The Role of the Seat in Smart Contract Disputes Over the past few decades, international commercial arbitration has experienced major developments in various fields. A major recent development that will spread widely in the years to come relates to technology and the necessity of international commercial arbitration to adapt to the new needs of the market. The path of technological development in commerce is determined by forces other than the needs of legal practitioners. Moreover, the lack of real connection to a sole place, in disputes where the multi-parties have not selected the seat, can create serious obstacles for the arbitral proceedings in blockchain technology disputes. In this regard, smart contracts, however, appear to have identifiable parties with an identified physical point of connection that ultimately can be adapted to the existing place of the arbitration theory within the international arbitration legal framework.
Статья посвящена исследованию места и особенностей такого нового института в договорном праве России, как смарт-контракт.Исследован зарубежный опыт по этой тематике
Abstract This chapter argues that blockchain technologies structurally tend towards ‘judicialization’ and challenge the traditional, state-centric notions of jurisdiction and enforcement. After an introductory section, section II sets the scene by locating the emergence of blockchain technologies within the broader debate concerning the relationship between national and transnational law. Such a contextualization is crucial in order to develop a reliable understanding of the impact of this set of technologies on the state’s capacity to preserve its central role in the administration of justice through a system of courts. Against this background, section III investigates the effect of blockchains and smart contracts on the notion of jurisdiction, drawing lessons from the historical evolution of the concept and applying them to the current technological reality. Relying on empirical data, it is argued that the growth of blockchain technologies has given rise to a proliferation of private arbitral systems, generating a new division of labour between state courts and private adjudication. Finally, section IV of the chapter considers the emergence of self-enforcing smart contracts and its consequences for the traditional view whereby the state maintains a monopoly over the use of force.
Blockchain transactions are international by nature: each transaction can lead to a potential conflict between the laws of different States. The lack of uniform private law rules adopted at the international level makes it necessary to apply private international law rules to blockchain transactions in order to identify the situations in which a State offers the protection of its courts (jurisdiction), which law is applicable to the transactions (choice of law), and which conditions must be met for the judgment to have legal effect abroad (recognition and enforcement of foreign judgments). These three issues will be examined to determine whether existing conflict-of-law rules offer satisfying solutions for blockchain transactions. Proposals of necessary adaptations to improve legal security in the digital economy will then be made.
The bill of lading has, for centuries, been an integral component in the maritime shipping industry. However, the stagnation in the development of this legal instrument is contrasted with the exponential rate of development in other areas of commercial practice, which highlights the financial costs and delays associated with the use of bills of lading. The purpose of this paper is to present a modern alternative to the current paper-based bill of lading system that accounts for the practical and legal requirements of the incumbent instrument and also overcomes the deficiencies inherent in paper-based bills of lading. In the context of the regulatory uncertainty of bills of lading based on distributed ledger technology, this paper discusses approaches to regulating this new technology so as to achieve the same legal effects that the traditional, paper-based bill of lading provides. This paper presents two methods for regulating distributed ledger technology when applied to maritime shipping: the first is based on the principle of functional equivalence, which can be employed in domestic legislation, and the second is based on the Model Law on Electronic Transferable Records. I conclude that, while both approaches represent steps in the right direction, the latter would imbue this technology with sufficient legal certainty so as to spark a marine cargo carriage revolution and facilitate a productive disruption of the current industry practice.
In the rapidly developing cyber sphere dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments leaving the law behind as an ...
[excerpt] The concept of online dispute resolution (ODR) is not new. 1 But, with the advent of Web 3.0, the distributed web that facilitates pseudonymous and cross-border transactions via blockchain's distributed ledger technology, 2 the idea of, and pressing need for, appropriate dispute resolution models for blockchain-based disputes to support this novel system of distributed consensus and trust of which blockchain proponents boast, is a primary concern in rapid development. 3 The common goal of each project is to utilize smart contracts to facilitate "superior, quicker[,] and less expensive proceedings by eliminating so many of the tedious and protracted trappings of traditional arbitral proceedings, such as the sending and receiving of documents via courier.", Despite myriad approaches, all emerging blockchain-based dispute resolution services (BDR solutions) generally seek to bridge the divide between automated performance mechanisms, like smart contracts, and the human judgment traditionally required to settle legal disputes.5 How our existing legal frameworks must develop to ensure that smart contracts 6 facilitate, rather than frustrate, the parties' intent is a critically important question to ask as the blockchain stack's infrastructure and application layers are being built and, ultimately, scaled. Indeed, interest is high in the race to create alternative dispute resolution mechanisms to resolve disputes arising from blockchain-based commercial transactions that, due to the transnational, borderless, pseudonymous, and distributed nature of blockchain, clearly necessitate international solutions.7
