Cyberspace Jurisdiction-Amit Sachdeva

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INTERNATIONAL JURISDICTION IN CYBERSPACE: A COMPARATIVE PERSPECTIVE

AMIT M. SACHDEVA
Allocation of jurisdiction; Comparative law; EC law; India; International law; Internet; United States Cyberspace is a borderless worlda world of its own. It refuses to accord to the geopolitical boundaries the respect that private international law has always accorded to them and on which it is based. Therefore there is a need to have a different solution to this different problem. The solution lies neither in adopting a hands-off approach nor in simply extending mutatis mutandis the existing conicts rules. Looking at the dismal history of private international law, the present author proposes a treaty based international harmonisation model as the most ideal one where rules are certain and predictable and at the same time exible in order to ensure that the potential benets of this technology are meaningfully consumed by the human civilisation. foremost. The issue gains special signicance in matters concerning cyberspace in that cyberspace is merely a medium of effecting or facilitating certain acts, which have real world implications. Thus acts committed in the borderless cyber world eventually have to be enforced in the bordered real world. Simply put, the invention-extension dichotomy comes to this: the claim of invention of new rules based on the a-national nature of cyberspace is often countered in that behind the cyber-veil1 are human beings, connected to states by nationality and/or residence, calling for extension of the existing conicts norms. The problem of jurisdiction arises because it is only in the real world that there exist mechanisms to confer rights, immunities, privileges, etc. with no corresponding equivalent in the cyber world. In other words, rights are rights only ` vis-a-vis the real world. On account of the differences in the normative standards of conduct among the different political units in the real world, the question of jurisdiction becomes particularly important, for what may be legal in one legal system may be prohibited by another, and the same may be circumstantially justiable in yet another.2 Fortunately, on account of the absence of a pluralist regime (or indeed any regime), there exists no such difference in the cyber world. In other words, the differentiation between legality and illegality is not maintained in the cyber
1 The author seeks motivation from the principle of piercing of the corporate veil which is a well-recognised principle of company law at least in the common law countries. See generally, for an excellent treatment of the concept, Paul Davies, Gower and Davies Principles of Modern Company Law, 7th edn (London: Sweet and Maxwell, London, 2003), pp.181190. See further, Marc T. Moore, A Temple built on Faulty Foundations: Piercing the Corporate Veil and the Legacy of Salomon v Salomon (March 2006) Journal of Business Law 180; Katherine Lyons, Piercing the Corporate Veil in the International Arena (2006) 33(2) Syracuse Journal of International Law and Commerce 523; Lucas Bergkamp and Wan-Q Pak, Piercing the Corporate Veil: Shareholder Liability for Corporate Torts (2001) 8(2) Maastricht Journal of European and Comparative Law 167; Robert B. Thompson, Piercing the Veil within Corporate Groups: Corporate Shareholders as mere Investors (1999) 13(2) Connecticut Journal of International Law 379; Carsten Alting, Piercing the Corporate Veil in American and German Law: Liability of Individuals and Entities: a Comparative View [1995] Tulsa Journal of Comparative and International Law 187. See also, for English cases, Trebanog Working Club and Institute Ltd v McDonald [1940] K.B. 516; Holdsworth v Caddies [1955] 1 W.L.R. 352; Lee v Lees Air Farming Ltd [1961] A.C. 12, P.C.; DHN Food Distributors Ltd v Tower Hamlets [1976] 1 W.L.R. 852; Adams v Cape Industries [1990] 2 W.L.R. 786; In re H [1996] 2 All E.R. 291. 2 The degree to which the exercise of the freedom of speech and expression is permitted in different legal systems is a glaring example of the aforementioned difference. For example, much of the freedom guaranteed to individuals in the United States through the Constitutions First Amendment is not available in many other states, particularly the Islamic and the Communist world. The recent controversy over the publication of a caricature of the Prophet in a leading newspaper well illustrates the difference in the extent of freedom enjoyed.
Introduction
When the traditional conict of laws rules relating to jurisdiction of courts were being evolved, it was perhaps too nascent a stage in the development of science to contemplate a technological advancement which would deny and defy all notions of political and geographical boundaries. What science could not contemplate, law (perhaps rightly) did not provide for. This is the most discernible argument against the adequacy and appropriateness of extending mutatis mutandis the existing conicts rules to govern cyberspace. The claim for its appropriateness, as advanced by some, is contradicted by the very nature and concept of the conict of laws. The claims of adequacy and appropriateness are also opposed to the genesis and the process of evolution of the conicts rules. The (traditional) conict rules were evolved to address a category of disputes which involved legally relevant foreign elements. Here, foreign refers to territorially foreign, determined by and according to the geopolitical boundaries. The internet, on the other hand, is truly a borderless world. It refuses to accord to the (traditional) geopolitical boundaries the respect and sanctity which has been historically accorded to them. The disregard of these boundaries by the internet gives rise to a multitude of problems, of which the problem of jurisdiction is but the
* LLM Student, London School of Economics and Political Science (LSE), London; Advocate, High Court of Delhi; Diploma, The Hague Academy of International Law (2007); LL.B. (Hons.), Guru Gobind Singh Indraprastha University, Delhi (Gold Medallist); PGDSBL, Indian Law Institute (Gold Medallist). The author may be reached at mask.sachdeva@gmail.com. The author wishes to extend his heartfelt thanks to Dr Andrew Murray, Dr Ravindra Pratap and Mr S. C. Misra for their guidance and comments. The author also wishes to thank Alejandra Torres, Avinash Sharma, Dianna Correa, Sachin Sachdeva and Yamini Mahajan for their fruitful discussions, support, assistance in research and thoughtful remarks. Usual disclaimer applies.
[2007] C.T.L.R. ISSUE 8 SWEET & MAXWELL LIMITED [AND CONTRIBUTORS]
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world, independent of the real world. In such a situation, when the real world actors become cyberactors and perform acts disregarding all legal regimes (or perhaps even where complying with their own legal order), the following question frequently arises: whether each cyberactor is justied in acting pursuant to the notions of legality as prevalent in his own legal system alone, whether based on nationality or domicile or mere territorial presence, and thereby imposing them on the whole world? A related and more difcult question is one of choosing a judicial forum and seeking remedies particularly where an act committed in cyberspace by a person, subject to the sovereignty of one state, amounts to the violation of a right guaranteed by another. Both these questions pose immense difculty for they require a compromise between competing claims of the two worlds and their underlying concepts of liberty. In this special brieng, the author seeks to address the latter of the questions. The issue of jurisdiction is of interest for two reasons: rst, it takes a lot of litigation to know where to litigate; and, secondly, the issue of jurisdiction is the rst one that the court must face and answer in afrmative before it may proceed to adjudicate upon any other. Besides doing a general survey of the doctrine of international jurisdiction and making a comparative study of how the question of curial jurisdiction has been answered in different legal systems, particularly the American, the English, the Continental and the Indian, this brieng seeks to critically assess the feasibility of the different proposed solutions. It highlights the merits of treatybased international harmonisation as a solution to the issue of cyberspace jurisdiction, which the author prefers over others. Finally, the brieng concludes by proposing some connections which may form reasonable and acceptable bases of jurisdiction for drawing up an international convention in order to make the Internet a more rule based regime ensuring clarity, predictability and certainty.
Doctrine of international jurisdiction

