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Jurisdiction On The Internet - The European Perspective
An Analysis Of Conventions, Statutes And Case Law


JURISDICTION AND COMMERCIAL MATTERS
  1. Introduction

    The purpose of this memorandum is to provide some examples on how issues concerning jurisdiction in Cyberspace are solved in a European context.

    In Europe little case law concerning jurisdiction on the Internet has so far been established. Due to this one inevitably has to turn to statutory law. As most legal systems in Europe are civil law systems, solutions based on statutory law should anyhow not be neglected. However, to the authors' knowledge, so far no Internet specific statutory solutions have been enacted in Europe. Therefore, one has instead to turn to more general international or national law covering issues of jurisdiction.

    In cases of cross border transactions, or in other cases with an international dimension, jurisdictional issues have traditionally been an issue for nation states to decide on, i.e. within the framework of international law. This has also been the case in Europe, but during the last half-century such issues have increasingly become subject to international conventions and treaties. The nation-states have increasingly realized the need for conformity. Thus, there are conventions in various fields, such as Family law and Commercial law. However, in other fields such conventions are lacking and there one is bound to study each country individually. This is especially evident within the field of Criminal law.

  2. Commercial Matters

    As regards commercial matters in a European setting, the main non-national bodies of rules covering jurisdiction to prescribe and jurisdiction to adjudicate are the following.

    1. The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention).1
      The convention deals with the issue of jurisdiction to adjudicate and also covers enforcement of foreign Courts' judgments.

    2. The Rome Convention on the Law Applicable to Contractual Obligations (the Rome Convention).2
      The Rome convention determines which state's substantive law that shall be applied in a certain case.

  3. A Simple Case Study: On-line Shopping

    The following situation shall be used to exemplify how the above mentioned conventions function. A company by the name of "Buzzware", situated in Germany, is marketing its product on a Web-site on the Internet. The products are natural objects that are sent to the buyer by ordinary mail. A buyer, situated for example in Belgium, can through the company's Web-site acquire information about the products and he can also order products by filling in a form and submitting the form to Buzzware. The buyer has to state his credit-card number and the company will charge him for the goods accordingly.

    1. Jurisdiction to Adjudicate
      1. The State of Domicile.
        According to the Brussels Convention persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state.3 Consequently, if the Belgian buyer in our example wants to file an action against Buzzware because they have sent him faulty products, a German Court will according to this rule have sole jurisdiction to adjudicate.

        In order to determine whether a party is domiciled in a contracting state a court shall apply its internal law. The seat of a company shall be treated as its domicile; however, in order to determine that seat the court shall apply its rules of private international law. Thus in our example this will be decided by the internal law of the country in which the Belgian buyer files his action.

        The relevance of placement of equipment such as servers in another country, or the operations of the equipment or the service in general from another country are aspects that probably can affect the question of establishing domicile. These issues have so far, to the authors knowledge, not been widely discussed.

      2. The Place of Performance.
        There are some exemptions from the above mentioned main rule. This will in certain circumstances provide a plaintiff with a choice as to where he may sue the defendant. In matters relating to a contract a person domiciled in a contracting state may be sued in another contracting state then the domicile state, namely in the state where the contract should be performed, i.e. the place of performance determines jurisdiction. Thus, courts in the state where the obligation has been, or should have been, fulfilled have jurisdiction. In the case concerning Buzzwares´ failure to deliver products to the Belgian buyer, the buyer can chose between filing an action before a German Court, (domicile of the defendant), or file an action before a Belgian Court, (place of performance).

        A discussion concerning the place of performance in electronic commerce when the product is provided over the Internet is a discussion that would have bearing also as regards the Brussels convention.

      3. The Consumer-Relation.
        There are rules in the Brussels Convention, based on consumer protection, which lay down that a consumer may chose between filing an action either in the country in which he is domiciled or in the seller's country of domicile. However, the seller can only sue the consumer in the consumer's country of domicile. So, in case the Belgian buyer fails to pay, and he turns out to be a consumer, Belgian courts will have exclusive jurisdiction to adjudicate the dispute.

      4. Prorogation of Jurisdiction.
        According to the Brussels Convention the parties to a contract have the right to make an agreement as to which court is to have jurisdiction to adjudicate a dispute. This agreement will hinder a trial in another court, but only if one of the parties make an objection concerning the court's jurisdiction. There are, however, certain formal requirements that must be fulfilled for such prorogation to be accepted under the Brussels convention.