A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. (If the forum selection is exclusive, then that party also promises not to initiate litigation anywhere other than in the chosen forum.) The use of such a clause in a particular case may therefore raise a set of questions under contract law: Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, however, a forum selection clause affects not only the private rights and obligations of the parties, but something of more public concern: the jurisdiction of a court to resolve a dispute. The enforcement of such a clause therefore raises an additional set of questions under procedural law. For instance, if the parties designate a court in a forum that is otherwise unconnected to the dispute, must (or should) that court hear a case initiated there? If one of the parties initiates litigation in a non-designated forum that is connected to the dispute, must (or should) that court decline to hear the case? This Report analyzes the approach to these questions in the United States.1 Part I provides a brief background on the general attitude toward forum selection clauses. Part II surveys current state law on their use, in consumer as well as commercial contracts. Part III addresses the interpretation of forum selection clauses as either permissive or exclusive. Part IV analyzes the effect of permissive clauses in state and federal courts. Finally, Part V turns to choice of law problems, particularly as they arise in the course of litigation in federal courts. Historically, forum selection clauses were viewed as contrary to public policy and therefore invalid.2 The most frequently invoked justification for this rule, relevant only in connection with exclusive clauses, was that parties should not be able to deprive a court of jurisdiction it would otherwise have over a dispute.3 However, other explanations for the traditional approach—relevant in connection with permissive as well as exclusive clauses—appear in the case law as well. Some courts rejected forum selection clauses out of suspicion that the parties’ intent in selecting a particular forum was to circumvent otherwise applicable substantive policies. Others worried that permitting parties to choose their forum would “bring the administration of justice into disrepute” by highlighting considerations such as the relative intelligence or impartiality of particular judges.4 Overall, the sense was that “[t]he jurisdiction of our courts is established by law, and is not to be diminished, any more than it is to be increased, by the convention of the parties.”5 Over time, and given increasing recognition of the need for certainty and predictability in interstate and international commerce, adherence to the traditional view diminished. This shift manifested itself in the case law6 and elsewhere. For example, in 1968, the National Conference of Commissioners on Uniform State Laws adopted a Model Choice of Forum Act7 based on the Hague Conference’s 1964 Convention on the Choice of Court. Although the model law gave courts considerably more discretion than the Convention did in enforcing forum selection clauses, its starting point was that the use of such clauses was desirable.8 And the Restatement (Second) of Conflict of Laws, adopted in 1971, included a section stating that a forum selection clause will be given effect “unless it is unfair or unreasonable.9 The real turning point in U.S. doctrine was the Supreme Court’s 1972 decision in The Bremen v. Zapata Off-Shore, Co.10 The case involved a forum selection clause included in a contract for towage negotiated by the U.S. owner of a drilling rig and a German towing company. The agreement designated the London Court of Justice as the exclusive forum for litigation; however, when its rig was damaged, the U.S. company brought suit in the United States District Court in Tampa, Florida. The to or the on the of the forum selection that such were the court this and its decision was The U.S. Supreme Court then and that the forum selection clause was to a of the that as as I to of the Court’s that have frequently in and the rejected the that contractual of jurisdiction and venue were as against public Court did that the of a particular forum selection clause be on the of in contract such as or or of by the the a of of exclusive forum selection as a general the parties that any litigation would in the designated any other court should to hear the the on a court other than the designated court to an otherwise and exclusive forum selection if enforcement would be under the the Court that the forum would be so that the would be of in or if enforcement would a public policy of the forum in suit was The Bremen decision have effect for it involved an international its of a of the Court to the of international the have to the international the case involved the of and the decision was therefore on federal courts of jurisdiction on state the Bremen these courts jurisdiction in adopted the Bremen it in contracts. State courts to the Bremen in as well as international the decision the U.S. approach to forum selection clauses. The of the Bremen the of forum selection clauses only to exclusive forum selection clauses, and so this Report only in The of the Court’s to the general of private as to forum to permissive clauses. The Part addresses the of such under current law. the of U.S. forum selection clauses, permissive and exclusive, viewed with A have the of such based on the Model Choice of Forum most however, the and of forum selection clauses by law. that law the Bremen it the of that case into that the for example, courts have adopted a that analyzes the forum selection clause was to the it should be as exclusive or it the parties and the in and the in of enforcement by a that it is under the or for such as or Some have also adopted to (or litigation contracts. A of the traditional to forum selection clauses. one this is in the case that forum selection for example, provides that or in a by any party is enforcing rights under the contract in is as it is against the public policy of however, courts have these the toward the more enforcement of forum selection is to as the the of these general is on exclusive forum selection clauses that to deprive courts of jurisdiction they would otherwise have the use of forum selection clauses in of the of is particularly For instance, a of and have adopted to with a of substantive Some to choice of court. for instance, in a agreement that jurisdiction or venue in a forum of this Others general any contractual that would as a waiver of the rights by the under the of the courts to and to a forum selection clause as a waiver of any of the Laws of For example, law any contractual that as a waiver of any of the rights in the A court the forum selection clause included in a agreement to be it the to for a by a The any agreement that that the an against the or in a venue of And in forum selection clauses included in the these of must be a general policy of toward forum selection clauses. the of is not the of private parties to of jurisdiction and it is contractual parties of The