Based whether on any rule of international law or any notion of international comity,3 each state must accord respect to the sovereignty of every other and must not interfere with aspects
3 Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But, it is the recognition which one state allows within its territory to the legislative, executive or judicial acts of another nation, having regard to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws: Hilton v Guyot 159 U.S. 113 (1895), also cited by the American Law Institute, Restatement of the Law: Third, Foreign Relation Law of the United States (1987) Ch.1, s.101(e); see also Lawrence Collins, The United States Supreme Court and the Principles of Comity: Evidence in Transnational Litigation (2006) 8 Yearbook of Private International Law 53; Lawrence Collins, Comity in Modern Private International Law in James Fawcett (ed.), Reform and Development of Private International Law: Essays in Honour of Sir Peter North (Oxford: OUP, 2002), pp.89110; Brian Pearce, The Comity Doctrine as a barrier to Judicial Jurisdiction: A US-EU Comparison (1994) 30(2) Stanford Journal of International Law 525; Michael G. McKinnon, Federal Judicial and Legislative Jurisdiction over entities abroad: the Long-Arm of U.S. Antitrust Law and viable solutions beyond the Timberline/Restatement Comity approach (1994) 21(4) Pepperdine Law Review 1219; Joel R. Paqul, Comity in International Law (1991) 32(1) Harvard International Law Journal 1; Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction (1985) 98 Harvard Law Review 1310 (Notes).
by which sovereignty is manifested by other states. Territoriality to that extent is an inevitable consequence of sovereign equality of states and peaceful coexistence. Jurisdiction principles, both personal and prescriptive, were originally derived from an assumption about the absoluteness of boundaries and sovereign power within them4 and were grounded in political practicality. Considering the territorial nature of sovereignty today, as a universal rule, jurisdiction extends (and is limited) to everybody and everything within the sovereigns territory and to his nationals wherever they may be. In other words, [l]aws extend so far as, but no further than the sovereignty of the State which puts them into force.5 By jurisdiction is meant the right of a state to prescribe, give effect to, and adjudicate upon violations of, normative standards for regulation of human conduct. It denes the legitimate scope of governmental powers.6 The term jurisdiction covers within its ambit the authority of a sovereign to act in legislative, executive and judicial character. In the legislative character, a state has the power, exercisable as a constitutional discretion, to prescribe rules for regulating the conduct of persons. By enforcement jurisdiction is meant the power of a sovereign to effect implementation of its laws. Lastly, the power of the courts of a sovereign to hear and adjudicate upon certain matters in dispute is referred to as curial jurisdiction. The extent and limit of each of the three types of jurisdiction may ultimately be traced to the ability of a state, whether by use of coercive force or through bilateral or multilateral negotiations and treaties, to give effect to the same. Unlike its early understandings, modern sovereignty is neither absolute nor unfettered. It is strongly conned to the territorial limits of its political borders, owing from a realistic attribution of rights, power and reason.7 The presumption regarding the absoluteness of control of the sovereign over all persons and things present within its territorial dominion was very strong particularly at a time when the concept of nation state was evolving. However, later developments in science and technology, growth of international trade and a resultant increase in cross-border movement of persons and commission of acts made inevitable the relaxation, to some extent, of this presumption. Accordingly, the sovereigns accorded mutual recognition, under certain circumstances, to multiple sovereign authority8 over persons and conduct, otherwise located within the territory of one state. In this regard, the need for the exercise of multiple sovereign authority, based on principles of reasonableness and fairness, has been aptly summarised by Professor von Mehren9 in the following words:
4 Rodney D. Ryder, Guide to Cyber Laws (Informational Technology Act, 2000, E-Commerce, Data Protection and the Internet), 1st edn (Nagpur: Wadhwa & Co Law Publishing Co, 2001), p.207. 5 F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years (1984) 169 Recueil des Cours de lAcad emie de Droit International 9; See further Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction over Nonresident Alien Defendants (2006) 41(1) Wake Forest Law Review 1; Satvinder S. Juss, Nationality law, sovereignty, and the Doctrine of Exclusive Domestic Jurisdiction (1994) 9(2) Florida Journal of International Law 219; H.S. Lewis, The three deaths of States Sovereignty and the curse of abstraction in the jurisprudence of personal jurisdiction (1983) 58 Notre Dame Law Review 699. 6 Henry H. Perritt Jr, Jurisdiction and the Internet: Basic Anglo/American Perspectives Projects in the Coming 2000s, available at www.kentlaw.edu. 7 Mann, above fn.5, 25. 8 Ryder, fn.4 above, 209. 9 Arthur T. von Mehren, Recognition and Enforcement of Foreign Judgments: General Theory and the Role of Jurisdictional
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as economies and societies become more complex and interrelated, institutions, principles, procedures and rules are needed to facilitate co-ordination and co-operation for common purposes. The legal order today seeks not only to prevent one person from interfering with anothers private sphere, but also assists and regulates private ordering of the individuals. Identifying the adjudicators from whom relief may be soughtas well as establishing the premises for their workcan be relatively complex when one society is in picture; complexities and difculties multiply as controversies implicate more than one group or society, especially where the groups or societies differ in their values and institutions.
Legislative jurisdiction
The argument that the legislative jurisdiction of a state is, in principle, unlimited is not wholly correct, for no legislature may be deemed to have intended to prescribe a conduct for the enforcement of which it has no means or basis and whose recognition beyond its own political frontiers is itself doubtful. Any such legislation, laying down standards of conduct, would interfere, to a great extent, with the corresponding power of the other sovereign(s). Thus the prescriptive jurisdiction of a state is generally conned to persons and/or acts within its territorial dominion.10 The jurisdiction is limited to acts and persons properly subject to its sovereignty, notwithstanding that the mandate may be contained in more comprehensive phraseology.11 No state may be permitted to assert an unrestricted liberty to act in the eld of private international law.
Enforcement jurisdiction
Enforcement jurisdiction concerns not the law prescribed by a state to regulate acts outside its own territory, but the lawfulness of the states own act to give effect to such regulation.12 It is concerned with a states power to act in the sense of exercising sovereign authority, i.e. ascertaining the extent to which a state can act in another to give effect to its own laws. Undoubtedly, the enforcement jurisdiction is not unlimited since a state is in principle under no duty . . . to tolerate the performance or execution of acts of sovereignty of another state.13 By its very nature, it is exercisable only upon the existence of, though not necessarily coextensive with, the legislative jurisdiction. However, the mere existence of the former does not give, in all cases, sufcient basis to conclude also the existence of the latter.
and to render judgments binding upon the parties thereto. It is the power of a court to determine the rights and obligations of the parties to a dispute and to exercise any judicial power in relation to it. Adjudicative jurisdiction denes the extent of the authority of a court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits,15 i.e. to take cognisance of the matters presented in a formal way for its decision.16 Thus a court must satisfy itself of the simultaneous existence of the pecuniary, subject matter as well as territorial bases for it to lawfully exercise its jurisdiction. A court will proceed to assume jurisdiction if only it reasonably expects the terms of the decision to be carried into effect. Beyond its political borders, where a state is usually possessed of no coercive force and where the likelihood of enforcement is contingent on the will of another state, there is little reason for the court to assume curial jurisdiction. Therefore, like enforcement jurisdiction, adjudicative jurisdiction is also essentially territorial.17 However, factors like the growing complexities of the modern society, freer movement of men and goods and the advent of the virtual world have forced courts to assume jurisdiction even in cases where all the elements are not domestic. In such a case, i.e. where the lis involves a foreign element, curial jurisdiction refers to the ability of a judicial tribunal to compel appearance of the defendant and adjudicate upon the rights litigated with the object to enforce compliance with the terms of the decision. Even though curial jurisdiction is merely an emanation of the international jurisdiction to legislate,18 unlike the latter, the former has remained largely immune from the doctrine of closeness of contact, and has continued with a near strict adherence to the maxim actor sequitur forum rei,19 based on the rationale of ease, and in some cases the only possibility, of enforcement. Thus, in the international context, jurisdiction primarily depends upon the territorial nexus of the defendant or the cause of action. In other words, a court must, before it can legitimately exercise curial jurisdiction, nd at least one domestic element in the dispute, which it has been called to adjudicate upon.20
International jurisdiction and cyberspace21

Cyberspace, which constitutes a technology-driven imaginary space, dees control by mechanisms evolved in the real world essentially based on geopolitical boundaries. It is a new social order, which cuts across cultures, civilisations,
15 Raja Soap Factory v S. P. Shantharaj AIR 1965 SC 1449. 16 Ofcial Trustee v Sachindra AIR 1969 SC 823, 827, citing Halsburys Laws of England, 4th edn, Vol.10, para.17. 17 The Siskina [1979] A.C. 210 at 254, per Lord Diplock. 18 That is, legislative jurisdiction includes personal jurisdiction. 19 The plaintiff must submit to the defendants court. 20 See also von Mehren, above fn.9: The importance of the theory ultimately rests on a trait of human nature, one especially strong in contemporary Western societies namely, an extraordinary, seemingly innate preference for action that is consistent and at a more sophisticated state, can be seen and expressed with what has gone before. Apart from theories, may other considerations, including administrability, regulatory concerns and economic and social circumstances are factored with varying weights, into a legal orders law of jurisdiction (emphasis in original). 21 For an excellent general treatment of this complex subject, see Dan Burk, Federalism in Cyberspace (1996) 28 University of Connecticut Law Review 1095 and Henry H. Perritt Jr, Jurisdiction in Cyberspace (1996) 41 Villanova Law Review 1.
Adjudicative jurisdiction
Adjudicative jurisdiction14 concerns the power of a sovereign, acting through its judicial organ, to hear disputes
Requirements (1980-II) 167 Recueil des Cours 9 (emphasis added). 10 Queen v Jameson [1896] 2 Q.B. 425. 11 See for example, the expression [n]o person under Art.21 or [e]very person under Art.22(2) of the Constitution of India; cf. [a]ll citizens under Art.19(1). See also the use of the words all agreements under s.10 of [Indian] Contract Act 1872, and s.1(2) of [Indian] Information Technology Act 2000. 12 Mann, above fn.5, 42. 13 Decision of the Federal Constitutional Court of Germany, March 22, 1983. 14 This type of jurisdiction is also referred to as Personal Jurisdiction, Curial Jurisdiction and Jurisdiction in personam.
religions, etc. and creates a new realm of human activity22 forcing mankind to rethink the appropriateness of extending the existing rules to it. Cyberspace clearly disregards the general correspondence, existing in the real world, between physical borders and lawspacebased on considerations of power, effects, legitimacy and notice.23 The law, in the non-virtual world, works essentially on a two-way premise that a certain set of legal rules is applicable to only one set of persons, who are present within the limits of the sovereign prescribing such rules, and to none other24 ; and that a certain set of persons are required to comply with only one set of standards, and with none other. It is this perception, which having been mutually recognised and accepted by most sovereigns gives the requisite strength and legitimacy to each sovereign to enforce its legal rules within its territory. However, the case with the cyber world is different as it admits of no territory or polity based borders sufcient to impose a certain set of rules to a certain territorially dened set of persons. This leads each cyberactor to act according to his own legal order (or perhaps no legal order at all), leading to blatant violations of what may be guaranteed rights under other legal regimes. Litigation involving the internet has thus increased as the internet has developed and expanded. The border-breaching nature of cyberspace, the substantial difference in the substantive laws of different states and the absence of any enforcement mechanism in the virtual world give rise to a multiplicity of judicial forums, since the cause of action and the parties are spread across physical borders. This enables a plaintiff to choose his forum, and the defendant, in his turn, to question the jurisdiction of the chosen court. Any ruling on the question requires a balancing of the interests of the plaintiff, who has a right to choose his forum and the defendant, who cannot be exposed to the contingency of facing litigation in any and every court. The courts are accordingly struggling to come up with a coherent doctrine of personal jurisdiction for internet transactions. Far from there being unanimously agreed concrete rules, there are at least two broad and diametrically opposite ways in which different legal systems and scholars are responding to the problem. Some scholars and systems nd appropriate to borrow . . . the principles of [conict of laws relating to] personal jurisdiction and extending them to cyberspace setting.25 Others, realising that the addresses of the computers on the internet are digital rarely containing geographic indications, nd traditional rules of private international law grossly inadequate and often suggest exposition of new rules to address this new situation. A comparative study shows that each legal system has responded to this question differently, based upon its own ideas of justice, expediency, convenience and experience, and guided by the prevalent constitutional and political order. While some states have adhered to the requirement of territorial nexus as the basis of jurisdiction, others claim to have adapted and relaxed the jurisdictional basis to better counter the challenges posed by, and keep pace with, developments in science and technology.
The position in the United States Personal jurisdiction