        If Buzzware has, as a condition for business, on its Web-site provided that all disputes concerning contracts entered into shall be adjudicated by a German court such a provision will only be enforced if it fulfills the formal requirements set up by the Brussels convention. These are in short; 1) that the agreement shall be in writing or evidenced in writing, or 2) in a form which accords with practices established between the parties, or 3), in international trade or commerce, in a form which accords with a usage of certain dignity.4

        The requirement for writing does not necessarily only include handwriting on paper, however, the provision still has to be interpreted in relation to conditions provided on a web site. Here as in so many other cases the functional requirements which have lead to a rule requiring writing have to be identified and solutions acceptable in an electronic commerce environment drawn up.

        If the buyer is a consumer, such provisions will in no case have an effect due to the exclusive rules regarding consumers.

    2. Jurisdiction to Prescribe

      1. Freedom of Choice.
        The Rome Convention lays down that the law chosen by the parties shall govern a contract. The choice does not have to be in writing, but it must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. Thus, this requirement has to be interpreted in different Internet environments.

      2. The Closest Connection.
        In the absence of choice of applicable law, the Rome Convention expresses the principle that the law of the State with which the contract is most closely connected shall govern the contract. Furthermore, there is a presumption that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a corporate body, its central administration.

        As regards the contract between Buzzware and the Belgian buyer, according to this presumption, German law would govern the contract since the contract's characteristic performance is to deliver the products.5

      3. Certain Consumer Contracts.
        Even in a consumer-relation the parties are under the Rome Convention in principle free to chose applicable law. However, the consumer is protected so far that he can not by such an agreement be deprived of protection that is given to him by mandatory rules of the law of the State in which he habitually resides. This exemption is applicable if firstly, the consumer, before concluding the contract, was subject to a special invitation, or advertising, in the State of his habitual residence. Secondly, if he has taken all necessary steps on his part for the conclusion of the contract in that country. Thus, the Belgian buyer would, provided he is a consumer, be protected by mandatory rules in Belgian law, even if German law governs the rest of the contract.

  4. Conclusion

    Also in a European setting issues concerning jurisdiction still have to be studied in a national context, i.e. in relation to a certain nation-state's legal rules. However, regarding commercial matters, as conventions such as the Brussels Convention cover a number of European states these international rules will be essential in the interpretation of jurisdictional issues on the internet. When studying the conventions, it becomes clear that they are not updated and adjusted to the particular elements of electronic commerce. Already at this stage it can thus be concluded that the Brussels Convention hardly can be said to provide ideal solutions when it comes to electronic commerce, especially in cases when the products are delivered over the Internet, i.e. digital products. However, conventions such as the Brussels Convention are probably the only feasible solution as regards jurisdiction in cyberspace. Thus, the solution in the European context for internet jurisdiction issued would be to make a thorough analysis of changes and amendments required due to the new technique.


JURISDICTION AND CRIMINAL LIABILITY

  1. Introduction

    Criminal law is an area where countries traditionally have been reluctant to conclude conventions and treaties concerning jurisdictional issues. If there is cooperation between countries, such cooperation is generally more limited. Each country wishes to determine by itself which criminal laws to enact and how to exercise its jurisdiction to enforce these laws. Compared with Commercial law little has been done to regulate jurisdictional issues within an international setting. As the influence of the Internet grows such issues need to be discussed.

  2. Illegal material on the Internet: A Case Study

  3. Discussion

    1. Jurisdiction to Prescribe
      It follows form the concept of State sovereignty that German authorities have the jurisdiction to prescribe that it is a crime to provide nazi propaganda to the German population and this even when so is done over the Internet. This also allows Germany to enact laws making providers of on-line services operating in Germany liable for what their users do.9 The only two ways that Germany could lose these rights is either by entering an international agreement, a convention, which limits the country's jurisdiction to prescribe in these issues, or by adhering to International custom with the same content, if there is a custom.

    2. Jurisdiction to Adjudicate

      1. The Duty to Not Violate Another State's Sovereignty.
        It is a well-established principle within International Law that a State has the right to exercise jurisdiction to adjudicate over property, persons, acts or events occurring within its territory.10 Thus, German authorities have the right to decide what is a crime and to prosecute and punish persons committing crimes within its territory. However, it is not so clear that German authorities may exercise its powers against a person carrying out similar activities but from Austria. It is clear that they have no right to intervene and arrest the person on the territory of Austria without that State's admittance, This would violate Austria's sovereignty and thus be a breach of International law. The German authorities will only be able to exercise their powers over the suspect if Austria extradites him to Germany, or if he is found on German territory. This could pose a problem in the context of Internet, since it is imaginable that a person will place himself in a country where he will not risk to be prosecuted or extradited for the crimes that he is committing in other countries over the Internet.