effect of such on choice of court is to the of particular of unfair any clause in a a forum selection clause be as on the of instance, the of a or in the of one of the parties instance, that it was procured by duress, fraud, or the is an in and of and other However, parties frequently the of forum selection clauses in on the of that it would be unconscionable to to a clause that not Bremen itself this on the of the clause in that And Supreme Court did the a for example, the Court the that forum selection clauses their enforcement not however, in v. the Supreme Court to the of The Bremen to for the of form The case involved an exclusive forum selection clause included the on a for on a A federal court of that the forum selection clause was and on that to permitting the to in a court other than the one The Supreme Court The Court the forum selection clause the it would any clause in a contract on a it or it it for that parties to the contract an exclusive forum selection the in the form of a on the in it be by its and the the form of on the the Court the clause was not Although the clause was not and the parties the clause was therefore to the Bremen was an and therefore on federal courts and state courts only in that however, the decision a and it is in of contract is that courts have on the of its in a of For instance, courts have to forum selection clauses included in consumer on the of the that they of the forum selection This is a courts that parties of forum selection clauses if the relevant clauses in or otherwise set other in the if the parties did not in the forum selection clauses in parties of and have to be for This is a Overall, the general that such in the consumer as well as the commercial is by well U.S. law, as as is by of is not for a contract to be as a general the that a forum selection clause only one party not it courts to clauses that objections to jurisdiction and venue by only one of the contract The is of clauses that the choice of court permissive for one party and exclusive for the Overall, the United is a policy in of enforcing forum selection clauses. courts party enforcement of a clause a of Forum selection clauses raise a of questions of the parties to only contractual out of their or to their they to federal as well as state courts in a and they the choice of court to be exclusive or This Part on the of these The general in the United States is that a forum selection clause will be as permissive it of most the or of such is A permissive forum selection clause the parties’ to or in an a exclusive agreement not only a forum but the or in to litigation a clause these interpretation is more is approach to in most have adopted to as a against as a of the against one case this the court that of the jurisdiction a jurisdiction it be or a of such a a of of in this that the jurisdiction of any other for instance, clauses stating that the of jurisdiction be and be by the law of the State of with venue in were viewed as for of such as or and as to Some also to in the of such when they the parties’ intent the one for example, the court a forum selection clause in the parties to as the venue for to be exclusive the as a venue interstate or (or to the jurisdiction of more than one By selecting one of in as the exclusive forum for parties able to the of as well as the of jurisdictional However, it is not for parties to such of the U.S. case law and on forum selection clauses on that the effect of exclusive when a party to such an agreement it by litigation elsewhere. other they on the of forum selection in the jurisdiction of a court. such they more than a to jurisdiction and venue in the either to elsewhere. However, forum selection clauses, permissive clauses, may a as in that the parties may a forum that is not otherwise connected with the such the the of the parties also the effect of jurisdiction on a court that would not otherwise have Part that Part turns to the effect of permissive forum selection clauses on the U.S. courts have the discretion to decline jurisdiction on the that litigation in forum would be more or on this may be by the or initiated by the court The to be not only the of the parties, but a of other and as well. effect of a permissive forum selection is to the to the of venue in the on the that court would have more the is the court will the parties’ forum selection clause in to decline of its The of jurisdiction over the to by the United States state and federal courts have that the of jurisdiction and an and therefore be by a a as a for the of jurisdiction over a The traditional rule, however, was that be given only the of this courts to by Over time, this and courts to such waivers, in the form of forum selection clauses, as this is with to it is to as the and waiver of with this view of the jurisdictional as a courts that jurisdiction on the of is when the forum is otherwise unconnected with the a courts have that the designated forum a to the but these to be The of a forum selection effect on jurisdiction a as well. Over the course of the as the Supreme Court’s the under it was viewed as to jurisdiction over state a its courts to jurisdiction Some of these to the and state courts to jurisdiction on any not with however, particular of in jurisdiction may be over that use this form of a state court may jurisdiction over a only on one of the If a not as one of the of then the the court is to jurisdiction on that if the litigation is otherwise unconnected with the This itself in federal courts as they the of the state in they the of in to forum selection clauses the of This is with the general that to not the to on it was to jurisdiction over to however, the is that jurisdiction be only when is If that is then a party to a forum selection clause may that its waiver of the court jurisdiction over other if the of the chosen state not as one of the then a forum selection clause should not be is other for the of This is the in A of have under they to jurisdiction on the of a forum selection A of these based on the Model Choice of Forum one section of in the court would jurisdiction but for the of the Others to to the state in that the contract in also a choice of law in of law, and that the a of these one in other of contract would not be to jurisdiction on the court. if the court in the initiates litigation jurisdiction over the and the parties, the may that venue is either or and that the suit in court. The of a forum selection clause may the procedural If a in state a that also the jurisdiction of a federal court in that the a to the case to the federal the to a forum selection clause the state court as a the that agreement a waiver of the this courts have adopted a that such a waiver be and is by the to or by a particular state court as the exclusive forum for A