To properly exercise jurisdiction, a court must nd sufcient nexus between the defendant or the res, on the one hand and the forum on the other. The law of personal jurisdiction has changed over time reecting changes of a more mobile society. The approach to which the US courts adhered for a long time was reformulated to allow jurisdiction over nonresident individuals and entities based on the minimum contacts of the out-of-state party.26 The two bases for a US court to exercise jurisdiction are discussed below:
Territoriality
Physical presence in a state is always a basis for personal jurisdiction. The exercise of jurisdiction is permitted over people and property within the territorial borders.27 In such a case, physical presence in a forum state is a basis for personal jurisdiction, even when an out-of-state individual enters the forum state for a brief time.28 Physical presence in the forum state satises the requirement of constitutional due process.
Jurisdiction over out-of-state defendants

Where the defendant is not physically present, a US court exercises jurisdiction through the out-of-state statute route. There are two requirements subject to which a court can exercise personal jurisdiction over an out-of-state defendant.29 First, there must be statutory authority granting the court jurisdiction over the defendant. And, secondly, the due process clause of the Constitution must be satised. In a number of cases, the reach of state statutory authority has been limited because of violations of the constitutional due process. Thus, determining whether a court may exercise personal jurisdiction30 over a defendant requires a two-step inquiry.
26 Kevin M. Clermont, The Role of Private International Law in the United States: Beating the Not-quite-dead Horse of Jurisdiction in Ronald A. Brand and Mark Walter (eds) Private Law, Private International Law and Judicial Cooperation in the EUUS Relationship (Thompson/West, 2005); Ugo Mattei and Jeffrey Lena, US Jurisdiction over Conicts arising outside the United States: Some hegemonic implications (2001) 24(3) Hastings International and Comparative Law Review 381; Brian Pearce, The Comity Doctrine as a barrier to Judicial Jurisdiction: A USEU Comparison (1994) 30(2) Stanford Journal of International Law 525; Andrew L. Strauss, Where America ends and the international order begins: interpreting the jurisdictional reach of the U.S. constitution in light of a proposed Hague Convention on Jurisdiction and Satisfaction of Judgments (1998) 61(4) Albany Law Review 1237. 27 Pennoyer v Neff 95 U.S. 714 (1877); see also Philip Kurland, The Supreme Court, the Due Process and the In Personam Jurisdiction of State Courts: From Pennoyer to Denckla (1958) 25 University of Chicago Law Review 569. 28 Burnham v Superior Court 495 U.S. 604 (1990). 29 In Hess v Pawloski 274 U.S. 352 (1927), it was held by the US Supreme Court that jurisdiction may be exercised over any nonresident who was operating a motor vehicle within the state and was involved in an accident. 30 Some scholars believe that as disputes over conduct taking place on the internet increase in frequency, as they surely will, we may be returning to that relatively primitive condition; that is, precisely because of the overwhelming complexity of applying these diverse rules to internet conduct, the inquiry may return to a relatively simple set of questions: does the defendant have assets within the jurisdiction of the court or not?
22 David R. Johnson and David G. Post, Law & BordersThe Rise of Law in Cyberspace (1996) 48 Stanford Law Review 1367. 23 Above fn.22, 1368. 24 Except in a case where another sovereign also prescribes the same set of rules, in which case also there is only one set of persons ` vis-a-vis the set of rules in question. 25 Vakul Sharma, Information Technology Law and Practice (Delhi: Universal, 2004), p.262 (emphasis added).
The rst test, the legislative sanction, relates to the inquiry whether there is a legislative grant of authority authorising the court to exercise jurisdiction over the defendant? It may be founded either in the federal or state statutes. Some federal statutes thus authorise the court to exercise personal jurisdiction over any defendant located within the United States. If no specialised federal law provision exists, the Federal Rules of Civil Procedure direct the federal court to look to the long-arm statute of the state in which the court is located to determine whether or not it has personal jurisdiction over the defendant. All states have additional provisions, long-arm statutes,31 providing that their courts may, in certain circumstances, assert personal jurisdiction over non-residents also.32 The second test concerns the constitutional limitations. A statutory basis is not per se sufcient to lawfully exercise jurisdiction. It must further pass the test of constitutional limitations. In 1877, in the landmark Pennoyer v Neff 33 decision, the US Supreme Court, holding that the due process clause of the Constitution constrains the states in the exercise of personal jurisdiction over non-residents, observed that (1) every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory; and, (2) no State can exercise direct jurisdiction and authority over persons or property without its territory. These principles may have been adequate in the 19th century, when occasions for exercising personal jurisdiction across state lines were relatively infrequent. But, by the middle of the 20th century, the court relaxed the rule to include cases of virtual presence34 also.
However, the minimum contacts test, which formed the basis of jurisdiction in the International Shoe case,37 was not a mere mechanical test, but one that depended on the quality and nature of the activity in relation to the fair and orderly administration of laws.38 Thus courts must consider both the amount and nature of the partys contacts with the state and the relationship between the contacts and the claims when determining whether the court can exercise personal jurisdiction over that party.
Reasonable anticipation
In order to further safeguard the rights of out of state defendants, a further caveat was added to the quality and nature of minimum contacts test. This was that the defendants contact with the forum state should be foreseeable,39 i.e. a court would not have jurisdiction unless it could be shown that the defendant had purposefully availed himself of the privilege of conducting business in the forum.40 This critical test of foreseeability is not the mere likelihood that a product will nd its way into the forum state, but required a reasonable anticipation of being haled into court there.41
Effects cases
In the effects cases,42 the Supreme Court based jurisdiction on the principle that the defendant knew that his action would be injurious to the plaintiff therefore he must be reasonably presumed to have anticipated being haled into court where the injury occurred. The effects cases are of particular importance in cyberspace because any conduct in cyberspace often has effects in various jurisdictions. To summarise, the treatment of the issue of jurisdiction in the United Statesbased on the minimum contacts standardis as follows: there must be some act by which the defendant purposefully avails [itself] of the privilege of conducting activities with the forum state43 ; the plaintiff must show either that the defendants contacts with the forum are continuous and systematic, or that the suit arises out of or is related to those contacts44 ; the defendants conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court there45 ; and the exercise of personal jurisdiction must be reasonable.46
37 Above fn.36. 38 Above fn.35, 319. 39 World-Wide Volkswagen Corp v Woodson 444 U.S. 286 (1980). The case concerned a car accident that occurred in Oklahoma and for which the Oklahoma state court was held not to have jurisdiction over out-of-state defendants. The defendants, a New York car dealer and a New England regional distributor, sold the plaintiffs, then residents of New York, a car in New York. The plaintiffs subsequently moved to Arizona, and while travelling through Oklahoma got into an accident caused by the allegedly defective car. 40 Cybersell, Inc v Cybersell, Inc 130 F. 3d 414; Hanson v Denckla 357 U.S. 235, 253 (1958). 41 Cybersell, above fn.40. 42 See generally Calder v Jones 465 U.S. 783 (1984); Keeton v Hustler Magazine, Inc. 465 U.S. 770 (1984). 43 Hanson, above fn.40. 44 Helicopteros Nacionales de Colombia v Hall 466 U.S. 408, 415416 (1984). 45 WorldWide Volkswagen Corp v Woodson, above fn.39, 297. 46 Burger King Corp v Rudzewicz 471 U.S. 462, 476477 (1985). The Supreme Court has also offered a list of ve jurisdictional
Minimum contacts
The Supreme Court in International Shoe v Washington35 rst made lenient the rule to include the criterion of minimum contact on the reasoning that the due process requires only that in order to subject a defendant to a judgement in personam [personal jurisdiction], if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice .36
31 The Uniform Interstate and International Procedure Act (UIIPA), which is a model long arm statute that several states have enacted. For a typical example, see s.302 of the New York States long-arm statute (NY C.P.L.R 302). 32 The name long-arm comes from the purpose of these statutes, which is to reach into another state and exercise jurisdiction over a nonresident defendant. See generally C.M. Cerna, Hugo Princz v. Federal Republic of Germany: How far does the LongArm Jurisdiction of US Law reach (1995) 8(2) Leiden Journal of International Law 377. 33 95 U.S. 714 (1877). 34 As Prof. Burk has noted, the personal jurisdiction problems posed by virtual commerce and internet telepresence are in many ways the culmination of a long evolution of legal doctrine occasioned by changing technology. Traditionally, jurisdiction over the person was premised on the physical presence of the individual in the forum; this continues to be a viable jurisdictional basis. However, increased physical mobility due to automobiles and other modern transportation placed this jurisdictional basis under severe strain, as did disputes over virtual entities such as corporations that have no physical situs, and over virtual properties such as stocks and debts that similarly lack physical form. Burk, above fn.22, 1107 (emphasis added). 35 326 U.S. 310 (1945). The case involved a Washington court attempting to assert jurisdiction over a corporation that was incorporated in Delaware and had a principal place of business in Missouri. 36 International Shoe v Washington, above fn.35, 316.
Personal jurisdiction in cyberspace

