Eggs, jurisdiction, and the internet

International and Comparative Law Quarterly

Volumn 51, Issue 3, 2002, Pages 556-582

  Kohl, Uta ^a  

^a ABERYSTWYTH UNIVERSITY   (United Kingdom)

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EID: 84889693966     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/51.3.555     Document Type: Article

References (143)

1. This story was inspired by the article by Tony Bradney, ‘Law Schools and the Egg Marketing Board’ (2001) 22 SPTL Reporter 1.
2. The terminology of ‘belonging’ has been used by some in the jurisdictional context, eg, Frederick A Mann ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours 1, 44 f, where he argues that public international lawyers should, just like their private counterparts, ‘ask whether the legally relevant facts are such that they “belong” to this or that jurisdiction’.
3. Lawrence Lessig, ‘The Zones of Cyberspace’ (1996) 48 Stanford Law Review 1403, 1407.
4. This paper to some extent builds on my discussion in a previous article, Uta Kohl, ‘Legal Reasoning and Legal Change in the Age of the Internet—Why the Ground Rules are still Valid’ (1999) 7 International Journal of law and Information Technology 123, in which I argue for the value and necessity of incremental legal change even in view of a drastically changed reality. It is shown in this paper that this very imperative of legal continuity at times shapes legal rules which are too sophisticated to provide a solution to the very problem which inspired them, therefore paradoxically creating a need for a more radical legal reform.
5. International law also applies to private law even if only to the extent that it does not impose any limitations upon States on how to deal with these matters. There is disagreement on the extent to which international law does impose substantive limitations: see eg. Ivan Shearer, ‘Jurisdiction’, in Sam Blay, Ryszard Piotrowicz, and Martin Tsamenyi (eds), Public International Law: An Australian Perspective (Melbourne: OUP, 1997) 165
6. Mann, above n 2, 291
7. Michael Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 46 British Year Book of International Law 145, 177.
8. See, eg, Mann, above n 2, 50 f: ‘It would no doubt be desirable if the principle of exclusivity would come to be accepted for the purpose of jurisdiction, if, in other words, by common consent jurisdiction in respect of a given set of acts were exercised by one State only.’
9. Akehurst, above n 6, 192, where he comments in the context of global restrictive business practices that the number of States claiming jurisdiction should be as small as possible.
10. For a defence of concurrent regulation in respect of public matters see: William S Dodge, ‘Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism’ (1998) 39 Harvard International Law Journal 101.
11. Bernand H Oxman, ‘Jurisdiction of States’ in Rudolf Bernhardt (ed), Encyclopaedia of Public International Law (1987) vol 10, 277, 282.
12. David J Harris, Cases and Materials on International Law, 5th edn (London: Sweet & Maxwell, 1998) 265, stating that custody of a person tends to be decisive in resolving conflicting claims.
13. The same sentiment is echoed in G Fitzmaurice, ‘The General Principles of International Law considered from the Standpoint of the Rule of Law’ (1957) 92 Recueil des Cours 209
14. but see also Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim's International Law 9th edn (London: Longman, 1992), vol 1, 457: ‘Usually the coexistence of overlapping jurisdiction is acceptable and convenient; forbearance by states in the exercise of their jurisdictional powers avoids conflict in all but a small (although important) minority of cases’
15. Mann, above n 2, 48: ‘[I]nternational lawyers know that the remedy again lies in a policy of tolerance, reasonableness and good faith.’
16. Oxman, above n 9, 278.
17. This is also to some extent reflected in the emerging non bis in idem principle at the EU level: Christine Van Den Wyngaert, Guy Stessens ‘The International Non Bis In Idem Principle: Resolving Some of the Unanswered Questions’ (1999) 48 ICLQ 779.
18. Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: OUP, first published 1978, 1994), 73 (footnotes omitted).
19. Legal Reasoning and Legal Theory, at 76 f.
20. See also Hans Kelsen, General Theory of Law and States(Cambridge, Mass: Harvard UP, 1946) 14, where he states ‘“Justice” in this sense means legality; it is “just” for a general rule to be actually applied in all cases where, according to its content, this rule should be applied. It is “unjust” for it to be applied in one case and not in another similar case. And this seems “unjust” without regard to the value of the general rule, the application of which is under consideration.’