permissive forum selection clause not this and therefore not a to is procedural by a state court a case to a more forum in state (or However, a to a case on the of under the doctrine of forum to this law and have it in procedural Although is the in they the approach that was as a of federal law in v. to on the of forum must be an forum must be is a in of the choice of the of private and public in the case must in of The private of the to be of to the of and the other that into of a case and The the state of the the on in a that is not to the dispute, and the of the court with the law to be have adopted that their courts to jurisdiction over that forum selection clauses courts. of is by clauses the of on the of a court may on that This is when an exclusive forum selection clause is a forum selection clause may as a waiver of a to the of the designated it not the other relevant And permissive forum selection clauses, by not the choice of may be relevant to the The is a permissive forum selection clause should be given in a forum this the chosen to initiate litigation in the designated and the to the in of other such a is to is in the that state courts to this Some courts have that a permissive forum selection clause suit is in the designated and is to under the Bremen that that the clause was as a of contract law, a party to litigation would need to that the designated forum was under that courts the traditional forum but a on the to a forum to it This is on the that the its to to that forum on the of its is one of the most in the Finally, courts to the with for the forum selection clause however, to decline to Although it to be a court that designated in a and exclusive forum selection clause a in a permissive may also forum on its one a court a of contract brought by a against a The contract included an exclusive forum selection clause in of The to the on the of forum The court that the Bremen and that the to that enforcing the clause would be unfair or However, it then on to forum on its that the connection to and that in the the court that it would be courts to the of and the the The initiates litigation other than the designated and the to in of the U.S. law, is given to a choice of and in this of case the general is that will not be the traditional forum in of that courts to a permissive forum selection clause when these however, a in the of a permissive forum selection clause the it may the court to to the choice of it the designated forum as an in the sense that the to jurisdiction the of the forum And it that the its to to the of that these permissive forum selection clauses in not in U.S. federal courts is by a general that the venue of brought in as otherwise by the under a may initiate litigation in a particular for example, if a of the to the A of additional the by a of when venue is when a case is in the of a to a case on this and under the court in a case is either it or it to or in it have additional when venue is but the doctrine of forum under a case will be in of an forum in a state or and under a case will be to a more court the federal a case in v. U.S. District the Supreme Court the these and a forum selection that the initiated litigation in a forum other than that designated in an exclusive forum selection to that the to the suit for venue under and The Court rejected this that the exclusive for venue is or the federal venue in other as as the of venue is or not the parties have in to in a the Court the only to use in a forum selection clause is an to federal court under in the case of an agreement a state or a under forum The Court on to the effect of an exclusive forum selection clause on these of The in to court the U.S. federal and so the Court the that should be a forum selection clause in that the enforcement of forum selection clauses party and of the justice a under to the of the parties should a of the be The Court particular of a forum selection clause for venue when a to suit only in a particular its choice of any other forum contrary to the rule, be given in the of the court should the parties’ private only as the Court to a when a party suit in a forum in of a forum selection a to the forum will not with it the choice of law have this decision the traditional to exclusive forum selection Although involved a federal the also the to be given a forum selection clause in a to on the of forum in the of a (or the state the federal have not in the they a forum selection clause when forum And have on the that the under forum should be more than under the to of the than to however, the Supreme Court in stating that was a of the law on to state that should to to for forum in clauses to state or a of litigation under its to permissive forum selection clauses. is that the and of the the Court relevant only when an exclusive forum selection clause is on that courts have to the of in permissive forum selection clauses, with Some however, have adopted the of with to the in initiated in the designated forum and in initiated elsewhere. one the to the case out of the forum designated in a permissive forum selection The court that the its to the of that the private in of the in the designated and that would be only the public in of a the to the and interpretation of forum selection clauses on applicable may interstate and international choice of law is therefore an a of that be chosen to such the law of the the law chosen to the either by the parties, in the case of that also a choice of law or of the choice of law rule, in the case of that and in a case in the forum is not the the law of the the United choice of law is a of state than federal law, and state is one relevant to this on a court will forum law to of in the the effect of a permissive forum selection clause is on of jurisdiction and that effect is by forum law. A state court will its when a forum selection effect on its for instance, and its procedural when its effect on a the under a forum selection clause be given a court in that state will that the effect of a forum selection however, a court must the agreement is and it should be as permissive or exclusive. substantive contract law and therefore a lawsuit is in a state other than that law the it is for a of to For example, the forum state have adopted a the of a forum selection the state law the contract have such in to parties with such most with to exclusive forum selection clauses, they permissive as well. a permissive forum selection clause that is under forum law but as against public in the state law the that if the litigation is otherwise unconnected to the the law that the contract to the of would the forum selection and the for jurisdiction over the in the the law of the forum to the of by would the also arise in the effect of a forum selection clause on a to on the