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Jurisdiction: Building Confidence in a Borderless Medium

July 26-27, 1999
Montreal, Canada

Appendix I: International Copyright Infringements In Cyberspace: A Conflict-of-laws Analysis

Kazunori Ishiguro

Professor Of Law
The University Of Tokyo
Faculty Of Law

Paper submitted to Session F-1 of the SOFTIC Symposium on a Balance between Protection and Exploitation of Digital Content, held in Tokyo: November 13-14, 1997


People tend to say, especially since the beginning of the commercial use of the Internet[1], that legal problems in cyberspace are quite different from those in the real world[2]. Sometimes, those who have such “feelings" even say that traditional legal frameworks, including that of "conflict of laws" and the principle of territoriality based on the regime of international copyright conventions, should give way to the new system of cyber laws[3]. P.E.Geller, the co-speaker of Session F-1, is among the people who believe in the need of such revolutionary ideas, and says that the functional analysis and/or the principles of preference, some of the features of the so-called U.S. revolutions in conflict of laws, especially in the choice-of-law process, should be followed in solving cross-border copyright problems in cyberspace[4].

However, one must scrutinize whether there is a real need of a new system, and whether the new rules for cyberspace developed so far by the revolutionists are well-founded, reasonable and practical for everyday use in court proceedings. At first sight, it seems to be the proper way to follow such radical views which might be called as “legal impressionism", but that may end in an impasse, as evidenced in the U.S. choice-of-law revolutions since 1963[5].

Apart from methodological questions, there are not a few cross-border problems which should be solved on the level of conflict of laws, including, but not limited to, choice-of-law and jurisdictional problems. The recognition and enforcement of cross-border injunctions[6] is one of the major topics in cyberspace. A worldwide injunctive order as seen in the U.S. case of Stack v. Microsoft[7], if rendered in the GII (Global Information Infrastructure) context, may have a chilling effect on the further development of information superhighway[8]. The U.S. “PLAYMEN" case[9] should be analyzed by the same token, according to the view of the present author.

This paper is composed of three Parts. Part I will address the above-mentioned trend of “rethinking international copyright" and review the alleged need of a new system and, and at the same time, call some attention to the present stage of the U.S. revolutions on conflict of laws. Part II will point out some of the major conflict-of-laws problems in cyberspace which lie beyond methodological problems treated in Part I, taking into account various proposals which have been put forward by academic writers, and analyze them from a Japanese perspective. Part III is the conclusion.

Part I: The Need Of A New Methodology On Conflict Of Laws For International Copyright Infringements In Cyberspace?

1. Beyond The Principle Of Territoriality And/Or The Conventional System Of Conflict Of Laws?

Ginsburg states that the GII “erodes (if it does not completely undermine) [one of the] premise[s] of the private international law of copyright", namely the premise that “international infringements will occur sporadically, and seriatim, as works move relatively slowly from one Berne member [country] to another". She also states that “[t]he principle of territoriality becomes problematic if it means that posting a work on the GII calls into play the laws of every country in which the work may be received when ... these laws may differ substantively[10]."

However, the problems posed by this challenge to conflict of laws (private international law) should be viewed, as Fentiman[11] correctly notes, not as the difference in kind, but as that in degree. Phenomena similar to those in digital world can be found, inter alia, in international product liability and cross-border pollution cases, if victims are scattered in various countries[12]. According to Ginsburg, even applying the law of only one country seems to be “daunting" in digital world[13], but that depends on the posture of a forum country on “the proof of foreign law", a problem slightly touched by Fentiman[14], which differs greatly between common law countries and civil law (European continental) countries[15]. Application of a foreign law is the very prerequisite to conflict of laws, and that cannot and should not be got around. Ginsburg notes further: “[O]n the GII, there will be no physical territoriality. ... Without physical territoriality, can legal territoriality persist?[16]" However, this remark is far from persuasive to the present author.

Similar problems lie in the argument of Burnstein's Notes. He states as follows: “Traditional notions of jurisdiction are outdated in a world divided not into nations, states ... but networks .... Well-known jurisdictional doctrines such as “purposeful availment" lose meaning in cyberspace. ... The networked world is different and requires a different approach.[17]" On the one hand, in the so-called “unified approach to choice of law in transnational cyberspace"[18], he states: “Cyberspace confounds notions of place and location. ... Place or location mean little or nothing when it comes to cyberspace ...."[19]. On the other hand, he moves back, by so-called “conceptual analogies", to the traditional conflict-of-laws approach to the “two-ship collisions" in high seas[20], also suggesting a solution rather within the framework of the conventional notion of party autonomy in conflict of laws[21]. Following such steps, and fearing the problems of “flags of convenience in cyberspace"[22], he finally suggests the role, in cyberspace, of “the Law Merchant" and the need of a multilateral choice-of-law treaty[23], an old-fashioned escape sometimes used in a conventional conflicts analysis, too.

However, apart from the undeniable impression that Burnstein seems to walk up and down between the two - the conventional and the new - regimes[24], it should be always kept in one's mind that damages are felt in the real world, not in cyberspace. In other words, damages which will be remedied by a legal proceeding must be suffered in the real world, not merely in the virtual world, though details depend on the individual legal system concerned. The distinction between the real world and cyberspace, in the argument of Burnstein, does not successfully explain the need of a new conflict-of-laws system.

2. The U.S. Revolutions On Conflict Of Laws And The Aftermath

One must be cautious in understanding the meaning of the “conventional" conflict of laws, at least when one is going to analyse the arguments of the U.S. authors, because in the U.S., since 1963[25], the so-called revolutionary theories on conflict of laws, especially on choice of law, have been adopted by the U.S. courts. This point is not clear in Burnstein"s argument, but Geller distinguishes between “categorical", namely the traditional (Savigny-type) conflict-of-laws system, adopted in principle in European countries including U.K. and also in Japan, and the revolutionary one.