A state governed by the rule of law and guided by ubi jus ibi remedium would always permit some legislative powers in its judges. Faced with new situations, the judges either create new rules or suitably modify the existing ones. In the eld of international jurisdiction in cyberspace, the US courts seem to have taken principally the latter recourse. Having for long recognised that personal jurisdiction must adapt to progress in technology,47 the US courts have successfully applied the principles established in the International Shoe case48 to cases involving the internet.49 A rather simple test of proportionality has been employed for the purpose. Simply put, it comes to this:
the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.50
on the other hand often creates a high degree of confusion and complications. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.55 In this regard, a sliding scale test , measuring the degree of interactivity of the website is found to be usually decisive.56 The facts must satisfy the power prong of International Shoes minimum contacts as well as the reasonableness prong in order for the court to properly exercise jurisdiction. The court must be inclined to nd the totality of contacts57 in a totality of circumstances58 as a test of jurisdiction, particularly where online activities are tied with ofine acts. With respect to the middle interactive category, a court
nds that [this] category of Internet contacts as described in Zippo needs further renement to include the fundamental requirement of personal jurisdiction: deliberate action within the forum state in the form of transactions between the defendant and the residents of the forum or conduct of the defendant purposefully directed at the residents of the forum state. It requires something more than mere advertising on the Internet.59
The nature and quality of commercial activity is determined on the basis of the test of minimum contacts. Once the threshold of minimum contacts is crossed, the courts in the United States assume jurisdiction. However, the twin requirement that the defendant must purposefully avail himself of the privilege of conducting activities with the forum state at times gives rise to serious problems. The claim of reasonableness of exercise of personal jurisdiction is pitted against the rule of assumption of jurisdiction based on the universality of access of web pages. The US courts balance these claims by a three-prong categorisation of all internet activities into (1) active websites51 ; (2) websites permitting exchange of information with the host computer; and (3) passive websites.52 The response with respect to the rst and the last categories is without much difculty. The US courts exercise jurisdiction over defendants acting through active websites since this involve[s] the knowing and repeated transmission of computer les over the internet.53 Ordinarily, jurisdiction is not exercised over those who merely supply information through passive websites, without anything more since doing otherwise would be [in]consistent with traditional personal jurisdiction case law . . ..54 The second set of categories
fairness factors, which include the inconvenience to the defendant of defending in that forum, the forum states interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial systems interest in efcient resolution of interstate conicts, and the shared interest of the states in furthering substantive social policies. Burger King at 477. 47 Hanson, above fn.40, 250251. 48 International Shoe Co v Washington, above fn.35. 49 See, e.g. CompuServe, Inc v Patterson 89 F. 3d 1257 (6th Cir. 1996); See generally Oscar Franklin B. Tan, The International Shoe still ts the Virtual Foot: a Due Process Framework for Philippine Internet Personal Jurisdiction Problems (2004) 79(4) Philippine Law Journal 1029; Richard A. Rochlin, Cyberspace, International Shoe, and the changing context for personal jurisdiction (2000) 32(2) Connecticut Law Review 653; Katherine Neikirk, Squeezing Cyberspace into International Shoe: when should courts exercise personal jurisdiction over non-commercial online speech? (2000) 45(2) Villanova Law Review 353; Michelle R. Jackson-Carter, International Shoe and Cyberspace: the Shoe doesnt t when it comes to the intricacies and nuances of Cyberworld (1998) 20(1) Whittier Law Review 217. 50 Zippo Manufacturing Co v Zippo Dot Com, Inc 952 F. Supp. 1119, 1124 (1996). 51 See generally CompuServe, above fn.49. 52 See Bensusan Restaurant Corp v King 937 F. Supp. 295 (S.D.N.Y. 1996). 53 See Zippo, above fn.50, 1124 (citing CompuServe, above fn.49). 54 Hearst Corp v Goldberger 1997 WL 97097, 1 (1997).
Thus a mere possibility of doing business within the forum residents is not a constitutional ground for the exercise of personal jurisdiction.60 Therefore, where advertising intends to draw residents of the forum or targets the forum then the exercise of jurisdiction is proper,61 as this it is based on the premise that the defendant has some minimum assurance as to where the conduct will and will not render him liable to suit.62 To summarise the position, the law in the United States does not apply any single jurisdiction theory63 which would be appropriate for all cases. Mere website advertisement does not, per se, confer upon a court specic jurisdiction64 since the defendant did not contract to sell any goods or services to any citizens of [the forum state] over the Internet site.65 The case of advertisement over the internet is no different from advertising in a national magazine66 and therefore does not constitute continuous and substantial contacts with the forum state67 to provide personal jurisdiction.68 Even where advertisement on the websites is accompanied
55 Zippo, above fn.50, 1124 (citing Maritz, Inc v Cybergold, Inc 947 F.Supp. 1328 (E.D.Mo.1996)). 56 Zippo, above fn.50, 1119 (emphasis added). 57 Millennium Enterprises, Inc v Millennium Music, LP 1999 WL 27060 (1999). 58 Zippo Manufacturing Co v Zippo Dot Com, above fn.50. 59 Millennium Enterprises, Inc v Millennium Music, LP, above fn.57 (emphasis added). 60 Origin Instruments v Adaptive Computer Systems 1999 WL 76794. 61 Transcraft v Doonan Trailer 1997 WL 733905. 62 Smith v Hobby Lobby Stores 968 F.Supp. 1356 (1997). 63 See Weber v Jolly Hotels 977 F.Supp. 327 (1997). 64 Bensusan v King, above fn.52. 65 Smith v Hobby Lobby Stores, above fn.62. 66 Hearst Corp v Goldberger, above fn.54, 1. 67 See, e.g. Gehling v St Georges School of Medicine 773 F.2d 539, 542 (3d Cir. 1985); see also Gianolo v Walt Disney World Co 753 F. Supp. 148, 156 (D.N.J. 1990): In an age of modern advertising and national media publications and markets, plaintiffs argument that such conduct would make a defendant amenable to suit wherever the advertisements were aired would substantially undermine the law of personal jurisdiction (emphasis added). 68 Hearst Corp v Goldberger, above fn.54, 10; See also, Bensusan, above fn.57, 301 (the creation of website is not sufcient to nd that defendant purposefully availed himself of forum).
by certain other traditional or ofine acts, for example, advertising with the phone number, the same may not also give a court the jurisdiction in the cause,69 unless the ofine activity is sufcient to produce the constitutionally imperative reasonable minimum contact with the forum state.70 In this category are the activities of a bilateral nature and if such a case is made out, the courts in the United States have been quick to assume jurisdiction. Another example of nonadherence by the United States to any singular criterion of cyber-jurisdiction is the Insect Systems case,71 where specic jurisdiction was assumed by the court,72 contrary to the generally accepted position in the United States in the case of passive websites. While there are requirements of minimum contacts and reasonableness and the broad categorisation of all websites in three different sets based on the degree of activity, there is enough case law to show that these two criteria have not always been adhered to. The US law, in this area, manifests, at its best, its common law fabric and design: there are legal rules for basing jurisdiction, but the number of rules and their eld of operation is so limited and unpredictable that it leaves much (or rather everything) at the judges discretion. It sometimes leads to, as is the case in all common law countries, unpredictable and unexpected solutions. But, the common law has always preferred justice in each case over any claim of predictability. All this, of course, is subject to the prevailing constitutional order. The United States just seems to follow this common law thinking.
exercise by the United Kingdom of the opt-in option. Since there remains no difference between the UK law and that of the other Member States, in the second half of this section, a survey of the jurisdiction rules in the European Union States will be done after a survey of the traditional jurisdiction rules in the United Kingdom.
The traditional rules

The traditional rules permit an English court to exercise jurisdiction when (1) the defendant is present within England and the writ is served upon him; (2) he submits to the jurisdiction of the court77 ; or (3) he is served, at the discretion of the court,78 with the writ, in accordance with the Rules of the Supreme Court79 outside England. This was a shift from the earlier position where English courts founded jurisdiction based on the location of the assets or nationality or presence of the defendant.80 In other words, if the defendant is informed or is put on notice of an action, an English court would exercise jurisdiction over him. Mere physical presence of a person, for howsoever short a period,81 within the territorial limits of England makes him liable to the service of the writ, and consequently, makes him amendable to jurisdiction. In certain cases, the court may also permit substituted service.82
The Brussels (I) Regulation

The traditional rules on jurisdiction in the United Kingdom (and elsewhere in Europe) underwent a substantial modication with the coming into force of the EC Treaty and the respective accession by the states thereto. This happened on account of two specic treaty provisions contained in the EC Treaty: rst, Art.249 of the EC Treaty which provides for taking of measures including adoption of directives and regulations in matters over which the Community has competence; and secondly, amendment of the EC Treaty by the Amsterdam Treaty, as a result of which matters concerning cooperation in civil jurisdiction stood transferred from the third to the rst pillar.83 Articles 65 and 293 of the EC Treaty
77 Deverall v Grant Advertising, Inc [1955] Ch. 111. 78 See generally Johnson v Taylor Bros [1920] A.C. 144; the court, before exercising discretion, also generally considers the defence of forum non conveniens. See further South African Republic v Compagnie Franco-Belge du Chemin de Fer du Nord [1897] 2 Ch. 487 (CA); High Commissioner for India v Ghosh [1960] 1 Q.B. 134; Re Dulles Settlement [1951] Ch. 842. 79 Rules of the Supreme Court, Ord.11, r.1(1), replacing ss.18 and 19 of the Common Law Procedure Act 1852. 80 See also Art.23 of the German Code of Civil Procedure and Art.14 of the French Civil Procedure Code. 81 Maharanee of Baroda v Wildenstein [1972] 2 Q.B. 283, where during a temporary visit, a writ was served upon the defendant, who was a French resident, in respect of contract, concluded in and is governed by the law of France, in an action brought by the plaintiff who was also a resident of France. The court held that it had jurisdiction, since that writ was served; cf. Colt Industries, Inc v Sarlie [1966] 1 W.L.R. 440. 82 Field v Bennett [1886] 3 T.L.R. 239; Fry v Moore [1889] 23 Q.B.D. 395; Porter v Freudenberg [1915] 1 K.B. 857. 83 See generally Alex Mills, The Private History of International Law (2005) 55(1) International and Comparative Law Quarterly 1; Bernard Rudisch and Kristin Nemeth, The Development of a System of European Conict of LawsTrying to Preserve the Substantive Standard of Harmonized Private Law (2001) 34 Comparative and International Law Journal of Southern Africa 397; D.O. Kefe and P.M. Twomey (eds), Legal Issues of the Maastricht Treaty (1994), pp.3940; Jurgen Basedow, European Conict of Laws under the Treaty of Amsterdam in Patrick J. Borchers and
The position in England and Europe Personal jurisdiction

