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An Urgent Suggestion to Pour Old Wine into New Bottles: Comment on “A New Jurisprudential Framework for Jurisdiction”

  • Cedric Ryngaert (a1)

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Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.

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References

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1 Landauer, Carl, The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to Interna tional Law: A Reply to Daniel Bethlehem, 25 Eur. J. Int”l L. 31 (2014).

2 Ryngaert, Cedric, Jurisdiction in International Law (2nd ed. 2015).

3 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, art. 4, 1995 O.J. (L 281) 31; Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, art. 3, COM (2012) 011 final (Jan. 25, 2012).

4 Ryngaert, Cedric, Whither Territoriality? The European Union’s Use of Territoriality to Set Norms with Universal Effects, in What’s Wrong with International Law 434 (Ryngaert, Cedric et al. eds., 2015).

5 Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976); Mannington Mills v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979).

6 Protection of Trading Interests Act 1980, c. 11 (U.K.).

7 Gerber, David J., Extraterritorial Discovery and the Conflict of Procedural Systems: Germany and the United States, 34 Am. J. Comp. L. 745, 776 (1986).

8 Id. at 778.

9 Some states explicitly authorize such action. E.g. Belgian authorities, pursuant to Article 88ter of the Belgian Code of Criminal Procedure, are authorized to remotely access (copy) a user’s data held in computer systems based abroad, provided that they notify the foreign state. The law does not require that the foreign state consent. Such techniques can be said to be in tension with the prohibition of enforcement jurisdiction.

10 Ryngaert, supra note 2, at Chapter 5.

12 Joined Cases 89, 104, 114, 116, 117 & 125 to 129/85, A Ahlström Osakeyhtiö v. Comm’n, 1988 E.C.R. 5193; Hartford Fire Insurance Co v. California, 509 U.S. 764 (1993).

13 Case C-366/10, Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change (ATA), 2011 E.C.R. I-13755. See further De Baere, Geert & Ryngaert, Cedric, The ECJ’s Judgment in Air Transport Association of America and the International Legal Context of the EU’s Climate Change Policy, 18 Eur. Foreign Aff. Rev. 389 (2013).

14 Case C-424/13, Zuchtvieh-Export GmbH v Stadt Kempten, EU:C:2015:259.

15 See Indictment, United States v. Jeffrey Webb (E.D.N.Y. 2015).

16 Scott, Joanne, Extraterritoriality and Territorial Extension in EU Law, 62 Am. J. Comp. L. 87 (2014).

17 I have to concede that in the two European examples I gave, reasonableness was indirectly applied. Although having obtained the green light of the European Court of Justice, the European Commission refrained from actually applying the Aviation Directive against foreign operators to give multilateral negotiations a chance (“stop the clock”). This could be characterized as “reasonableness after the fact.” See Regulation (EU) No 421/2014 of the European Parliament and the Council of 16 April 2014 amending the Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, 2014 O.J. (L129) 1. In Zucht vieh, the Court held that authorities “had a certain margin of discretion allowing it to take due account of the uncertainties involved in a long journey, part of which was to take place in the territory of third countries” (para. 52). In so doing, it implied that the Directive need perhaps not be applied in full, although it went on to limit this “reasonableness” to cases of conflicts with local legislation (a rather poor understanding of reasonableness in fact).

18 Mills, Alex, Rethinking Jurisdiction in International Law, 84 Brit. Y.B. Int’l L. 187 (2014).

19 Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic (1846).

20 Teitel, Ruti G., Humanity’s Law 75 (2011) (pointing to a premodern-state understanding of international law subjectivity, in which peoples and individuals played a role alongside states).

21 Id. at 171 (noting the opportunity for persons and peoples to shape the law to which they are subject, and to shape the relevant values that are at issue).

22 Benvenisti, Eyal, Sovereigns as Truestees of Humanity: On the Accountability of States to Foreign Stakeholders, 107 AJIL 295 (2013).

23 See for a philosophical exploration: Jens Bartelson, Sovereignty as Symbolic Form (2014).

* The author appreciates the financial support from the European Research Council (Proposal 336230 – UNIJURIS) and the Dutch Organization for Scientific Research (No. 016.135.322).

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