21. John G Fleming, The Law of Torts 9th edn (North Ryde, NSW: LBC Information Services, 1998), 25.
22. In the context of jurisdiction, for example, the technique of statutory interpretation which dominated conflicts law for five centuries was ultimately abandoned because it ‘had become so complicated with divergent scholastic distinctions … that confused masters left their readers more confused.’: Hessel E Yntema, ‘The Historic Bases of Private International Law’ (1953) 2 American Journal of Comparative Law 297, 304.
23. 326 US 310 (1945).
24. For a comprehensive summary of the cases since then with special focus on online cases, see American Bar Association (ABA), ‘Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet’ (2000) at .
25. Pennoyer v Neff, 95 US 714 (1887) where it was held that a State could not subject non-residents to the jurisdictions of its courts unless they were served with process within its boundaries. The court also listed other bases of jurisdiction such as the defendant's voluntary appearance or the existence of his or her property within the jurisdiction.
26. International Shoe Co v Washington, 326 US 310, 316 (1945).
27. In Shaffer v Heitner, (1977) 433 US 186 it was held that all assertions of jurisdiction, whether specific or general, had to meet the ‘minimum contacts’ tests. The focus in this discussion is only on specific jurisdiction, that is where the facts of the dispute arise out of the defendant's contacts with the forum. ‘General jurisdiction’ describes assertions which are valid regardless of the claim because of the substantial contacts of the defendant with the forum.
28. See ABA, above n 18, 66.
29. International Shoe Co v Washington, 326 US 310, 316f (1945).
30. US, 319 (1945).
31. Green v Mason, 996 F Supp 394, 396 (1998).
32. Dan L Burk, ‘Jurisdiction in a World Without Borders’ (Spring 1997) 1 Virginia Journal of Law and Technology, at , para 25 f.
33. 357 US 235 (1958).
34. Hanson v Denckla, 357 US 235, 253 (1958).
35. US, 251 (1958).
36. ABA, above n 18, 41 f.
37. US, 43.
38. US, 43 ff.
39. 444 US 286 (1980).
40. Mann, above n 2, 46.
41. This explains some early ‘wrong’ decisions which have applied the targeting approach without making allowance for the fact that every website prima facie targets every jurisdiction. See, eg, Inset Systems Inc v Instruction Set Inc, 937 F Supp 161 (D Conn 1996)
42. Halean Products Inc v Beso Biological, 43 USPQ (BNA) 1672 (1997)
43. Maritz Inc v Cybergold Inc, 947 F Supp 1328 (ED Mo 1996).
44. For academic or judicial criticism see inter alia: ABA, above n 18, at 58 f
45. Peter Brown, ‘US Courts Use Internet to Assert Jurisdiction Over Foreign Defendants’ (1997) Law Journal Extra, at
46. Hasbro Inc v Clue Computing Inc, 994 F Supp 34 (D Mass 1997)
47. Hearst Corp v Goldberger, 1997 WL 97097 (SDNY 1997).
48. ABA, above n 18, 60 f.
49. WL, 63.
50. ABA, above n 18, 64.
51. For an excellent review of the case law and its many inconsistencies see Millennium Enterprises Inc v Millennium Music LP, 33 F Supp 2d 907 (D Or 1999).
52. Millennium Enterprises Inc v Millennium Music LP, 33 F Supp 2d 907, 916 (1999)
53. citing Howard B Stravitz, ‘Personal Jurisdiction in Cyberspace: Something More is Required on the Electronic Stream of Commerce’ (1998) 49 SCL Review 925, 939.
54. ABA, above n 18, 57.
55. A holistic substance approach, taking into account various variables, has frequently been advocated. See, eg, Edward Brodsky, ‘Solicitation Via the Internet; Jurisdiction Over Claims’ (1997) New York Law Journal, at
56. Uta Kohl, ‘Defamation on the Internet—A Duty Free Zone After All? Macquarie Bank Ltd & Anor v Berg’ (2000) 22 Sydney Law Review 119.
57. Millennium Enterprises Inc v Millennium Music LP, 33 F Supp 2d 907, 922 f
58. GTE New Media Services Inc v Bellsouth Corp, 199 F 3d 1343,1350.
59. Contrast the claim made in ABA, above n 18, 65.
60. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (Document 301R0044).
61. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968, Brussels).
62. Explanatory Memorandum to the Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM (1999) 348final (28 Dec1999) OJ C376E, 16, available at . It was adopted by the Commission of the European Communities on 14 July 1999.
63. See Art 7 ‘Contracts concluded by consumers’; adopted by the Special Commission of the Hague Conference on Private International Law on 30 Oct 1999, at . See also Comments by the Rapporteur in Catherine Kessedjian, Preliminary Document No 12— Electronic Commerce and International Jurisdiction (2000, Ottawa) at , 6f.
64. See Art 2 of EC Regulation on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters: ‘persons domiciled in a Member State shall … be sued in the courts of that Member State’; Art 3 of Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters: ‘a defendant may be sued in the courts of the State where that defendant is habitually resident.’ On the difference between these two articles see Peter Nygh and Fausto Pocar, Preliminary Document No 11—Report of the Special Commission of the Hague Conference of Private International Law, at , 38 f.