The English conict rules73 have more or less adhered to the rule of territoriality as the basis of an adjudicative jurisdiction. In England,
there are now two quite different sets of rules as to jurisdiction of the English courts. In many cases, jurisdiction is still governed by what may be called the traditional rules, though in a growing proportion of cases, they are replaced by the Convention rules .74
The rules of international jurisdiction of the EC Member States are now governed by a Community instrument, Regulation 44/2001. This substitutes the Brussels Convention, which after March 1, 2002 ceases to operate between the Parties to that Convention, except in their relations to Denmark.75 The Regulation is binding in its entirety and directly applicable to the Member States.76 The Regulation is binding on and applicable to the United Kingdom also as a result of the
69 Ragonese v Rosenfeld 722 A. 2d. 991 (1998). 70 American Network v Access America 975 F. Supp. 494 (1997). 71 Insect Systems v Instruction Set 937 F. Supp. 161 (1996). 72 Maritz v Cybergold 947 F. Supp. 1328 (1996). 73 See generally Cheshire and North, Private International Law, 12th edn (London: Butterworths & Co, 1992); Dicey and Morris on Conict of Laws, 13th edn (2000); Graveson, Conict of Laws, 7th edn (London: Sweet & Maxwell, 1974); Inglis, Conict of Laws (Oxford: OUP, 1959); Friedrich Jeunger, Federalism: Judicial Jurisdiction in the United States and in the European Communities: a Comparison (1984) 82 Michigan Law Review 1195. 74 David McClean (ed.), Morris: The Conict of Laws, 4th edn (Universal Publishing Co, 2004), p.60; See also, Dicey and Morris on Conict of Laws, above fn.73, 291301. 75 See Regulation 44/2001 Art.1(3) and Art.68(1). 76 Regulation 44/2001 Art.76 read with Art.249 of the EC Treaty.
underwent amendment and the competence was therefore divided between the Community and the Member States. This gave the EC competence to take measures in accordance with Art.249. The Council of European Union, thus complying with Arts 61(c) and 67(1) of the EC Treaty and considering the Commissions proposal and the opinions of the Parliament and the ESC, adopted EC Council Regulation 44/2001 on December 22, 2000. The Regulation entered into force on March 1, 2002 in accordance with Art.76 of the Regulation. The Regulation aims at providing highly predictable and well-dened rules84 on jurisdiction in order to maintain an area of freedom, security and justice85 ensuring free movements of persons,86 sound operation of the internal market87 and sound administration of justice.88 The Regulation therefore applies in civil and commercial matters whatever the nature of the court or tribunal.89 The general rule is the rule of jurisdiction based on domicile of the defendant, i.e. persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.90 The domicile-jurisdiction rule is not, however, an absolute one and admits of a number of exceptions provided for under Arts 3 to 7. The Regulation, taking particular care of situations where the parties bargaining power can be assumed to be unequal, provides for much exible bases of jurisdiction in favour of the weaker party.91 Of these, the rules governing consumer contracts are of interest to our discussion here. Section 4 of c.II of the Regulation provides for special jurisdiction rules in respect of consumer contracts. To provide a strong protection regime to the consumers, the Regulation permits a consumer to sue in a Member State based on there being a branch, agency or other establishment in a Member State even where the actual party to the contract is not domiciled there.92 A consumer may also sue in the Member State of his domicile.93 A protection against any contradictory operation of the principle of party autonomy is also excluded except where the provisions are sought to be derogated from by an ex post facto agreement or in case of ex ante agreement on choice of courts, only where both the parties are habitually resident in the same Member state.94 Besides this broad category of rules creating favourable rules for weaker parties, another set of rules are particularly relevant to the discussion. These are contained in Art.5, which provides for additional special jurisdiction rules in cases inter alia of contracts and torts. Place of performance of the obligation in question, determined as the place of delivery of goods or rendering of services,95 furnishes a basis for jurisdiction in cases of contracts.96 For all delictual or quasi-delictual claims, the courts at the place of occurrence of the harmful event have jurisdiction.97 The jurisdiction rule
Joachim Zekoll (eds), International Conict of Laws for the third millennium: essays in honor of Friedrich K. Juenger (New York: Transnational, 2001), pp.175192. 84 Regulation 44/2001 Preamble Recital 11. 85 Regulation 44/2001 Preamble Recital 1. 86 Regulation 44/2001 Preamble Recital 1. 87 Regulation 44/2001 Preamble Recital 2. 88 Regulation 44/2001 Preamble Recital 12. 89 Regulation 44/2001 Art.1(1). 90 Regulation 44/2001 Art.2(1) (emphasis added). 91 See Regulation 44/2001 c.II ss.3 (Insurance Contracts), 4 (Consumer Contracts) and 5 (Employment Contracts). 92 Regulation 44/2001 Art.15(2). 93 Regulation 44/2001 Art.16(1). 94 Regulation 44/2001 Art.17. 95 Regulation 44/2001 Art.5(1)(b). 96 Regulation 44/2001 Art.5(1)(a). 97 Regulation 44/2001 Art.5(3).
under Art.5(3) gives effect also to the principle of ubiquity and therefore includes the place of the event giving rise to the harm apart from the place where the damage actually occurred.98 However, to the defamation claims, this rule applies with the following clarication: the place of event giving rise to the harm is the place of issuance and putting into circulation of libellous material, i.e. the place where the publisher is established.99 Where a contract contains a choice of court clause, the normal rule, based on the recognition of the principle of party autonomy, is in favour of enforcement of such a clause.100 While the Regulation provides that where the chosen court is a court of a Member State such court shall have jurisdiction,101 there is however no provision by which any other court is prohibited from assuming jurisdiction on any basis provided for elsewhere in the Regulation. In other words, there is a positive basis but no corresponding negative mandate. What, however, there is in the Regulation, is a provision barring jurisdiction of any court other than the court rst seised of the proceedings, i.e. a lis pendens provision. The existence, on the statute book, of these two provisions therefore leads to the question whether the rule of lis pendens applies also to a case where the parties have made a choice of court. Contrary to what was logical and perhaps obvious for some like the United Kingdom, the European Court of Justice, maintaining its position of the mandatory nature of Art.2,102 gave precedence to the rule of lis pendens over the rule endorsing enforcement of choice of court agreements.103 That Art.2 of the Regulation is mandatory and that the jurisdiction, once assumed on a basis provided in the Regulation, can not be declined by resorting to the municipal law gives rise to an acute difculty in a situation where the chosen court is one not in any of the Member States104 since this runs the risk of irreconcilable judgments, at least at the international, if not the European Union level.

In England, cases raising the issue of jurisdiction in cyberspace have been limited in number and conned
98 Bier v Mines de Potasse dAlsace [1976] E.C.R. 1735. 99 Shervill v Press Alliance [1995] E.C.R 495. 100 Regulation 44/2001 Art.23, under the section entitled Prorogation of Jurisdiction. In this regard, it must be distinguished from a more widely used phraseology [e]xclusive [j]urisdiction, which expression is used by the Regulation in the sense of nonderogable exclusive jurisdiction, of certain courts to try specic matters, as conferred and arising out of the Regulation itself. 101 Regulation 44/2001 Art.23. 102 Case C-128/01 Owusu v Jackson, ECJ, March 1, 2005. See also Barry J. Rodger, Forum Non Conveniens Post-Owusu (2006) 2(1) Journal of Private International Law 71; Richard Fentiman, Civil Jurisdiction and Third States: Owusu and After (2006) 43(2) Common Market Law Review 705. 103 Erich Gasser GmbH v MISAT Srl Case 116/02, December 9, 2003. The reasoning of the court was predominantly based on (1) the principle of mutual trust and (2) the mandatory nature of the lis pendens rule. The courts reasoning also had shades of the objectives of internal market and uniformity and harmonization. Based on these high-sounding slogans, the court disregarded that the long delay in the Italian court was detrimental to the plaintiff since the probability of a quick disposal in chosen court was very high. 104 See generally Kurt Siehr, European Private International Law and Non-European Countries in Borchers and Zekoll (eds), above fn.83, p.299.
particularly to matters of defamation and cyber crimes.105 There will be no great difculty in nding a basis for the assertion of jurisdiction by the English courts in most cases involving defamation via the internet. The publication of the defamatory material within the jurisdiction of a court is a basis for the exercise of jurisdiction under the traditional rules, the Conventions and the Regulation since this constitutes the place where the harmful event occurred.106 The place of publication is at the very heart of the cause of action for defamation. The fact of publication in the jurisdiction of court is therefore highly relevant.107 Since for the purpose of the defamation law, material is published at the place(s) where it is read, heard or seen, rather than the place from which it originates,108 a separate publication occurs, or and a separate cause of action accrues each time the material is read, heard or seen. This furnishes the basis for jurisdiction to virtually all places in the world because of the publication to a global audience.109 An English court in such a case would therefore be tempted to consider the plea of forum non conveniens. The differences in the possibility of the publishers to limit the circulation of materials published mark the difference between internet publications and the more traditional publication such as newspapers and magazines. There is therefore force in the argument in cases involving internet publications that a rule like the English doctrine of forum non conveniens should be more readily exercised. With regard to the contracts entered into through cyberspace, there is little reason to assume that a different and rather exible treatment would be accorded to such contracts. Any argument in favour of a treatment any more favourable than that accorded to a non-electronically concluded contract is expected to be dismissed by the ECJ considering the present mood, trend and objective of ECJ, which seems to be one Europe. In such a case, expecting that the court would dilute its regime and puncture its harmonisation drive merely to respond to a technological advancement seems too improbable.110 Secondly, if in respect of e-contracts the jurisdiction regime is sought to be made less rigid, it may provide the parties to act contrary to the spirit of the Regulation even while complying with form; and all this merely be opting for cyberspace as the place of contracting.
The position in India Personal jurisdiction