      2. Personal Jurisdiction.
        According to International law, personal jurisdiction may be exercised on the basis of the Active Nationality Principle or the Passive Nationality principle.11 The former means that a State has jurisdiction over its nationals, regardless of whether the crime has been committed within the own country or abroad. If the person living and working in Austria is a German national, German authorities will thus according to international law have jurisdiction to prosecute and punish him. According to the latter principle jurisdiction is assumed by the country of which a person suffering injury or civil damage is a national. So, if German nationals suffer injury due to the material published on the Internet, something that can be hard to determine, Germany has, according to international law, jurisdiction, i.e. to bring charges against the person that under German law is committing a crime.

      3. Territorial Jurisdiction.
        As mentioned above, States have jurisdiction over crimes taking place within its territory. One problem in our case is how it should be determined where a crime has been committed. In Austria or in Germany? According to the Objective Territorial Principle, States have jurisdiction over acts commenced in another State but (i) consummated or completed within their territory; or (ii) producing gravely harmful effects on the social or economic order inside their territory.12 An example of the application of this principle is that German authorities will have jurisdiction over a person obtaining money by false pretences by means of a letter posted in Great Britain to a recipient in Germany. The same argumentation can be applied to the situation with crimes committed over Internet. The Act is committed in Austria but the effect occurs in Germany. A German Court has on these grounds jurisdiction to adjudicate.

      4. The Scope of the Objective Territorial Principle
        The Scope of the Objective Territorial Principleis debated within International Law, i.e. what constitutes gravely harmful effects on the social or economic order. Some States has interpreted this rather broadly and others have objected to these interpretations. The principle may not be used to exercise jurisdiction over a matter in a way that violates another States jurisdiction. Since the principle in its present form is somewhat vague as to its limits it would be preferable if the jurisdictional issues regarding crimes committed on the Internet would become regulated in for example an international convention. This would without doubt provide more certainty.

    3. Jurisdiction to Enforce
      As mentioned above, a State can not undertake measures that violates another States sovereignty. It would be a breach of International Law for a State to send its agents to the territory of another State to arrest a person accused of criminal offences against its laws. As it would to send agents to confiscate property if the property is located in another State's territory. The only possible way to enforce a decision abroad is with the admittance and co-operation with the authorities in the other State. There are already several international treaties concerning extradition. The conclusion of multilateral or bilateral agreement concerning these issues is one way to solve the problems concerning jurisdiction to enforce.

  4. Summary and Conclusion

    A conclusion that can be drawn from the case discussed above is that present International Law already provides a base for solutions to problems concerning jurisdiction over crimes committed over the Internet. What is needed is greater co-operation among States and international rules that regulate issues that remain vague or problematic.

    The rules can be achieved through the establishment of International Conventions or through the development of International Customary law. It is submitted that the former alternative is preferable due to the clarity it brings to issues in a rather quick way (if states can agree to a convention). Customary law has traditionally developed more slowly, but in modern times the concept of "instant custom" has arisen in areas such as Spacelaw. If State practice concerning a certain matter from the beginning is uniform and consistent and almost all States adhere to it, the usage will develop into binding international customary law rather quickly. However, considering the disparities among States as to technological development and control over Internet it is questionable if customary law is a reliable solution.


FOOTNOTES

  1. There is also the Lugano Convention on Jurisdiction and the Enforcement in Civil and Commercial Matters which is identical to the Brussels Convention as to substance but differs as to Parties to it. However, since the substance in the two conventions is identical it can be concluded that the main part of Western Europe is governed by the same set of rules.
  2. Convention on the Law Applicable to Contractual Obligations (80/934/EEC). The Rome Convention was set up by the European Union. The parties to the Convention are the members of the union.
  3. The rule is in accordance with the procedural maxim actor sequitur forum rei.
  4. It should be observed that this no in-depth ananlysis, for example there are special regulations concerning prorogation in cases when one party is domiciled in Luxembourg.
  5. Payment is a "secondary" performance.
  6. "Germany Indicts CompuServe on Internet Porn, Reuters, 16 April 1997.
  7. Id.
  8. New CompuServe porn Case. CNET. http://www.news.com/News/Item/0,4,9751,00.html.
  9. The concept of State Sovereignty is a basic principle within International Law, and means that a State has the power and the right to do what it wants within the confines laid down by International Law. For example, a State can not enact a law that interferes with another States sovereignty or that violates a convention or custom, i.e., concerning Human Rights, which it is bound by.
  10. Shearer, I.A., Starke's International Law, (London; Butterworht, 1994) p. 184.
  11. Ibid., p. 210.
  12. Ibid,. p. 187.
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