Geller argues that "to respond to the shift from geographical space to cyberspace, courts may have to move from categorical to functional analysis[26]". The main advocate of the functional analysis is Arthur T. von Mehren[27], but curiously enough, his name is not directly referred to by Geller in introducing “functional analysis"[28]. In another article published later, Geller uses the word "functional choice-of-law analysis"[29]. Therefore, it might be possible that he uses the word “functional analysis" in a different meaning from that of von Mehren's theory.

However, one must be very cautious of the point that, if von Mehren's theory is meant by Geller, the outcome of the hypothetical case of Buster Keaton's classic film work The General, loaded into a database and put on-line[30], will perhaps be different from that of Geller. In the said hypothetical case, a media enterprise headquartered in the U.S. colorizes the film work and makes this version accessible in digital format through a trans-Atlantic network; end-users in France and Germany can order the work through the network; in the U.S., copyright in this work has lapsed; in France, moral rights protect it, but not economic rights; in Germany, all rights in it still subsist[31]. Geller argues that, if "Keaton's successors in interest sue the enterprise in the U.S., asking the court to enjoin it from making this work accessible from the U.S.", the U.S. court "may apply the laws of France or Germany to protect the work in these other countries.[32]"

Although Geller simply notes that "there are no longer any rights in the U.S."[33], the crucial point must be, according to the functional analysis established by von Mehren, policy implications of the laws of relevant countries, including that of the U.S.. The fact that, in the U.S., copyright in the work has lapsed means that it is definitely in the public domain. If it is the policy statement of the U.S. law that the work shall not be the object of exclusive rights any more, that should be weighed against the conflicting policies of French and German laws. Perhaps according to other revolutionary theories in the U.S. as well, including that of Brainerd Currie[34], the governmental interest or policy implication of the U.S. law in the said hypothetical case will not so simply be disregarded as seen in Geller's argument, as far as the present author understands.

Similar problems can be found in his arguments on "principles of preference". On the one hand, referring to the theory of David F. Cavers, he admits that the principles of preference have rather narrow reach, “leaving ample room for independent judgment to any courts that resorted to them[35]". On the other hand, concerning preliminary measures, he states as follows: "The principle of preference for the most effectively protective law, in such a situation [namely, copyright infringements in digital networks], could allow the court to base the preliminary injunction on any law under which the work at issue is protected in any of these countries served by the network[36]". One should be allowed to ask whether there is ample room left for independent judgment to any courts that resorted to this principle, and further ask whether Geller's principles of preference are quite different in nature from that of Cavers[37].

The reason why Geller suggests such a principle for provisional measures is that "[i]t is extremely cumbersome to seek preliminary remedies on the basis of multiple laws[38]". In other words, "a procedural difficulty at the threshold of a legal action[39]" is the main reason for his argument. However, it is a bit questionable to the present author whether his argument is well-founded.

Furthermore, Geller argues that, after the issuance of preliminary measures, "counsel [of each party] and the court have the time to explore more differentiated solutions in the light of all possibly applicable laws", but he only suggests several possibilities thereupon[40]. The threshold of Geller's arguments is correct in that he states: "The Berne principle of national treatment will ... continue to require the choice of the law of the country where protection is sought. It implies ... the application of the law effective where remedies take effect[41]." However, if Geller's above-mentioned suggestions are the very meaning of "the dissolution of territoriality[42]", the present author cannot follow them. On the one hand, there will occur cases where it is far from easy to find out the most protective copyright law[43]. On the other hand, one should also take into account the fact that “although the effect of ... enjoining infringing acts is formally temporary, the reality is that such [provisional or interim] relief frequently puts a permanent end to such acts[44]". Geller's argument is clearly on the side of "authors and media enterprises" who fear that otherwise “their copyrights might be ... washed away through the electronic sieve[45], but seems to be a bit one-sided.

The U.S. revolutions on conflict of laws themselves seem to be in a great impasse. The use of prisoner's dilemma in this context[46] is not so helpful, according to the understanding of the present author[47]. However, here in the course of the present discussion, it is rather doubtful whether the same revolutions are going on in cyberspace as those in the real world.

Part II: Major Conflict-of-laws Problems In Cyberspace Concerning Copyright Infringements: A Japanese Perspective

1. Applicable Law

(1) The Lex Protectionis V. The Lex Originis

In cases of international copyright infringements in cyberspace, the applicable law will be determined by conflict-of-laws (choice-of-law) rules of the forum country. The prerequisite to the determination of the applicable law is the so-called characterization on the level of conflict of laws[48]. That process may sometimes become a difficult one, especially in cases such as those of multiple parties, if one considers the so-called "dépeçage" problems which may occur in a serious form also in the traditional, Savigny-type system of conflict of laws[49]. If there is a direct contractual relationship between the parties, it would be sometimes reasonable to apply the proper law of the contract even to infringement cases, although the interference of mandatory rules of relevant countries may pose difficult problems also there[50]. If there is not such a relationship, the applicable law will be that of torts[51]. The problems posed by recent discussions are actually centered on the applicable law on torts. Therefore, that aspect of the problems will be dealt with here[52].

According to the traditional understanding, the law applicable to international copyright infringements is the law of the country in which protection is sought[53], more precisely, the law of the place of infringement (the lex protectionis)[54]. The multiplicity of such a law is the threshold of the problems in cyberspace.