of For instance, in a state that would a permissive forum selection clause as a in forum law to the agreement would the procedural to the of a forum selection clause in a of Some contractual for example, based on or duress, or the of a more to the effect of a forum selection for instance, based on a policy of general to private jurisdiction or frequently as and to forum law. one court a general rule, the forum selection clause is and is a procedural that must be in with the law of the forum general a choice of law in the in the based on to substantive of contract However, under current based on such also as procedural and under the law of the Overall, of the case law that the of U.S. courts to questions of in questions of a contractual state courts Some over choice of law and with of contract interpretation as court the of the contract is and if it the contract will be as forum selection clauses when the contract in also a choice of law, courts the chosen law to questions of Others however, particularly but not in the of international these the courts forum law in the of a forum selection forum selection clauses when the contract in not a choice of law, courts more to forum law to questions of will the of the choice of law in an to the law the Some courts this approach by that the choice of court was also a choice of the courts may be This to forum law in the of forum selection clauses may to This is particularly in international the U.S. approach to one a in of permissive than exclusive forum selection clauses in so that of other The jurisdiction of U.S. federal courts is not to under federal is of the parties to a the federal courts also have the to based on state contract law. a federal courts frequently hear out of interstate and international contracts. the of as in v. federal courts in must the substantive law of the state in they that However, they not procedural law. This questions the of the that forum selection clauses federal courts frequently forum selection clauses in the of a to venue to federal court. a of Supreme Court provides a to the the v. the initiated litigation in a court in in of an exclusive forum selection The to the case to the designated The court that on the that the effect of the forum selection clause was by such as a of public the case the Supreme it that the effect of a forum selection clause on the to venue was a of federal procedural law, by a the federal courts were to that law, to the of any otherwise applicable state law. This is a that federal law, in the form of any state law the of a forum selection that the Court in a that the federal would be to the of state law in on jurisdiction as The Supreme Court this approach in the decision the law the of forum selection clauses in the of The case law this federal courts to any state law forum selection the of a to it is law a federal court should in the of a forum selection on this point is federal courts in have that the of a forum selection clause is and should be by the Bremen as a of federal By this a federal court the of courts have the questions of as a of substantive contract This should by choice of law Some courts that to to the law chosen by the However, state federal courts over the choice of law the substantive law of the forum in the of a forum selection Although may have state law the effect of a forum selection it did not state law on of substantive contract law. forum selection clauses may a of questions under that law, their as exclusive or federal courts in state law to approach is not Some federal courts federal in forum selection clauses, the of applicable Others they as to questions interpretation of the on the that enforcement of a forum clause interpretation of the clause it be federal law to interpretation of forum selection clauses federal law on this to these is that a choice of court must in to be as Others that the the effect of forum selection clauses in federal courts is federal questions of a clause is exclusive or be by of law in an otherwise Although courts in the of a the of the state in they in to the substantive law the the by that federal law and the relevant state law in of contract is to a general the of forum selection clauses in U.S. in consumer as well as commercial they will be given is more to the of and that For any particularly for to the of procedural law the U.S. federal is of I to for on a and to for
The East Asian cryptocurrency market has burgeoned in the past few years, especially in Japan, China, and South Korea. This means that more and more people are involved in dealings over this novel form of ‘economic value’. But, what exactly are people selling and buying? Traditionally, things can be divided into moveables (i.e., tangible things such as books, physical money such as coins or notes, or intangible things such as debts etc.) and immoveables (i.e., land). While the rules pertaining to transactions in such traditional things are well recognised, the same cannot be said of cryptocurrencies. The uncertainty of their characterisation renders it difficult to be confident in transaction finality as a matter of law and also potentially exacerbates dispute resolution. Two issues merit exploration: Is a cryptocurrency a thing as such? If so, can it be the object of a property right? Many other relevant legal issues concerning cryptocurrencies (i.e., how they are protected by law, the legal rules relating to their transfer, or systematic deployment etc.) would hinge upon the above two fundamental issues. Their characterisation may also be significant for conflict of laws characterisation purposes as many of the essential infrastructure for the trading of cryptocurrencies (e.g., mining and exchanges) are located in East Asia. This Chapter aims to survey the major East Asian civil law jurisdictions (i.e. Japan, China, and South Korea) to ascertain how they may address these questions in the light of their respective laws.
The blockchain technology has brought a new tool which can change the way we make legal contracts. This tool is called “smart contracts”. Smart contracts are self-executing contracts which decrease the human intervention and the need for intermediaries for the execution of a contract. This thesis discusses whether smart contracts can really replace the traditional way we conclude legal contracts by comparing them with classic legal contracts based on the Principles of European Contract Law. It introduces a technical background about the blockchain and smart contract technology and questions whether smart contracts can be formed, valid, and executed as legal contracts. The thesis presents the legal challenges of smart contracts and finally concludes that smart contracts can and will replace the traditional way of making legal contracts in the distant future.
