consumer trust in e-commerce, there will be no B2C e-commerce! Consumers can sue the business in the consumers forum, and businesses can only sue the consumer in the consumers forum. Article 7 – Consumer contracts::  Article 7 – Consumer contracts: reasonable steps Digitised products http://visualroute.brd.net.au/ Targeting vs Dis-targeting No protection for non-profit organisations and small and medium size businesses A consumer is a natural person acting primarily for personal, family or household purposes Article 6 – Contracts::  Article 6 – Contracts: a plaintiff, not subject to article 7 or 8 can bring an action in contract in the courts in a state that has been somehow targeted by the defendant E.g. goods or service was wholly or partly supplied or provided in that state Torts (Art. 10)::  Torts (Art. 10): Where the act or omission that caused injury occurred; or Where injury arose (unless the person claimed to be responsible could not reasonably foresee that the action or omission could result in an injury of the same nature in that State). IP::  IP: The forum in which the right is registered has exclusive jurisdiction over disputes relating to that dispute Article 18 – Blacklist::  Article 18 – Blacklist: “Where the defendant is habitually resident in a Contracting State, the application of a rule of jurisdiction provided for under the national law of a Contracting State is prohibited if there is no substantial connection between that State and [either] the dispute or the defendant” Article 17 – Greylist::  Article 17 – Greylist: Jurisdiction under national laws is valid unless blacklisted or interfering with the whitelisted grounds for jurisdiction. However, states are not obligated to enforce a greylist judgment under the conventions provisions. Article 21 – Lis pendens:  Article 21 – Lis pendens the court second seized shall suspend the proceeding in favour of the court first seized Forum non conveniens: :  Forum non conveniens: does not apply when jurisdiction is founded on a valid choice of forum clause (Art. 4), a consumer contract (Art. 7), a contract of individual employment (Art. 8) or Exclusive jurisdiction, such as IP (Article 12). Forum non conveniens: :  Forum non conveniens: the forum seized must be clearly inappropriate and there must be an alternative forum that is clearly more appropriate Initially suspended rather than declined Recognition and Enforcement::  Recognition and Enforcement: Generally: whitelist=enforcement, blacklist=no enforcement & greylist=unregulated. “recognition and enforcement would be manifestly incompatible with the public policy of the State”

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