The Green Paper of the EC Commission is of the opinion that "the applicable law ought to be the law of the Member State from which the service originates" (the country-of-origin rule or the rule of the lex originis)[55]." The solution proposed there is the same as in the Satellite and Cable Directive[56], and is seen as a divergence from the traditional principle of territoriality[57].

However, various questions have been correctly raised about the solution of the Green Paper and/or the Satellite and Cable Directive. Firstly, as Fentiman states: It is a "return" to "the old idea", namely "a return to an era before the Berne Convention". He also states: [T]he place of origination is likely to be the right-holder's local law, certainly if the right-holder is, say, an on-line publisher. It allows such local right-holders to vindicate their rights conveniently, and under a single law, as against infringers in numerous jurisdictions. It removes any need to proceed in each infringer's jurisdiction under a different law in each case. ... But the case for substituting the lex protectionis with the new lex originis is ... problematic[58]."

Secondly, as Geller states, while the rule of the lex originis "seems to be formally simple and clear, it cannot be applied with certainty in digitally generated networks where transmitting and receiving computers, scattered and even moving among myriad countries, can interactively change roles with ease[59]." Thirdly, as Ginsburg states, "if the approach is extended to the whole world, ... pirates will seek to upload from the least protective country possible." In other words, the prerequisite to the rule of the lex originis is the "establishment of a common level of protection" among the member countries of the EU[60]. And, at the same time, "instituting safe-guard rules to forestall such maneuvers could lead to a potentially complex set of exceptions that would swallow up the rule itself[61]", and would run counter to the principle of national treatment under the Berne Convention, if the case is covered by that. Fourthly, there will remain problems of recognizing and enforcing a judgment rendered in the country of origin in other countries concerned, including those of the places of multiple infringements[62]. These difficulties will be posed by the lack of a treaty system like Brussels Convention, the territorial coverage of which was enlarged by the Lugano Convention, which ensures the recognition and enforcement of foreign judgments among the member countries[63]. Therefore, the rule of the lex originis would not always meet the need of simplicity on the side of right-holders sufficiently. They may have to proceed in each country of the place of infringements in order to enforce a judgment which they obtain, except in cases where they seek only money judgments and the defendants have sufficient assets within the territory of the rendering country[64].

Criticizing, on the one hand, the rule of the lex originis, Ginsburg, on the other hand, proposes a rule similar to that for cases of infringements alleged to occur in multiple territories. According to her proposal: The law of the forum country is applicable, “if that country is also either the country from which the infringing act or acts originated; or the country in which the defendant resides or of which it is a national or domiciliary; or the country in which the defendant maintains an effective business establishment[65]".

Although, considering some nexus, she seeks to avoid the "excesses" of forum shopping in formulating the rule[66], it is a bit doubtful for the present author to follow that. Most of the problems posed with regard to the rule of the lex originis seem to remain in the first part of her rule. It depends on the details of each case whether nationality, domicile, residence or an “effective" business establishment of a defendant in the forum country is a sufficient nexus in determining the applicable law. Furthermore, suppose a case in which, even if an infringing act of one of the defendants is originated from the forum country, other defendants also infringe the rights of the plaintiff in other countries, namely a case of multiple defendants scattered in various countries. Is the forum law applicable to claims against all defendants? If the answer is affirmative, Ginsburg's rule might be seen as somewhat too rigid. If the applicable law is split from defendant to defendant, that outcome should be viewed as "daunting", too, according to her basic concerns[67].

As Fentiman correctly states, "[i]n important ways the conflicts principles involved [here] are no different from those in the non-digital world", and the lex loci delicti, in the present context the lex protectionis, should be applied to infringements in cyberspace as well[68]. "In reality - as might be expected - no one approach is likely to introduce stability, and secure the protection of legitimate rights, in a world where the disadvantages of legal diversity may be seriously increased." “[W]idespread harmonisation" is perhaps the only way to override the practical difficulties, although one should "keep an open mind as to the success of that strategy[69]".

(2) Application Of The Law Of Only One Country To Cases Of Multinational Infringements

An approach similar to that of the above-mentioned Green Paper has been adopted by some U.S. courts "by applying U.S. law to the entirety of a multinational infringement claim, when the root act of copying occurred in the U.S.." It is said that the U.S. law might be applied also to cases where “U.S. shores appear designed to be the ultimate designation of the foreign-made copies[70]. The concept of "cross-border infringement" or the notion of a single "integrated" act found in the arguments of Moufang which, in a sense, unifies infringing acts committed in different countries by the same defendant[71] might be of some help if one is going to analyse the problems in that direction.

For example, the following are ordered in Stac v. Microsoft: “Defendants are hereby [permanently] enjoined and restrained from making, using, or selling the Enjoined Products, and from causing any Enjoined Products to be made, used, or sold, or otherwise directly or indirectly infringing in any manner Stac's U.S. Patent.... [and] ordered immediately: ... to take all necessary and reasonable steps to recall, erase, or have destroyed, all Enjoined Products, worldwide, that have not yet been sold to end users; ...[72]." That is a typical example of a "worldwide injunction".

In addition to the jurisdictional problems which will be discussed later in this paper, a serious question of applicable law is posed here. In Stac v. Microsoft, the activities of the defendants in other countries were ordered by the court based on the infringement of the U.S. patent. However, that should be viewed as clearly against the traditional rule of the lex protectionis, because the U.S. patent cannot be infringed by activities in a foreign, non-U.S. country[73], apart from the possibilities of the so-called contributory infringements[74]. In other words, that portion of the judgment is against the traditional principle of territoriality. If such a comprehensive, worldwide injunction is rendered in the GII context, that would have a chilling effect on the further development of information superhighway[75].