Introduction For this paper Mobile Geolocation will be used to describe the determination of the spatial location of a personal mobile communications device from the signals it emits. The signals may be analyzed either in the device or in other locations. The phrase ”location based services” is often used to describe the processes used for geolocation. Geolocation may involve both retrieving identification and locational data generated by the mobile device, or interpretation of the signal in relation to receiving stations. Mobile Geolocation has its roots in the work of Robert Watson-Watt and High Frequency Direction Finding. HF/DF was developed originally in the 1920s to track lightning and later adapted to track German submarines and aircraft transmissions by virtually instantaneous triangulation using a small antenna and sophisticated electronics. However such technology did not automatically give the identity of the source. GPS systems developed in the 1980s allowed the receiver to calculate its position by analysis of transmissions from special satellites. However GPs receivers did not routinely broadcast their location. Cellular telephones developed in the 19990s to create portable communication devices. These devices “identified themselves” to the cellular towers at all times when they were on so they could receive communications. By the year 2000 WIFI technologies were spreading throughout the world. WIFI technologies gave the increasingly smaller mobile computers massive increases in internet connectivity. Since 2000 the changes have largely been in improved higher speed, smaller more capable mobile devices and greater penetration in the marketplace. However the key change has been the integration of technologies. Phones, computers GPS’s and cameras are now in a hand held package. A mobile phone is now a camera, when it takes a picture its GPS data may be engrafted to the picture. Signal routing from a WIFI system can routinely include the location of the WIFI hotspot. Telephones can be located at any time and linked to the WIFI internet activity. The capability of processing these signals has also exploded. (1) The consumer is essentially faced with a stark choice. Disconnect from the entire connected world, or expose precise geolocation information to a vast number of potentially hostile parties. Many different kinds of parties want access to the geolocation information. Rental car companies can track their fleets, police officers can track suspects, parents can track children, spouses can track one another. stores can track customers and security services can track dissidents. Courts are increasingly asked to resolve very complex issues involving these technologies. Different legal systems and different legal traditions approach the problem in very different ways. The technology may be worldwide but the legal controls are supposedly local. The problem of course is that as long as communication networks are international there may be little or nothing even a national government can do. Unless, like the individual it cuts itself off from the global community. This paper cannot and does not present any “solution” to these problems. What it suggests is an analytical framework suitable to the problem. The framework is called a Technico-legal revolution.(2) A technico-legal revolution occurs when a given technological advance cannot be clearly analogized to existing legal structures. A technico-legal revolution consists of a series of stages in the legal response to the novel developments in technology.(3) The purpose of this paper is to briefly describe the theory of a technico-legal revolution, point out past examples of such revolutions, and then apply the theory to the developments in Mobile Geolocation. Understanding the development of legal analytical principles applicable to Mobile geolocation is an example of the legal system's process of adapting to technological change. TLR analysis allows researchers to anticipate and discount the spurious legal arguments inevitably made each time a new technology is developed. The framework suggests that each technico-legal revolution passes through four distinct phases. Although there is no fixed time period for each phase, a fixed order is identifiable. These phases are: (1) Autonomy, (2) Conflict, (3) Determination, and (4) Resolution. The four phases describe the actions of the parties, and provide a coherent structure for analysis of the problem. In the Autonomy phase, the developers of the technology act without any significant constraints imposed by the legal system, which is essentially reactive and often requires a triggering event before it becomes involved. The second phase is the Conflict phase. Conflict may come from any of a number of sources, including a sudden disaster, a scientific study, or a marketing plan or political action. In the Conflict phase, the developers of the technology are challenged by at least one other interest group, such as competitors, consumers, government, or labor. The conflicting groups stake out claims as to which prior legal analogy is most “relevant” i.e. most favorable to their requirements, and the irreconcilability of the conflict under standard legal analysis is the hallmark of the technico-legal revolution. The third phase is Determination. In this phase, the parties muster the factual support for their predetermined positions. Technico-legal revolutions are extraordinarily fact-sensitive. The assignment of the technico-legal revolution to a particular legal regime depends largely on which set of facts is accepted by the legal system. Typically, the parties know in the Conflict phase which type of facts will support their position. AQs a result political pressure is often used to determine which sets of facts will be researched. Studies which might product unfavorable results will not normally be supported by the party opposed to that position. Depending on the positions taken in the Autonomy and Conflict phases, the parties will want either prompt or extended analysis during the Determination phase. In the determination phase parties routinely “appropriate” phraseology in an attempt to alter the debate landscape prior to resolution. Terms such as “dna fingerprinting” “software piracy” ”signal stealing” “Privatsphere” and even ordinary words like “accident” are created or repurposed to push the legal debate in one direction or another. The goal is to move the debate into a more favorable domain. The key argument used by all parties in the Conflict and Determination phases is the false analogy. Since technico-legal revolutions are defined as situations in which no exact analogy to a preexisting legal regime is possible, the false analogy involves comparing some of the attributes of a new technology to those of a preexisting technology with a legal structure favorable to that party, while ignoring those which would lead to a different conclusion. The analogies are false in the sense that they are not exact as well as in the sense that the divergence from the prior situation is often overlooked or minimized. The fourth phase is Resolution. In this phase the legal system assigns the technology to a legal structure. One of the most important effects of the Resolution phase is the assignment of the burden of proof concerning unknown events. The fact that this burden is assigned after the factual material has been developed is one of the most striking characteristics of a technico-legal revolution. Historical examples of technico legal revolutions include the ability of aircraft to fly over private land without paying, the role of Submarines and Radio in maritime Warfare, the interception of telegraphic and telephonic communications and the development of the concept of informational privacy Early USA cases on Geolocation show a disturbing inability to comprehend just how complex the problem really is and indicate that we are heading towards a fragmented world order of expectations related to the law and Geolocation. There are currently statutory and regulatory proposals in both Europe and the USA. Acknowledgments Dr. Bernd Beier (Germany) is my longtime research colleague in this area and his comparative law insights have been critical. References and Notes Us Government Accountability organization Mobile Device Location Data:Additional Federal Actions Could Help Protect Consumer Privacy GAO-12-903: Published: Sep 11, 2012. Publicly Released: Oct 11, 2012. .Brannigan V and Beier B Standards for Privacy in Medical Information Systems: A Technico-Legal Revolution Proc Annu Symp Comput Appl Med Care. 1990 Nov 7 : 266–270. Brannigan, Vincent M. (1988) "Biotechnology: A First Order Technico-Legal Revolution," Hofstra Law Review: Vol. 16: pp. 154-196.