65. Australian Competition & Consumer Commission, Enforcement Challenge: Enforcement of Consumer Protection Laws in a Global Market Place (1997), at , 29.
66. Fleming, above n 16, 25.
67. Enforcement Challenge: Enforcement of Consumer Protection Laws in a Global Market Place, 12–16.
68. Enforcement Challenge: Enforcement of Consumer Protection Laws in a Global Market Place, 13.
69. There is certainly evidence that consumers are discouraged from engaging in online transactions by legal uncertainties. See, eg, James Catchole, ‘The Balance between Technology and the Law’ (March 2001) Computer & Law 32, 32.
70. Christopher W Meyer, ‘World Wide Web Advertising: Personal Jurisdiction Around the Whole Wide World?’ (1997) 54 Washington and Lee Law Review 1269, 1282 (footnotes omitted), at , para II.B.1.
71. See also Tony Dawe, ‘Trust the postman to deliver e-results’, The Times (UK), E-Business Briefing, 12 June 2001, 4.
72. Clive Mathieson, ‘Seeing off the dot-coms’, The Times (UK), IT Plus/Law, 8 Mar 2000, 44.
73. Bradford L Smith, ‘The Third Industrial Revolution: Law and Policy for the Internet’ (2000) 282, Recueil des Cours 229, 329.
74. Akehurst, above n 6, 179. In domestic law this is, inter alia, reflected in the universal principle that the courts of one country will not enforce the penal laws of another country.
75. This overlap of the two categories has meant that the jurisdictional rules are discussed sometimes as part of prescriptive/legislative jurisdiction (see, eg, Mann, above 23; s 402 US Restatement (Third) of Foreign Relations Law) and sometimes as part of adjudicative/judicial jurisdiction
76. (see, eg, Akehurst, above n 6).
77. Jennings and Watts, above n 10, 457.
78. US Restatement (Third) of Foreign Relations Law, 458.
79. This maxim dates back at least to Ulricus Huber, De conflictu legum diversarum in diversis imperiis (1684)
80. reiterated by Justice Story in The Apollon 9 Wheat 362, at 370 (1824).
81. See Mann, above n 2, 24 ff.
82. France v Turkey, (1927) PCIJ Reports, Series A, No 10.
83. PCIJ Reports, 73 (emphasis added).
84. Harris, above n 10, 278.
85. PCIJ Reports, 278.
86. Strictly speaking, the Lotus case concerns only the constructive location of conduct, rather than the constructive location of the offender, within the territory. The offender has been deemed to be within the territory of a State when, eg, he owns property there, conducts business there or when there is an agent or employee within the territory. See Jennings and Watts, above n 10, 458 f.
87. France v Turkey, (1927) PCIJ Reports, Series A, No 10, 23.
88. PCIJ Reports, 24.
89. See also discussion in Mann, above n 2, 85 ff.
90. The most influential case, in which the effects doctrine received its classic formulation, is US v Aluminium Company of America, 148 F 2d 416 (1945) (the Alcoa case).
91. Mainly based on the Sherman Antitrust Act 1890 (US).
92. A. V. Lowe (ed), Extraterritorial Jurisdiction: An Annotated Collection of Legal Materials (Cambridge: Grotius Publications Ltd, 1983), 79 ff.
93. See, eg, US v General Electric Co, 82 F Supp 753 (1949).
94. Akehurst, above n 6, 195
95. commenting on Mann, above n 2, 103.
96. Akehurst, above n 6, 195 f, where he convincingly argues that the economic effects of restrictive business practices are in fact a constituent element of the offence.
97. Akehurst, above n 6, 199 ff.
98. See also s 402(1)(c) US Restatement (Third) of Foreign Relations Law (1986) and Comment d.
99. Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Judgment), [1970] ICJ Reports 3, 105 (emphasis added).
100. This echoes the balancing test advocated by Judge Choy in Timberlane Lumber Co v Bank of America, 549 F2d 597 (1976), 611–12.
101. Andreas F Lowenfeld, ‘Public Law in the International Arena: Conflict of Laws, International Law and Some Suggestions for their Interaction’ (1979) II 163 Recueil Des Cours 311, 329.
102. See also Dodge, above n 8, 137
103. In the Nottebohm Case (Liechtenstein v Guatemala), [1955] ICJ Reports 4, the International Court of Justice applied the principle of a ‘genuine link’ in the nationality context.
104. See also Lowe, above n 77, 94 (Australian support of the balancing of interest test, provided it is not applied by the judiciary), 108 f (Canadian approval of a balancing of interests approach), 207 ff (European Community commenting on the balancing of interests approach, arguing that it should also be applied at the rule-making stage).
105. Mann, above n 2, 45.
106. ICJ Reports, 43.
107. ICJ Reports, 50.