The principle of lex fori is applicable with full force in all mattes of procedure. No rule of procedure of foreign law is recognised. It was held in Ramanathan Chettier v Soma Sunderam Chettier 111 that India accepts the well-established principle of private international law that the law of the forum in which the legal proceedings are instituted governs all matters of procedure. In India, the law of personal jurisdiction is governed by the Code of Civil Procedure 1908 (the Code). The Code does not lay any separate set of rules for jurisdiction in case of international private disputes.112 It incorporates specic provisions for meeting the requirements of serving the procedure beyond territorial limits.113 In matter of jurisdiction what is treated differently is the question of subject-matter competence and not of territorial competence, i.e. the question of territorial jurisdiction arises in the same way in an international private dispute as in a domestic dispute. The Code provides general provisions regarding jurisdiction on the basis of pecuniary limit, subject matter and territory. Sections 16 to 20 of the Code regulate the issue of territorial jurisdiction for institution of suits.
Rules as to the nature of suit

Based on the subject-matter suits are divided into three classes: (1) suits in respect of immovable property; (2) suits for torts to persons or movable property; and (3) suits of any other kind. Suits of immovable property must be led within the local limits of whose jurisdiction the property situated.114 The Code therefore incorporates the principle of lex situs and therefore the property in this section may refer to only property situated in India. Suits for wrongs to persons and movable property may be instituted in the courts within whose local limits the wrong is done or the defendant resides or carries on business or personally works of gain.115 Suits of any other kind are dealt with under s.20 of the Code which is the default rule providing for all others cases not covered by any of the foregoing rules. Under s.20, a court can exercise jurisdiction in actions involving persons where: (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for work; or (b) any of the defendants, where there are more than one, at the time of commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case with the leave of the court has been obtained or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of section wholly or partly arises.
111 AIR 1964 Mad. 527; see also Nallatamlei v Ponuswami ILR [1879] 2 Mad. 406. 112 See ss.9 and 15 of the Code of Civil Procedure 1908. 113 See Ord.V, rr.24 to 26. 114 The Code ss.16 and 17. 115 The Code s.19.
105 A discussion of jurisdiction in case of cyber crimes is outside the scope of the present article, and the same is not addressed or dealt with here. 106 Under the Conventions and the Regulation, the damages are however limited to the injury within that state, unless the defendant is a domicile in that state. 107 Schapira v Ahronson [1999] E.M.L.R. 7355; Berezvosky v Michaels [2000] 2 All E.R. 986 (The distribution in England of the defamatory material is signicant. And the plaintiffs have reputations in England to protect. In such cases, it is not unfair that the foreigner publishers should be sued here, per Lord Steyn); Cordoba Shipping Co Ltd v National State Bank, New Jersey [1984] 2 Lloyds Rep. 91; cf. Krotch v Rossell et Campagnie Soci et e des ` Responsibilit Personnes a e Limit ee [1937] 1 All E.R. 725. 108 Shevill v Presse Alliance [1995] 2 A.C. 18; Lee Teck Chee v Merill Lynch International Bank Ltd [1998] 4 C.L.J. 188 (Malayan High Court); Pullman v WalterHill & Co Ltd [1891] 1 Q.B. 524; Bata v Bata [1948] W.N. 366. 109 Lee Teck Chee v Merill Lynch International Bank Ltd, above fn.108. 110 See generally Christopher William Pappas, Comparative US and EU Approaches to E-Commerce Regulation: Jurisdiction, Electronic Contracts, Electronic Signatures and Taxation (2002) 31 Denver Journal of International Law and Policy 325; G.G.J. Morse, International Shoe v. Brussels and Lugano: Principles and Pitfalls in the Law of Personal Jurisdiction (1995) 28(2) U. C. Davis Law Rev. 999.
Rules enforcing agreement of parties

It is well-established law in India that where more than one court has jurisdiction in a certain matter, an agreement between the parties to confer jurisdiction only on one to the exclusion of the other(s) is valid.116 The Indian law therefore recognises and gives effect to the principle of party autonomy. However, this extent of autonomy does not travel far enough so as to confer jurisdiction on a court which it inherently lacks.117 Party autonomy is also subject to the maxim ex dole malo non oritur action.118 Thus the position of law on the point is that rst, a choice of law agreement is permissible; and secondly, the agreement operates only in respect of a court which does not otherwise inherently lack jurisdiction. In any such case, the courts also consider the balance of convenience and interests of justice while deciding for the forum.119 Thus, in India, the principle is well settled that residence in the territorial limits of a court furnishes a ground for exercise of jurisdiction.120 Similarly, conduct of business by a defendant in a forum also gives to the forum court to exercise jurisdiction, irrespective of his non-presence within the jurisdiction.121 The Indian courts also assume adjudicative jurisdiction on the basis of the territorial nexus with the cause of action.122 In this regard, the consistent view of the courts in India is that the courts are empowered to pass judgments even against non-resident foreigners, if the cause of action arises in whole or part within the territorial limits of the court.123 The Code also provides for rules and procedure for international service of the processes of the court.124 However, since the courts in India do not assume jurisdiction, unlike in England, on the basis of service of writ, these provisions are of not much consequence to issues of jurisdiction.