In this context, the chilling effect or negative impact of the PLAYMEN case[76] would be quite similar to that of Stac v. Microsoft. The point in the PLAYMEN case is that the injunction awarded there on June 19, 1996, was based on a violation, on the side of the defendant, of a previous judgment rendered by the same court in 1981 (hereinafter referred to as "the 1981 Injunction[77]"). In other words, the PLAYMEN case was a case of civil contempt.

The following are the facts of the case: The plaintiff, Playboy Enterprises, Inc. (PEI), brought suit in the U.S. for injunctive relief against Tattilo in 1979 to enjoin the use of the name PLAYMEN. The 1981 Injunction enjoined the defendant, Tattilo, from publishing, printing, distributing or selling in the U.S. and importing into or exporting from the U.S. an English language male sophisticate magazine under the name "PLAYMEN". PEI was successful in enjoining the use of the PLAYMEN name in the courts of England, France and West Germany, but not in Italy. The publication of PLAYMEN in Italy continues to the present day. On approximately January 22, 1996, PEI discovered that Tattilo had created an Internet site featuring the PLAYMEN name. Tattilo created this site by uploading the images onto a World Wide Web server located in Italy. Anyone in the U.S. with access to the Internet has the capacity to browse the PLAYMEN Internet site, review, and obtain copies of PLAYMEN magazine.

In the PLAYMEN case of 1996, the U.S. court reaffirmed that "failure to comply with the court order need not be willful", and said as follows: “The primary issue before the Court is whether the Defendant distributed or sold the PLAYMEN magazine in the U.S. when it established an Internet site [in Italy] containing pictorial images under the PLAYMEN name[78]. ... The purpose behind the [1981] Injunction was to restrict the ability of Defendant to distribute its product in the U.S. .... Allowing the Defendant to contravene the clear intent of the [1981] Injunction by permitting it to distribute its pictorial images over the Internet would emasculate the [1981] Injunction[79]. ... [T]o support a finding of a violation ... such use must have been made in connection with a sale or distribution within the U.S.[80]. ... Here, Defendant does more than simply provide access to the Internet[81]. ... Defendant argues that it is merely posting pictorial images on a computer server in Italy, rather than distributing those images to anyone within the U.S.[82]. ... [However,] Defendant has actively solicited U.S. customers to its Internet site, and in doing so has distributed its product within the U.S.[83]. ...Tattilo cannot be prohibited from operating its Internet site merely because the site is accessible from within one country in which its product is banned. To hold otherwise ... would be tantamount to a declaration that this Court, and every other court throughout the world, may assert jurisdiction over all information providers on the global World Wide Web. ... The Internet deserves special protection.... However, this special attention does not extend to ignoring court orders and injunctions[84]. ... While this Court has neither the jurisdiction nor the desire to prohibit the creation of Internet sites around the globe, it may prohibit access to those sites in this country[85]."

However, the contents of the order of the U.S. court were as follows[86]: "Tattilo is required, within two weeks of the date of this Order, to: (1) either shut down its Internet site completely or refrain from accepting any new subscriptions from customers residing in the U.S.; (2) invalidating the user names and passwords to the Internet site previously purchased by U.S. customers; (3) refund to its U.S. customers the remaining unused portions of their subscriptions; (4) remit to PEI all gross profits earned from subscriptions to its Internet service by customers in the U.S.; (5) remit to PEI all gross profits earned from the sale of goods and services advertised on its PLAYMEN Internet service to customers in the U.S.; (6) revise its Internet site to indicate that all subscription requests from potential U.S. customers will be denied; and (7) remit to PEI its costs and attorney's fees incurred in making this application. If these conditions have not been met within the stated two-week period, Tattilo shall pay to PEI a fine of $1,000 each day thereafter until it fully complies with this Order."

In this case, the court order was based exclusively on the U.S. law. As stated before, it was a contempt case. Therefore, it seems that the court found no need to mention the applicable law. Rather, the whole problem seems to have been characterized as procedural on the level of conflict of laws. By the same token, the defendant's argument on personal or subject matter jurisdiction was rejected by the court, and the court said quite simply, "[T]his Court retained jurisdiction over Defendant for the purposes of enforcing the 1981 Injunction[87]."

This is a peculiar phenomenon to the U.S.. The problems of applicable law and jurisdiction were completely "bypassed", and there was a “meltdown" of conflict of laws problems in the depth of the U.S. judicial system[88]. The 1981 Injunction confined itself within the U.S., but in the 1996 Injunction the defendant was required, as an alternative, to shut down its Internet site located in Italy completely. The actual meaning of the 1996 Injunction in its totality might be to urge the defendant to choose this alternative. One should be allowed to ask, anyway, whether such an extraterritorial order can be based exclusively on the law of the forum. The court says: "While this Court has neither the jurisdiction nor the desire to prohibit the creation of Internet sites around the globe, it may prohibit access to those sites in this country." However, actually the court in the PLAYMEN case did something very serious beyond the prohibition of access in the U.S..

2. Jurisdiction In Civil Cases

(1) Peculiarity Of The English Model

In English practice there is a strong tendency of declining "jurisdiction over foreign intellectual property rights" based on the understanding that these rights are regarded "as strictly territorial[89]". The reasons for that are also said to be based, among others, on “the assimilation of intellectual property rights with immovable property[90]", and “the common law doctrine of double actionability" according to which "the adjudication of infringement suits relating to foreign intellectual property rights is prevented even when the plaintiff own [s] parallel rights in England and abroad[91]".