108. Eg, the United Kingdom, see Submission of the British Attorney General to the House of Lords in In re Westinghouse Electric Corporation Uranium Contracts Litigation in Lowe, above n 77, 170.
109. But cf Akehurst, above 6, at 208 (on the UK attitude to the effects doctrine).
110. 509 US 764 (1993).
111. Hartford Fire Ins Co v California, 509 US 764, 798 (1993).
112. eg, Dodge, above n 8.
113. See also Hannah L Buxbaum, ‘The Private Attorney General in a Global Age: Public Interests in Private International Antitrust Litigation’ (2001) 26 Yale Journal of International Law 219.
114. Philip J McConnaughay, ‘Reviving the “Public Law Taboo” In International Conflict of Laws’ (1999) 35 Stanford Journal of International Law 255, 257.
115. Minnesota Attorney General, Statement of Minnesota Attorney General on Internet Jurisdiction, at .
116. 714 NYS 2d 844.
117. People v World Interactive Gambling Corp, 714 NYS 2d 844, 860 f.
118. NYS 2d (emphasis added).
119. Australian Securities and Investments Commission, Offers of Securities on the Internet, Policy Statement 141 (10 Feb 1999, reissued 2 Mar 2000), PS 141.5–141.20
120. see also Electronic Prospectuses, Policy Statement 107 (18 Sept 1996, updated 10 Feb 2000), PS 107.102, available at .
121. ABA, above n 18, 83.
122. BGH, Urt. v. 12.12.2000—1 StR 184/00 (LG Mannheim)
123. reproduced in (2001) 8 Neue Juristische Wochenschrift (NJW) 624.
124. Incidentally, Toben had already been ordered to remove the relevant material by the Australian Human Rights and Equal Opportunities Commission on the basis that it is contrary to the Racial Discrimination Act 1975 (Cth): Jeremy Jones and Member of the Committee of Management of the Executive Council of Australian Jewry v Federick Toben (5 Oct 2000), available .
125. BGH, Urt. v 12.12.2000—1 StR 184/00 (LG Mannheim)
126. reproduced in (2001) 8 NJW 624, 628.
127. NJW, 626f.
128. NJW, 625.
129. People v World Interactive Gambling Corp, 714 NYS 2d 844, 859.
130. John F McGuire, ‘When Speech is Heard Around the World: Internet Content Regulation in the United States and Germany’ (1999) 74 New York University Law Review 750, 769 (footnotes omitted).
131. The Chief Executive of CompuServe was on appeal acquitted of the indictment of distributing child pornographic material: Oliver Zander, ‘Recent Developments in German Internet Law’ (2000) Oct/Nov Computer & Law 36, 36.
132. People v World Interactive Gambling Corp, 714 NYS 2d 844, 861.
133. Eg, the fact that the advocacy of racist theories is protected under the First Amendment of the US Constitution (Brandenburg v Ohio 395 US 444 (1969)) does not show that the ideas themselves received judicial approval but rather that it was perceived that market-forces can more effectively deal with them.
134. See David Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: Clarendon Press, 1993), 549.
135. Although the Paris court (like the courts in the other examples) never expressly acknowledged that this was the trigger for its assumption of jurisdiction, it would explain why other foreign online culprits have not been sued or prosecuted. See Lyombe Eko, ‘Many Spiders, One Worldwide Web: Towards a Typology of Internet Regulation’ (2001) 6 Communication Law and Policy 445, 472 f: ‘Though other online auction sites, such as e-Bay, display and auction memorabilia from Hitler's Third Reich, Yahoo! was sued because it had a French subsidiary…’. It may though be noted that the Paris court did not allow for the orders against Yahoo!Inc to be enforced against its French subsidiary and it even acknowledged the enforcement difficulties arising out of this. See judgment of 20 Nov 2000, at .
136. BGH, Urt. v 12.12.2000—1 StR 184/00 (LG Mannheim)
137. reproduced in (2001) 8 NJW 624, 625
138. although it seems that at the time of the ruling, Mr Toben had returned to Australia. See ‘Holocaust Denier Not Impressed by Ruling’, Frankfurter Allgemeine Zeitung (English edition) 13 Dec 2000, at .
139. Akehurst, above n 6, 235.
140. BGH, Urt. v. 12.12.2000—1 StR 184/00 (LG Mannheim)
141. reproduced in (2001) 8 NJW 624, 628.
142. These two approaches are not mutually exclusive and indeed inform the assumption of jurisdiction both in respect of private and public matters, albeit to varying degrees. As considerations of enforcement jurisdiction have influenced the outcome in private matters (see, for example, Australian case of Macquarie Bank Limited & Anor v Berg, [1999] NSWSC 526, available at http://austlii.edu.au) so is, of course, the very existence of, for example, the effects doctrine in international law evidence that jurisdiction may be asserted even in the absence of enforcement power and that fairness demands that States can regulate activity by which they are substantially affected.
143. Frederick A Mann, ‘Conflicts of Laws and Public Law’ (1971) 132 Receuil des Cours 107, 121.