Unfortunately, only a very few cases concerning personal jurisdiction in cyberspace have been decided by the superior courts in India.125 The reason perhaps is that residents in
116 Hakkam Singh v Gammon (India) Ltd AIR 1971SC 740; Globe Transport Corporation v Triveni Engineering Works [1983] 4 S.C.C. 707; RSDV Finance Co P Ltd v Shree Vallabh Glass Works Ltd AIR 1993 SC 2094. 117 United Commercial Bank v Workmen [1951] S.C.R. 380; Hira Lal v Kali Nath [1961] 2 S.C.R. 747; Nai Bahu v Lala Ramnarayan [1978] 1 S.C.C. 58; Chief Justice, AP v Dixitulu [1979] 2 S.C.C. 34; GM, ONGC, Sibsagam v M/s Raj. Engineering Corp AIR 1987 Cal. 165. 118 ABC Laminart (P) Ltd v AP Agencies AIR 1989 SC 1239. See also Rewa Mahton v Ram Kishen (1886) 13 I.A. 106 (PC). 119 Union of India v Navigation Maritime Bulgare AIR 1973 Cal. 526. 120 Kashinath v Anant ILR (1899) 34 Bom. 407; Fernandes v Ray ILR (1897) 21 Bom. 373; see also Sriniwas v V.V. Ayyangar ILR (1906) 29 Mad. 239; M. Mudaliar v Andappa Pillai AIR 1955 Mad. 96. 121 Chunnilal Kastuschand v Dundappa Donappa AIR 1951 Bom. 190; Frontier Bank Ltd v Shrimati Prakashwati Bahl ILR (1950) Punj. 635. 122 Ram Bhat v Shankar Baswant ILR (1902) 25 Bom. 528; V.E. Smith v Indian Textile Co. AIR 1927 All. 413; Gaekwar Baroda State Railway v Sheikj Habib Ullah AIR 1934 All. 740; Patel Kala Bechar v Patel Mohan Bhagwan AIR 1953 Sau. 16. 123 R. Blainpain and B. Verschraegev (eds), International Encyclopedia of Laws: Private International Law (The Hague: Kluwer Law International, 2005), p.555. 124 See generally Ords III, V of the First Schedule to the Code. 125 Though there are a few cases on cyber crimes and domain name disputes. See for example, BulBul Roy Mishra v City Public
India have not yet accepted or adapted themselves to this new technology as a t mechanism to undertake legal obligations (coupled with an extremely slow justice delivery system). The approach adopted is similar to the minimum contacts approach of the United States coupled with the compliance of the proximity test of the Code.126 Considering the present rules of international jurisdiction and the tendency of the Indian courts to suitably modify, the existing domestic rules to international situations in other areas of private international law may be analysed. The reaction of the court would much depend on whether the contract contained a choice of court clause or not. Case I: where the contract contains a choice of court clause. In such a case, the Indian courts would normally give effect to such a clause subject only to a survey of forum non conveniens particularly when the same would result in foreclosure of its own jurisdiction. Case II : where the contract does not stipulate an agreed forum. In a case of this sort, the Indian courts would be inclined to apply the test of s.20 CPC since none of the other provisions seem to be of much assistance. The court would make a twin inquiry: place of habitual residence of the defendant and proximity of the cause of action to the forum, where even an in part cause of action may furnish sufcient basis to exercise jurisdiction. Thus the Code provides for the tests of both objectivity and proximity to base its jurisdiction. While the legal system favours exercise of jurisdiction on the basis of proximity of cause of action, its exercise based on the residence of the defendant is also accepted for three reasons: (1) ease of enforcement; (2) compliance with audi alteram partem; and (3) the (draconian) law of contempt of courts in India (as in most other common law countries). For the purpose of determining whether the cause of action arose in the local limits of a court, the courts generally go into the question of place of conclusion of the contract.127 However, it seems that the place of conclusion of contract would not be of much assistance in case of an e-contract.128 There would be an insoluble confusion between the rules governing completion of communication of offer, acceptance and revocation.129 The rule in the Bhagwan Dass case130 would neither apply nor lend much support in reaching a reasonable solution in contracts entered into through the internet. Thus the Indian position as may also be inferred from the trend of the Indian courts may be summarised as follows: an Indian court would not decline jurisdiction merely on the ground that the international contract in entered through the internet. It examines the two bases of jurisdiction: domicile of the defendant and proximity to cause of action. Even if one is found to be satised, the Indian court it seems would assume jurisdiction. However, it would be for the plaintiff to prima facie also convince that the courts elsewhere do not
Prosecutor, Criminal Original Petition No.2205 of 2006, decided April 4, 2006. 126 (India TV) Independent News Service Pvt Ltd v India Broadcast Live LLC CS (OS) No.102/2007, decision dated July 10, 2007. 127 See Bhagwan Dass Govardhan Dass Kedia v Purshottam Dass & Co AIR 1966 SC 543. 128 The anarchic rule conferring jurisdiction on the court where the contract was concluded has ceased to be operative in almost all legal systems today. India, unfortunately, continues with this outdated rule. 129 See [Indian] Contract Act 1872 s.4. 130 Above fn.127; the test laid down in this case is that in cases of means of instantaneous communication, the contract is said to be concluded at the place where the acceptance comes to the knowledge of the proposer.
have a better basis of jurisdiction since the Indian courts in such a case may also feel tempted to analyse the issue of jurisdiction from the stand point of the doctrine of forum non conveniens as also anti-suit injunctions and thus decline to exercise jurisdiction even where there existed legal basis to do so.131
The solution
There exist irreconcilable differences in what different scholars consider to be solution(s) to the problem of jurisdiction in cyberspace. The vast spectrum of diversity has at one end, a suggestion that there exists no reason to be panicky about cyberspace as the new world132 and that it merely requires a straightforward application133 of existing conict rules; whereas the scholars at the other extreme suggest a need for a fundamental re-examination134 of the working of jurisdiction and creation of an entirely new set of rules.135 The difculty in agreeing upon potential solution(s) arises and is deep-rooted in the very understanding of cyberspace, whether as a place, a means of communication, technological state of mind, etc.136 For the purpose of an analytical study
131 (India TV) Independent News Service v India Broadcast Live, above fn.126. 132 Jack L. Goldsmith, About Cyberanarchy (1998) 65 U. Chi. L.R. 1199; see also Lawrence Lessig, The Zones of Cyberspace (1996) 48 Stanford Law Review 1403; Timothy S. Wu, Cyberspace Sovereignty?The Internet and the International System (1997) 10 Harvard Journal of Law & Technology 647; Shane A. Orians, Exercising Personal Jurisdiction on the Internet: The Misapplication of the Asahi Metal Decision to Cyberspace (1998) 24 Ohio Northern University Law Review 843; Ari Lanin, Who controls the Internet? States Rights and Reawakening of the Dormant Commerce Clause (2000) 73 South California Law Review 1423; Stephan Wilske and Teresa Schiller, International Jurisdiction in Cyberspace: Which States may Regulate the Internet? (1997) 50 Federal Communications Law Journal 117; Jack L. Goldsmith, The Internet and the Abiding Signicance of Territorial Sovereignty (????) 5 Indiana Journal of Global Legal Studies 475; Jack L. Goldsmith, Regulation of the Internet: Three Persistent Fallacies (1998) 73 Chicago-Kent Law Review 1119; Steven Hanley, International Internet Regulation: A Multinational Approach (1998) 16 John Marshall Journal of Computer and Information Law 997 (1998). 133 Henry H. Perritt Jr, Jurisdiction and the Internet: Basic Anglo/American Perspectives Projects in the Coming 2000s, www.ilpf.org ; Henry H. Perritt Jr, The Internet is Changing International Law (1998) 73 Chicago-Kent Law Review 997 (1998). 134 David R. Johnson and David G. Post, Law and BordersThe Rise of Law in Cyberspace (1996) 48 Stan. L.R. 1367; see also John T. Delacourt, Recent Development: The International Impact of Internet Regulation (1999) 38 Harvard International Law Review 207; David G. Post, Anarchy, State and the Internet: An Essay on Law-Making in Cyberspace (May 1995), available at www.wm.edu (last accessed June 14, 2007); David G. Post, Against Against Cyberanarchy in Adam Theierer and Clyde Wayne Crews Jr (eds), Who Rules the Net? (2003); Joel R. Reidenberg, Governing Networks and Rule Making in Cyberspace (1996) 45 Emory Law Journal 911; Barry J. Waldman, A Unied Approach to CyberLibel: Defamation on the Internet, a Suggested Approach (1999) 6 Richmond Journal of Law and Technology 9; William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community (1995) 30 Wake Forest Law Review 197. 135 David R. Johnson and David G. Post, And How shall the net be governed? A meditation on the relative virtues of decentralized, Emergent Law, www.cli.org . 136 See generally Ryder, above fn.4, 206; see also Sanjay S. Mody, National Cyberspace Regulation: Unbundling the concept of jurisdiction (2001) 37 Stanford Journal of International Law 365 and Allen Stein, The Unexceptional Problem of Jurisdiction in Cyberspace (1998) 32 International Lawyer 1167; Richard Zembek, Jurisdiction and the Internet: Fundamental Fairness in the
of the topic, the different suggestions may be considered. There are four basic competing models for the governance of the global net137 : simple extension (with adjustments) of the existing rules of international jurisdiction138 ; a multilateral treaty based establishment of new and uniform jurisdiction rules139 ; establishment of a new international organisation to propose a set of rules appropriate for cyberspace jurisdiction; and, an optimism of emergence of individual decentralised decisions by various actors and stakeholders. None of these models is free from difculty. Each has merits and demerits of its own. However, the model endorsing the conclusion of a multilateral treaty based establishment of new and uniform jurisdiction rules seems most appropriate for several reasons. One factor which favours such a model over all others is the story of evolution and development of private international law. We began from a stage when there was no foreign element in disputes before municipal courts. The gradual increase in international trade and movement of persons and goods necessitated private international law rules. Owing to limited means and resources, different legal systems answered the same set of foreign elements in their own unique way, which was in some instances strikingly different from one another. This resulted in different set of conicts rules in different countries. Upon realising that such diverse conict rules actually hampered, rather than promoted, international trade and movement of persons and goods, the world wake up to a harmonisation drive. Unfortunately, this drive has not so far been successful in most areas of conicts. In context of cyberspace, we are at much the same stage as we were centuries back when international trade had just begun to open up. To allow sovereigns to develop their own rules of cyberspace jurisdiction without having made an endeavour to reach a treaty based solution would mean rewinding to centuries back and to ignore the wisdom and experience we gained during all these years. The mistakes that we committed by compulsion centuries ago should not be committed by choice now. Since cyberspace is a global phenomenon which transcends, ignores and bypasses geo-political borders, solutions likely to be appropriate must also be global, or in any case multilateral. In other words, the likelihood that a proposed scheme or arrangement would resolve the issue of jurisdiction effectively increases with the increase in multilateral basis. Therefore, despite its demerits of being a slow process and a generalised approach, it seems that international harmonisationwhether in the form of voluntary convergence of national regulatory laws or of a treaty adopting a uniform international standard or by soft co-operation among national enforcement agencieswould
Networked World of Cyberspace (1996) 6 Albany Law Journal of Science and Technology 339; Trotter Hardy, The Proper Legal Regime for Cyberspace (1994) 55 Pittsburg Law Review 993. 137 Johnson and Post, above fn.135. 138 Uta Kohl, Legal Reasoning and Legal Change in the age of the Internet: Why the Ground Rules are still Valid (1999) 7(2) International Journal of Law and Information Technology 123; see also Uta Kohl, Eggs, Jurisdiction and the Internet (2002) 51 International and Comparative Law Quarterly 555 (2002); Andreas Manolopoulos, Raising Cyberspace: The Interaction between Law and Technology (2003) 11 International Journal of Law and Technology 40. 139 Moritz Keller, Lessons from The Hague: Internet Jurisdiction in Contract and Tort Cases in the EC and the US (2004) 23 John Marshall Journal of Computer and Information Law 1; Sean Selin, Governing Cyberspace: The Need for an International Solution (1997) 32 Gonzaga Law Review 365.
be the most promising and feasible solution, provided that the scheme of the treaty admits of limited reservations and establishes an international regulatory body and a dispute resolution system. Besides being a charter of a uniform international standard,140 a treaty may also specify the outcome characteristics of particular transactions; state general governmental policy objectives; or establish international choice-of-law rules that specify which nations law governs particular transactions.141 At the same time, one can not afford to lose sight of the fact that any legal doctrine that gives the right of regulation of the net to one country (or state, county or city) must give that right to all sovereigns. Therefore, all States must decline to exercise jurisdiction unless they consider it equally permissible for other states, in similar circumstances, to assume jurisdiction. Even if the present state142 of knowledge and understanding of cyberspace and legal issues related thereto does not permit a detailed agreement on intricate technology based issues, a more policy based framework convention would only form a strong foundation for the future harmonisation and guide the municipal courts in this regard. Thus, to whatever extent agreement is possible, a convention may be negotiated and drawn up. However, for aspects on which no consensus may be reached, an international monitoring or regulatory body with some binding authority may be assigned the task of analysing, etc. rules of cyber jurisdiction. Such a body may, on the lines of UNCITRAL, UNIDROIT, etc. may propose and adopt certain model laws for the states to base their municipal legislations on.143 Still other aspects may have to be inevitably left to the municipal courts to rule upon since it is only in a real factual situation that issues which could not be contemplated will arise, requiring courts to adjudicate upon the legitimate interests of the parties. Expecting a comprehensive treaty based solution on all possible issues is unrealistic and also undesired for cyberspace is only a few decades old and a number of more complex issues are yet to surface. And, to decline to act merely because a comprehensive agreement looks difcult is to act contrary to the collected wisdom from the past.
may form reasonable and acceptable bases of jurisdiction for an international convention. However, since disputes would arise even before a certain degree of international harmonisation is reached, compelling the courts to render judgments, the following are the suggestions on the issue of personal jurisdiction in cyberspace to municipal courts:
Domicile-jurisdiction rule
The nearly universally accepted rule of founding jurisdiction on the basis of the domicile of the defendant may constitute a good general rule for cyberspace also. The territorial nexus of the defendant is not expected to produce much disagreement or opposition. A Brussels Regulation Art.2-type rule may nd quick agreement. However, the denition of the expression domicile, unlike in the Regulation, should not be left to the municipal regimes. At the same time, territorial nexus must not be confused for mere casual presence and for a very short period of time. Most legal systems, including England, have abdicated this rule in favour of a rule of domicile and/or habitual residence. However, physical territorial presence at the time of the commission of an act so as to facilitate its commission may also form a just basis for jurisdiction.
Rule of proximity to cause of action