Fentiman seems to be willing to support the English practice on a different ground, although the double actionability rule, one of the reasons for such a negative attitude, was abolished in England by adopting the Private International Law (Miscellaneous Provisions) Act 1995[92]. On the one hand, he admits that there is "almost universal condemnation" of such a practice[93]. On the other hand, he states: "[T]he true vehicle for expressing any unease about foreign intellectual property claims is the doctrine of forum non conveniens[94]." He also states: "The English experience is instructive ... in so far as it discloses some fundamental questions about the very appropriateness of litigating intellectual property rights other than in the place of exploitation or infringement[95]".

Although similar solutions can be found sometimes in the practice of other countries[96], one thing which should be clarified here is that the principle of territoriality cannot be relied upon to deny jurisdiction in such cases. A judgment rendered by the Tokyo District Court in 1953[97] denied the plaintiff's claim for damages caused by the activities of the defendant in a foreign country alleged to be infringements of the plaintiff's patent in that country[98], but jurisdiction was accepted.

Fentiman's view is correct in so far as he cautions against too wide a range of jurisdiction over multinational copyright infringements. He states: “A proper weighing of the balance of convenience between such rival considerations [namely "the desirability of a claimant who is faced with multiple infringements in different countries being able to consolidate his claims in one court", on the one hand, and "the inappropriateness of such a case being tried there" or "the claims of another country's court to be the forum conveniens", on the other hand] is uniquely suited to the doctrine of forum non conveniens[99]."

However, as Fentiman admits, "the doctrine of forum non conveniens is a uniquely common law phenomenon[100]", and there are some questionable aspects of that doctrine from the Japanese perspectives[101]. To take some examples: "[T]he difficulty of proving and applying foreign law"[102] should not be included in the factors for the determination of jurisdiction. To consider "the risk that a ... judgment [of the forum country] would be unenforceable in the foreign courts whose law is being applied[103]" should be viewed as one of the features of “the lex cause theory"[104]. Problems of jurisdiction should be theoretically and practically “emancipated" from those of choice of law, and, therefore, such consideration as that mentioned by Fentiman should be removed from the factors for the determination of jurisdiction.

In Japanese practice, a proper weighing of interests of the parties and a due consideration of “nexus" to the forum country have guided the courts, in most of the cases, to very flexible and reasonable solutions of jurisdictional problems in civil cases[105]. Fentiman's fear can be shared by the Japanese courts, on a case-by-case basis, within the conventional framework of international civil procedure law, but without relying on the doctrine of forum non conveniens. Although Fentiman's argument about the "curial resources[106]" seems to be the basis of his reluctance in admitting jurisdiction over foreign infringements[107], it would be reasonable to accept jurisdiction even over foreign copyright infringements in cases where the nexus to the forum country is sufficient and the center of gravity of the activities of both parties is clearly located in the forum country. In other cases, details of the factual aspects of each case will show the proper answer. One should be patient, as in other situations, to the accumulation of relevant cases, and should not jump up to setting plausible rules as if one were a legislator[108].

(2) Cross-Border Injunctions Especially As Interim Measures

Even if one accepts, in this way, the view that the adjudication of foreign copyright infringements is in principle admissible, a more specific objection might be raised against cross-border injunctions[109], because the main target of such remedies is enjoining (future) activities in foreign countries. According to the view of the present author, issues of damages and those of injunctions should be treated separately for the purpose of determining jurisdiction in such cases[110]. If one considers the inherently decisive foreign elements of such injunctions, and also considers a (possible) chilling effect especially in the context of the GII, one should be very cautious in rendering an order enjoining foreign activities, except in cases where the center of gravity of the relevant activities of both parties is clearly located in the forum country[111].

As Moufang states, “[t]he high attention currently paid in Europe to the problem of extraterritorial injunctions is due to a number of recent decisions of the Dutch courts[112]." Main concerns in the said debates are injunctions rendered as provisional measures[113]. He analyses the problem mainly within the framework of Brussels Convention[114], but in the Netherlands some courts have rendered cross-border injunctions which enjoin the activities even in countries "outside Europe[115]".

It is quite natural that "a more cautious approach is being advocated by many observers[116]" regarding the above-mentioned Dutch practice. There are arguments also in Japan according to which jurisdiction over interim measures should be treated separately from that for the merits of the case, and the former may be allowed rather extensively[117]. Such arguments should not be followed, especially in the GII context[118].

3. Recognition And Enforcement Of Foreign Judgments

As Fentiman states, "even if a claimant sues successfully for infringement in one country, this may be irrelevant if the place of exploitation is elsewhere[119]", because there remains the problems of recognition and enforcement of foreign judgments[120]. Customary international law says nothing about these problems[121]. Therefore, these are solved by conventional conflicts rules of the recognizing country, if there is no treaty between the rendering state and the recognizing state. If Japan is the recognizing country, art. 118 of Civil Procedure Law as amended in 1996 (former art. 200 of that Law) and art. 24 of Civil Enforcement Law are applied.

Major problems posed by international copyright infringements would be recognition and enforcement of foreign injunctions, whether the relevant claims originate in cyberspace or in the real world. In this respect as well, one must distinguish between civil matters and non-civil matters, because, on the one hand, the above-mentioned articles are applicable in Japan only to civil matters[122], and, on the other hand, there are various types of injunctions, especially in common law countries[123]. One must be very cautious about the fact that there are different understandings between common law countries and civil law countries with regard to the distinction of civil and non-civil matters. The intrinsic character or function of the relevant legal institution which forms the basis of a foreign judgment is decisive at least in Japan, although there is a tendency in common law countries, according to which, if the civil procedure law is applied in deciding the case, then the matter is regarded as civil[124].