Jan 29, 2015·GRURRR. Gewerblicher Rechtsschutz und Urheberrecht, Rechtsprechungs-Report/GRUR-DVD/GRUR-CD/IIC/Gewerblicher Rechtsschutz und Urheberrecht/Gewerblicher Rechtsschutz und Urheberrecht. Internationaler Teil
This article concerns the ascertainment by judges of normative facts that emanate from within foreign legal orders and must be taken into consideration in the interpretation of domestic rules. The author proposes an analytical approach which is based on three ideas. First, judges must remain in control of the process aimed at ascertaining such facts. Because the interpretation of domestic rules is at stake, they cannot remain passive and rule solely on the basis of the information adduced by the parties, as they normally do while ascertaining the contents of foreign rules under a classic conflict of laws scenario. Second, foreign normative facts are often reasonably disputable, and when that is the case the parties must be afforded the opportunity to comment on whatever information the court intends to rely on while ascertaining the contents of such facts. Finally, the assistance of experts may be necessary in some cases, but full-fledged party-appointed expert testimony will rarely be a cost-effective option. Judges and parties should consider alternative options, such as the testimony of a court-appointed expert or written statements provided by party-appointed experts.
Prescriptive Jurisdiction over Internet Activity:The Need to Define and Establish the Boundaries of Cyberliberty Samuel F. Miller (bio) Introduction Globalization occurs at the nexus of politics, culture, technology, finance, national security, and ecology.1 "Globalization" refers to the increasingly "complex, dynamic legal and social processes" occurring throughout the world.2 It is the development of a global mindset that challenges the traditional political, social, and economic characteristics of nations and has led to the "deterritorialization and reterritorialization of [vast] policy spaces."3 Many of the changes and challenges attributed to globalization rely on the exchange of information throughout the world, making "the flow of ideas across national borders" a key agent of globalization.4 Due to the increasing availability of personal computers and software, the Internet provides the ideal forum for information transfer.5 The Internet engenders "the notion of distributed power: decentralization, openness, possibility of expansion, no hierarchy, no center, no conditions for authoritarian or monopoly control."6 The Internet has become vital to the [End Page 227] broader dynamics of organizing global society, "both economically and politically."7 One of the vital aspects of organizing global society has been individual liberty. With the introduction of the Internet, traditional notions of liberty are challenged. The global reach of information transfer requires examining liberty in its new form—"cyberliberty." Cyberliberty expands across all borders, affects all nations, and as of yet, has not been defined by any nation. This note recommends a definition of cyberliberty in order to provide a legal foundation for regulating conduct on the Internet. The definition is predicated upon freedom from the control and influence of states through their assertion of prescriptive jurisdiction, a liberty that has always been an essential element of sovereignty.8 Part I briefly describes how traditional international law principles of prescriptive jurisdiction have been applied to activities on the Internet. It then identifies some limits to these methods that arise from the unique characteristics of the Internet. Part II surveys philosophic conceptions of liberty, recognizing the implications of liberty on the Internet, and recommends a definition of cyberliberty that favors expansive liberty and clear expectations for Internet actors. I. Prescriptive Jurisdiction over Internet Activity Despite the unique quality of the Internet as a key agent of globalization, and some scholarly arguments that the Internet should not be regulated under traditional standards,9 jurisdiction over Internet-related activity is still generally tested under international jurisdictional law.10 Jurisdiction exists in three forms: [End Page 228] jurisdiction to prescribe, to adjudicate, and to enforce.11 The primary jurisdictional problem that arises in relation to the Internet as a platform of globalization is one of prescriptive jurisdiction. It is the application of a single state's laws to Internet content that gives rise to complication. For example, may State A prohibit citizens of State B, located in State B, from posting advertisements for purple farm tractors on the Internet simply because State A prohibits the sale of purple farm tractors? Questions of this sort have strong implications for the global character of the Internet. A firm basis for jurisdiction to prescribe is required to justify the infringement of sovereignty that would accompany regulation of Internet content. As stated in the Permanent Court of International Justice's opinion in the Lotus case, "a state . . . may not exercise its power in any form in the territory of another state," and jurisdiction "cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention."12 As the Federal District Court for the Southern District of New York has noted, The Internet is a worldwide phenomenon, accessible from every corner of the globe. [A defendant] cannot be prohibited from operating its Internet site merely because the site is accessible from within one country in which its product is banned. To hold otherwise would be tantamount to a declaration that this Court and every other court throughout the world, may assert jurisdiction over all information providers on the global World Wide Web.13 A. Traditional Bases for Prescriptive Jurisdiction International law recognizes five sources of prescriptive jurisdiction: the nationality principle, the subjective territoriality principle, the objective...
