Introduction

The development of the Internet is accompanied by legal risks which induce law and economics scholars to study the question of the appropriate judicial order for efficiently treating the conflicts originating in cyberspace. It is generally accepted that public regulation, which deals with the majority of offline conflicts, is unsuitable or inefficient in the virtual world. A private regulatory system would offer a number of advantages. It is frequently justified by arguments such as the territorial incompetence of classical courts of jurisdiction, and their technical incompetence when faced with anonymous subjects such as those found in cyberspace. Public justice is also characterized by slow management and settlement of conflicts and by high administrative costs, notably in cases where conflicts concern small amounts of money.

The argument about the inefficiency of public regulation of cyberspace has led its authors to think about the ways in which a decentralized and “dejudiciarized” regulation could emerge, and what its organizational structure could be. The main question is how to attain better governance in cyberspace outside governmental control. A commonly studied idea is based on an analogy between the development of private rules, which are common to all cybernauts, and the adoption of the Lex Mercatoria which formed the mode of regulation of commercial activity in the Middle Ages (Deffains and Fenoglio, 2001). Some authors add that the Internet will indeed be regulated.