In the PLAYMEN case of 1996[125], payment of money was ordered as remittance, refund and "a fine", together with the prohibition of certain activities. The fact that the fine of $1,000 per day was ordered to be paid to a private party, PEI, should be seen, from the Japanese perspectives, as a symbolic example of the intermingling of civil and non-civil matters in common law countries[126]. At first sight, if the defendant were a Japanese company and the Internet site at issue were located in Japan, this U.S. injunction might be seen as eligible for recognition and enforcement in Japan. However, the answer of the present author is negative. This was a case of contempt and, therefore, the problems of jurisdiction and applicable law were clearly “bypassed"[127] by the U.S. court and the U.S. plaintiff. Even if the payment is ordered to be made to a private person, the intrinsic character or function of the legal institution of contempt in its totality, therefore including the portion of the prohibition of activities in Japan, should be viewed as decisive in rejecting, in the above-mentioned hypothetical case, its recognition and enforcement in Japan[128].

If a foreign injunctive order is categorized as "civil" in the recognizing country[129], it is eligible for recognition and enforcement. However, jurisdiction of the rendering country[130] would be questioned if the foreign injunction comprehensively prohibits (future) activities the center of gravity of which is clearly located in the recognizing country. At the same time, under the above-mentioned situation, the problem of public policy[131] might occur in some cases[132]. Intellectual property law has certain inherent implications for competition and/or industrial policy[133], even in the case of copyright law, especially when one thinks of software protection. According to the understanding of the present author, such concerns might be reflected in deciding the recognition and enforcement of foreign injunctions rendered as remedies for copyright infringements.

4. Extraterritoriality And The Doctrine Of State Jurisdiction

In non-civil matters[134], extraterritorial application of national laws may sometimes pose problems. In particular, “excessive" extraterritorial application of U.S. laws has been the target of serious concerns on the Japanese side[135].

However, according to the understanding of the present author, the problems of extraterritoriality in cyberspace would be the same as those in the real world, because phenomena in cyberspace are only the triggers of such an application. The problems of extraterritoriality are some of the features of the doctrine of state jurisdiction[136]. It would be rather suitable to note here just one point: Suppose a case where an official of a foreign government or his nominee has actually removed from the Japanese territory, over the telecommunication networks or by using other means, a decryption key deposited in a Japanese key management system (or its copy) without the consent of the Japanese government. That should be viewed as a clear infringement of the Japanese sovereignty, or, in other words, the use of a sovereign power by the foreign country within the territory of Japan[137]. That would be one of the features of “cross-border lawful access[138]", and the present author hopes that such a problem will remain in the imaginary world.

Part III: Conclusion

It is quite understandable that not a few people regard the traditional framework of conflict of laws as insufficient and useless, in particular in the context of the GII. However, the attempts to establish a new system seem to be much more insufficient than the conventional system of conflict of laws. The phenomena in cyberspace can and should be treated by the latter, so does the present author believe. The latter should be viewed as the fruits of scholarly research over centuries, or even a "crystal" of our historical wisdom, even if it appears to be too fragile at first sight[139].

There are arguments about international copyright infringements according to which right-holders should be protected as strongly as possible. However, a well-balanced approach should be needed also here as in the discussions about the very reason for the exclusiveness of intellectual property rights[140].


  1. See Kazunori Ishiguro, Chou-Kousoku Tsuushin Network--Sono Kouchiku heno Yume to Senryaku [Dreams and Strategies for the Information Superhighway in U.S. & Japan and the World Telecom-Regime], at 91ff (1994 NTT Publishing Co.,Ltd.).

  2. See D.R.Johnson & David Post, "Law and Borders--The Rise of Law in Cyberspace", 48 Stanford Law Review, at 1367 (1996); M.R.Burnstein, "Notes: Conflicts on the Net: Choice of Law in Transnational Cyberspace", 29 Vanderbilt Journal of Transnational Law, at 75ff (1996).

  3. Concerning the skeptical remarks on the suitability of the traditional frameworks of conflict of laws see P.E. Geller, "Conflict of Laws in Cyberspace: Rethinking International Copyright", 44 Journal of the Copyright Society of the U.S.A., at 104 (1997) (hereinafter referred to as "Geller [1997]"); Burnstein, supra note 2, at 75, 83, 92ff; P.E.Geller, "Conflict of Laws in Cyberspace: Rethinking International Copyright in a Digitally Networked World", 20 Columbia-VLA Journal of Law & The Arts, at 573f (1996) (hereinafter referred to as "Geller [1996]"). See also R. Fentiman, "Conflict of Laws in Cyberspace"[paper submitted to the Symposium: “Multimedia and the Internet: Global Challenges for Law", organized by International Federation of Computer Law Associations, The Computer Law Association, Inc., and Belgian Association for Computer & Law, held in Brussels: June 27-28, 1996], at 4f. According to the view of Fentiman, however, "in the conflicts context, the true impact of the information revolution is not so much that it creates new problems, but that it brings old ones into sharp relief", and the challenge arises not because the problems which now face us are different in kind from those which existed before...[but] different in degree...." (Id. at 1.)