Probably not, if the motion is supported by a showing of the categories of witnesses not subject to process and the problems of inconvenience IN CLASSIC forum non conveniens cases, plaintiffs file actions in forums in which they are not residents, where most--if not all--of the events and giving rise to the action did not occur, and (it's not surprising) where the bulk of the evidence relevant to the case is not located. The typical motive is the opportunity to win a damages award that would be unavailable in forums where the action logically should have been brought. Jurisdiction often is based on the defendant's residence in the forum where the case is filed or the fact that at least some of the pertinent events occurred there. While a motion to dismiss under the doctrine of forum non conveniens requires a court to examine and balance a number of different one factor--the availability of compulsory process for the attendance of unwilling witnesses--may require the defendant to do the impossible. That impossibility is obtaining the cooperation of an unwilling witness to prove that the witness is unwilling to participate voluntarily in litigation in a forum where the witness is not subject to compulsory process. WHAT IS IT? The doctrine of forum non conveniens vests a trial court with discretionary power to decline jurisdiction of a matter when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum. When the court is asked to decide whether to dismiss an action for forum non conveniens, it engages in a two-step process. First, it must determine that an alternative forum exists. Second, it must weigh and balance the and interests. A. Adequate Alternative Forum An alternative forum will be held inadequate only in those rare circumstances where it is so clearly ... unsatisfactory that it is no remedy at all, the U.S. Supreme Court declared in Piper Aircraft Co. v. Reyno.(1) The substantive law of the foreign forum is presumed adequate unless the plaintiff makes some showing to the contrary or it is plainly obvious to the court that the plaintiff is highly unlikely to obtain basic justice in the foreign forum.(2) B. Private and Public Interests Once it is established that an alternative forum exists, the next step is to weigh and balance the and interest factors at stake. In Gulf Oil Corp. v. Gilbert,(3) the U.S. Supreme Court enumerated two sets of factors. The first set, called the private interest factors, relates to the convenience of the litigants and includes the following: * The relative ease of access to sources of proof; * The availability of compulsory process for attendance of unwilling witnesses; * The cost of obtaining attendance of willing witnesses; * The possibility of viewing the premises, if such viewing is appropriate to the action; and * All other factors which make trial of a case easy, expeditious and inexpensive. The second set of called the public interest factors, includes the following: * The administrative difficulty encountered when litigation pends for protracted time periods in congested centers rather than being handled at its origin; * The imposition of jury duty on people in a community having no relation to the litigation; * The local interest of having localized controversies decided at the location giving rise to the dispute; and * The bias in favor of having disputes with local interest decided within the jurisdiction having the greater interest in the eventual outcome of the controversy. These factors are not intended to provide bright-line rules. Rather, according to Gulf Oil, they are to serve as aids to the court in making a determination as to whether a discretionary declination of jurisdiction is appropriate. …
Abstract Dissatisfaction with the law of libel has been prevalent for some time. Critics have pointed to three areas in particular as requiring reform. First, they have said that rules of pleading in libel actions are unnecessarily arcane and that the interlocutory process is unduly complex. Secondly, it is said that awards of damages are out of proportion to the loss suffered. One consequence is that defendants have in general thrown more legal resources into litigation, which in turn has increased the costs penalty for the unsuccessful litigant. A third criticism is that the balance between plaintiff and defendant, both procedurally and in relation to the burden of proof, may be tilted too far in the plaintiff’s favour. (The suggestion that, perhaps, the burden of proof ought to be reversed and placed on the plaintiff has gained increased respectability, though it has not convinced everyone.) An important incidental effect of these deficiencies in the law, say critics, is that recourse to law is too complex and expensive. The result is that, at one extreme, the impecunious plaintiff may be deprived of a remedy and, on the other hand, with so much at stake financially for the unsuccessful defendant, the law may fetter freedom of speech.
THE knot connecting the ILWU and PMA is a complicated one. Keeping the living agreement alive involves doing more than following contractual formalities. For the bargain to live and be jointly kept, private agendas are publicly presented as reciprocated efforts. The two sides try to look like they give as well as take, even when they do not. The union and PMA therefore do more than create contractual language to live with. They also cultivate a relationship in which each side can live with the other. When the appearance of reciprocity is not maintained, one side appears disadvantaged. At this point, living agreements die and defensible disobedience is no longer possible. Making the ILWU–PMA relationship work, therefore, means that the agreement must be kept alive in another sense: The impression of cooperation must be maintained even when one side takes advantage of the other. Expressed differently, a fiction must be established for the relationship to live. Constructing this social fiction is a selfconscious process; it is deliberate and two-sided. Each side is involved in making the illusions joint creations. The fiction is produced in a number of observable ways. CREATING THE ILLUSION OF NEGOTIATION One example emerged during contract talks. Coastwide negotiations began in May and concluded in the middle of July. However, because the ILWU is a decentralized organization and locals are relatively autonomous, the contract is not signed until working rules are negotiated for each port.