Since physical territorial presence is often inconsequential to a wrongful act in cyberspace and mostly difcult to trace, an extended meaning may be assigned to presence as contextual presence. Presence must thus be presence for the purpose of and in relation to the cause of action. Proximity to the cause of action may serve as a reasonable basis for exercise of what Americans understand to be special jurisdiction. Even so, proximity must not be sought to be determined in terms of minimum contacts or any other municipal law expression to ensure a highest degree of uniformity. Whether or not there is an actual proximity to the cause of action may be, instead, best left as a question of fact, to be determined by application of the judicial mind to the facts of each particular case. This approach is expected to meet criticism of some of the sceptics and would ensure that each state imparts justice in each individual case in accordance with its own notions of constitutional rights and obligations. This approach has the merit of adequately blending legal predictability (of the basis of jurisdiction) with exibility (of its exercise) in each individual case. This would also partly accommodate the concern of the United States to give necessary choice to the parties to determine whether or not they wish to become connected to (and consequently, subject to the laws of) any given sovereign in respect of a cause of action.144
144 The report on Global Jurisdiction Issues Created by the Internet (American Bar Association, 2000, s.2.2, London meeting draft) prepared and submitted by the American Bar Association clearly indicates the importance of targeting for the purposes of jurisdiction to prescribe and to adjudicate: Such a chosen relationship will subject the foreign actor to both personal and prescriptive jurisdiction. The critical issues are the intent of the website sponsor and what constitutes sufcient evidence of that intent. When transactions are involved, the best evidence of intent is the willingness to deal with the persons in that forum.
Some proposed rules of jurisdiction

Considering the complexities of the cyber world and conscious that the presently known complexities are only the tip of the iceberg, as well as realising that disputes have and will continue to arise, it is a considered view that the following
140 An example of a treaty establishing a uniform international standard is the United Nations Convention on the International Sale of Goods. 141 A good example of a treaty that establishes an international choice-of-law regime is the Rome Convention on the Law Governing Contracts. 142 So far, international harmonization of issues of jurisdiction is relatively limited. Various international Conventions dealing with the harmonization of specic areas of law contain provisions on jurisdiction over disputes arising in the specic eld. However, as regards jurisdiction and the enforcement of foreign judgements in general, a widely accepted multilateral instrumentwhich would also cover intellectual property disputesdoes not yet exist: WIPO on International Harmonization of Jurisdictional Issues, available at www.wipo.int . 143 The UNCITRAL Model Law on Arbitration sets a valuable precedent as it forms the basis for domestic legislations in a number of states, including India.
Effects as a basis of jurisdiction

If the mere contact, on the basis of which jurisdiction is sought to be assumed, is the effects of an online act, its exercise must be declined unless the effect is itself an essential ingredient of the wrongful act145 or unless there exists no other more appropriate forum for redress to the plaintiff. In such a case, the place where the harm occurred or its effects surfaced may form an acceptable jurisdictional basis.
that the necessity of international harmonisation steps in. Since all international harmonisation is a compromise, an overambitious agenda to have a comprehensive and perfect set of rules may be detrimental to the whole exercise.
Summary and conclusions

In a matter which is as unknown to a judge as a legislator, it is difcult to suggest whether a common law or a civil law approach should be the preferred one. To favour the view to learn with experience and time would mean allowing the common law courts enough time to decide a good number of cases and attract the application of their doctrine of stare decisis. This would jeopardise the harmonisation process at a later stage. To favour the other approach of laying down some inexible rules (purporting to be comprehensive) comes with the risk of compromising justice. While the desired harmonisation is not reached and/or the states do not legislate on the basis of the model laws referred to above, the difculty will remain paramount for the courts. It is there that the important question will arise: in the absence of statutory and international guidelines on cyber jurisdiction, how far would resorting to private international law norms, as prevalent in different legal systems, be justied and/or feasible? This inquiry has a twofold concern: the inevitability of municipal courts decisions and the inappropriateness of conicts rules being related to cyberspace. It must be understood and realised that the rules of jurisdiction, just as any other concept of private international law, were framed or evolved in order to address the then existing circumstances, political order, sense of justice and the targeted social order. No rule of law can be t for all ages even in identical set of circumstances; a change in time, accompanied by changing circumstances, socio-political order, therefore calls for modication, and in some cases, abdication of the old in favour of a new rule. Thus, when any of the factors that contributed to the formulation of a rule changes, so must also the response of law to them. The main problem lies in attempting to extend to this new virtual world the existing rules of private international law, which were evolved to best suit the transactions of a traditional politically divided real world. The new world is almost completely free from elements that led to the evolution of conict rules. The only sustainable solution then seems to lie in framing new rules, which answer the problems considering the peculiarities of this new world that the courts are confronted with today. In such a case, a different approach147 may have to be devised, unique to each legal system and in accordance with its own constitutional scheme and notions of fairness and justice, in order to exercise jurisdiction over non-resident online users. To expect or require a municipal court to uphold and apply an international norm of jurisdiction in complete disregard of the notions of its own constitutional rights and wrongs, is doubtless impolitic and unrealistic. Undoubtedly law, being a social science, cannot grow at the pace at which science and technology grow. Nevertheless, every endeavour must be made to keep pace with their growth. It is possible only when law modies itself in the light of new developments in science and technology, progressing at both a micro, issueby-issue. level as well as a broad, trans-substantive level.
147 Jean-Gabriel Castel and Janet Walker, Canadian Conict of Laws, 5th edn (Canada: Butterworths, 2003), para.11.47.
Special rules in cases of consumer contracts

In the context of consumer contracts, a rule favouring a very strong protectionist regime may not be suitable for cyberspace. Any overambitious rule akin to the Brussels I Regulation Art.15 is likely to lose sight of the market selfregulation approach of the United States. The latter seems to be a more appropriate rule for consumer contracts concluded through cyberspace. The inappropriateness of the rule can be best understood by examining the implications, if such a rule is hypothetically adopted. Consumers are generally spread across jurisdictions and the deliberations one makes while deciding in favour of or against concluding a consumer relationship is far less than in a B2B contract. The possibility of negotiation is much less in consumer contracts and whatever little there is, is often excluded by the municipal laws of different countries, sometimes in the name of public policy, sometimes in the name of mandatory rules and sometimes under the banner of constitutionally guaranteed fundamental rights. This would expose a potential seller/service provider to the risk of litigation in almost all countries of the world. Any temptation to be guided by an emotion to protect the weak consumer must therefore be resisted in favour of the need to prevent the hindrance in the development of the internet as a means of entering into legally binding relations. Such a rule may further, in some cases, lead to a denial of an effective compliance of the rule of audi alteram partem. Nevertheless, since the consumer needs to be given at least some protection considering his weak bargaining power, it may be reasonable to adopt a rule conferring jurisdiction upon the courts of the state where the consumer is domiciled if the other party also has an ofce, branch, agency or other establishment etc within the territorial limits of the same state. Similarly, jurisdiction may be exercised when it is made out on the basis of proximity of the cause of action. Some of the rules referred to in the previous section may be of great assistance in an effort to reach a treaty on international jurisdiction in cyberspace. These rules have been chosen and proposed on a two prong criterion: (1) the degree of acceptance and (2) reasonableness. A balance must therefore be made between the necessary liberty for technology and the need to check its possible abuse. While a strict view on cyberspace jurisdiction runs the risk of its unbridled and unchecked misuse, a rather casual view of jurisdiction may mean ghting the wrong enemy with the wrong weapons in the wrong battleeld. This may indeed retard the potential growth of the internet. Thus each court must properly weigh and address the competing claims of the parties before giving effect to one over the other, keeping in view also the possibility of enforcement.146 It is here
145 For example, in defamation it may be resorted to. 146 See the relation between enforcement and curial jurisdiction under the heading International jurisdiction above.
No single model solution is sufcient in itself to adequately address the problem. Cyber jurisdiction can be addressed only by a proportionate contribution from all the models, complementing and supplementing each other. But, before adopting any one model or any combination of different models, it must be remembered that the internet is here to stay, and so is its potential to commit and facilitate unlawful acts, and the resultant litigation. Therefore it is
necessary for each state to participate in every attempt to harmonise the rules of jurisdiction and to codify such rules into domestic legislations, even where no international harmonisation is reached. This will ensure that both sides of a cyber litigation will be faced in a predictable forum with certain legal consequences the prior knowledge of which would enable them to act accordingly.

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