    Concerning the need of reconsideration of the principle of territoriality in copyright protection see Johnson & Post, supra note 2, at 1383ff; Geller[1996], supra note 2, at 595, 602; J.C.Ginsburg, "Global Use, Territorial Rights, Private International Law Questions of the Global Information Infrastructure" [paper submitted to WIPO Worldwide Symposium on Copyright in the Global Information Infrastructure, organized by WIPO, held in Mexico City: May 22-24, 1995], at 383. Johnson & Post (supra note 2) shows perhaps one of the most radical views and states as follows: "Cyberspace requires a system of rules quite different from the laws that regulate physical, geographically-defined territories." (Id. at 1367.); "We believe the Net can develop its own effective legal institutions." (Id. at 1387.) Compare this line of discussions with Fentiman, supra note 3, at 3 (“self-help" of right-holders), 6ff ("a market solution"). Fentiman is quite correct in stating: "It is an arresting myth that the digital era signals the end of conventional legal regulation. ... [F]rom the perspective of the conflict of laws, it does not pose new problems, so much as exasperate and illuminate old ones." (Id. at 10.)

  4. See Geller[1996], supra note 3, at 574, 576ff(functional analysis); Geller [1997], supra note 3, at 104ff(functional analysis), 107ff(principles of preference).

  5. See Kazunori Ishiguro, Gendai Kokusai-Shihou [Jou] [Modern Conflict of Laws in Japan, Vol. 1], at 60ff (1986 Tokyo Univ. Press); -----, Kokusai-Shihou [Conflict of Laws], at 61ff (1996 Shinsei-sha).

  6. See -----, "Trade Secret to Kokkyou [Cross-border Problems on Trade Secret]", in: Ono Shouen Kanreki-Kinen, Hanrei Husei-Kyougyouhou [Essays for The Sixtieth Birthday of Shouen Ono: Cases on Unfair Competition Law] (1992 Hatsumei Kyoukai), at 855ff; Kazunori Ishiguro, Kokusai Minji Soshouhou [International Civil Procedure], at 222f, 244 (1996 Shinsei-sha).

  7. Stack Electronics v. Microsoft Corporation, U.S. District Court, Central District of California, No. CV 93-413 ER(Bx): Permanent Injunction, Filed on June 8, 1994. See Computer Industry LR, at 18,785(June 16, 1994).

  8. See Kazunori Ishiguro, "Ji-Sedai Jouhou Tsuushin Kiban to Chiteki Zaisanken [Intellectual Property Rights and the Information Superhighway]", Boueki to Kanzei [Trade Journal] (February 1995), at 45. (This paper is a Japanese translation of the one submitted to Session 3 [Protection of Intellectual Property] of the Ad Hoc Meeting of Experts on Information Infrastructure, held at the OECD, Paris: November 30 - December 2, 1994.)

  9. Playboy Enterprises, Inc., v. Chuckleberry Publishing, Inc., Tattilo Editrice, S.p.A., Publishers Distributing Corporation, and Arcata Publications Group, Inc., 79 Civ. 3525 (SAS), U.S. District Court for the Southern District of New York, 1996 U.S. Dist. LEXIS 8435, Filed on June 19, 1996. (Hereinafter referred to as the PLAYMEN case.)

  10. Ginsburg, supra note 3, at 383. (The underline added by the present author.)

  11. Fentiman, supra note 3, at 1.

  12. On the comprehensive analysis to the conflict-of-laws problems on the international pollution of the Rhine, mainly on the "Schweizerhalle" case of 1986, see Kazunori Ishiguro, Kokkyou wo Koeru Kankyou Osen [Schweizerhalle und die internationale Verunreinigung des Rheins], at 75ff (1991 Bokutaku-sha).

  13. Ginsburg, supra note 3, at 383.

  14. Fentiman, supra note 3, at 2.

  15. See generally, Ishiguro, Kokusai-Shihou, supra note 5 , at 223ff, and in details, including comparative law aspects, see -----, Kokusai Minji Hunsou Shori no Shinsou [International Civil Litigations in Japan], at 213ff (1992 Nihon Hyouron-sha).

  16. Ginsburg, supra note 3, at 383.

  17. Burnstein, supra note 2, at 81f. However, in the real world, recent U.S. cases on personal jurisdiction concerning the Internet are found, beyond any doubt, to be within the conventional framework of conflict of laws as it is in the U.S.. See Peter Brown, "US Courts Use Internet to Assert Jurisdiction Over Foreign Defendants", Law Journal Extra!, at 1ff (January/February 1997); Lori Irish Bauman, "Personal Jurisdiction and Internet Advertising", 14 The Computer Lawyer, at 1ff (January 1997).

  18. Burnstein, supra note 2, at 87ff. The present author must comment beforehand on some insufficiency in Burnstein's analysis. He confesses that deep discussions on personal jurisdiction in cyberspace and even the doctrine of "forum non conveniens" are "beyond the scope of this Note." (Id. at 88.) By the same token, he jumps up suddenly to a “New Choice of Law Regime" (id., at 89), but actually relies on the traditional "admiralty law" approach. (Id. at 90.) He states: "In transnational cyberspace ... the place of wrong might be any of the 145-plus nations that are on line. More accurately, there is no lex loci delicti", referring to an article, the target of which is the problems in “Outer Space". (Id. at 93.) Although it is true that not a few problems will be posed if the lex loci delicti rule is applied rigidly and mechanically, as seen in the pre-revolution age in the U.S. conflict of laws especially in the cases of traffic accidents (see Ishiguro, Gendai Kokusai-Shihou [Jou], supra note 5, at 63ff, 74ff), there appears no justification for simply identifying cyberspace with outer space. See also Burnstein, supra note 2, at 110f.

  19. Id. (Burnstein), at 95.

  20. Id. at 103ff.

  21. Id. at 97ff. He refers there to the cyber-domicile concept.

  22. Id. at 107f. He states: "A balancing approach, like that in Lauritzen [345 U.S. 571(1953)], relieves parties of a mechanical approach to choice of law methodology." (Burnstein, supra note 2, at 107.) Although it is true and theoretically correct, as Lauritzen teaches us, that "the flag is only one relevant point of contact in the balancing scheme" (ibid.), one should not forget that the same balancing can and should be made within the "traditional", namely the Savigny-type (see Geller[1996], supra note 3, at 574ff), framework of conflict of laws. See generally Ishiguro, Kokusai-Shihou, supra note 5, at 64ff. In details see -----, Gendai Kokusai-Shihou [Jou], supra note 5, at 85ff.

  23. Burnstein, supra note 2, at 108ff.

  24. He actually admits the difficulties in "line-drawing" between "cyber-disputes" and non-cyber-disputes. See id. at 92.

  25. Babcock v. Jackson, 12 N.Y. 2d 473, 240 N.Y.S. 2d 743, 191 N.E. 2d 279 (1963). See Ishiguro, Gendai Kokusai-Shihou [Jou], supra note 5, at 77ff.

  26. Geller[1996], supra note 3, at 574.

  27. See Ishiguro, Gendai Kokusai-Shihou [Jou], supra note 5, at 68f; -----, Kokusai-Shihou, supra note 5, at 64ff.

  28. Geller[1996], supra note 3, at 576ff. Id. at 577 (fn. 24) refers to the name of von Mehren, but only as a co-editor of a book published in 1961.

  29. -----[1997], supra note 3, at 104ff.

  30. Id. at 103f, 106f; -----[1996], supra note 3, at 571, 578ff.

  31. -----[1996], supra note 3, at 571; -----[1997], supra note 3, at 103f.

  32. See e.g. -----[1996], at 578, 580.

  33. Id. at 580.

  34. Geller often refers to Currie's theory within the framework of functional analysis. See id. at 576ff. According to the view of the present author, that is a bit misleading way of discussion, if one considers the delicate differences of each revolutionary theory in the U.S.. (See Ishiguro, Gendai Kokusai-Shihou [Jou], supra note 5, at 63ff.) See, for example, fn. 23 of Geller[1996], supra note 3, at 577, where, if compared with its text on the same page, a very curious mixture of the theory of Currie and that of Cavers is alleged to be that of Currie. At least the statement in the above-mentioned text is very misleading.

  35. Id. at 581.

  36. Id. at 599. See also -----[1997], supra note 3, at 114. Geller confines the application of the most protective copyright law to cases where "any showing that countervailing public policies dictate a different choice of law" is absent, but he is not successful in clarifying such policies. See -----[1996], supra note 3, at 602.

  37. He also states that "freedom of contract", namely the party autonomy, should be viewed in general as “the principle of preference for contract." (-----[1997], at 110.) However, it is needless to mention the principle there, because the party autonomy belongs to the traditional system of conflict of laws.

  38. -----[1996], at 598.

  39. -----[1997], supra note 3, at 113.

  40. Id. at 114; -----[1996], supra note 3, at 599.

  41. -----[1996], supra note 3, at 595. See also id. at 580f.

  42. Id. at 602; -----[1997], supra note 3, at 117.

  43. Consider, for example, a case of cross-complaint or an international class-action-type litigation. At first sight, to apply the most protective or the most favorable law seems to be a simple solution, but in reality it may bring about additional burdens to the court proceedings. See generally Ishiguro, Kokusai-Shihou, supra note 5, at 286, 329. In details see -----, supra note 12, at 117ff. If the so-called “issue approach", namely one of the features of the U.S. revolutionary approaches in which the applicable law should be chosen separately for each "issue", is adopted, the choice-of-law process will become more and more complicated. See -----, Gendai Kokusai-Shihou [Jou], supra note 5, at 62f, 94f, 120f.

  44. Fentiman, supra note 3, at 17.

  45. Geller[1996], supra note 3, at 603.

  46. See Lea Brilmayer, Conflict of Laws, at 183ff (Second ed. 1995 Little, Brown and Company).

  47. See Ishiguro, Kokusai-Shihou, supra note 5, at 64. On the "imaginary" nature of governmental interests in the U.S. revolutionary theories on conflict of laws, as compared with "real" governmental interests which should be taken into account in analysing extraterritorial application of national laws, see -----, Kokusai Minji Soshouhou, supra note 6, at 21f; -----, Gendai Kokusai-Shihou [Jou], supra note 5, at 197; Andreas F. Lowenfeld, "Public Law in the International Arena: Conflict of Laws, International Law, and Some Suggestions for Their Interaction", 163 Recueil des cours, 1979 II, at 335(1980). On the very drawback of the U.S. revolutions on conflict of laws, namely the difficulties in analysing policy implications or governmental interests which can be found also in Babcock v. Jackson (see supra note 25), see Ishiguro, Gendai Kokusai-Shihou [Jou], supra note 5, at 77ff.

  48. See generally Ishiguro, Kokusai-Shihou, supra note 5, at 163ff.

  49. See id. at 31, 63, 185ff, 222; -----, supra note 12, at 114, 130ff.

  50. See generally -----, Kokusai-Shihou, supra note 5, at 286, 263ff. On the applicability of mandatory rules of the otherwise applicable law, of the forum country and of third countries, see id. at 46ff, 85ff, 265ff. See also Fentiman, supra note 3, at 3(right-holders' attempts to override the law of the place of exploitation [the lex protectionis] by a contractual agreement that another law - typically that of origination [the lex originis] - should be applied), 4, 7f(applicability of [mandatory] intellectual property rules of a country whose law would otherwise apply), 25ff(contractual modification and choice of law).

  51. See generally Ishiguro, Kokusai-Shihou, supra note 5, at 284ff; -----, supra note 12, at 117ff. See also Fentiman, supra note 3, at 6("[I]nfringements may be effected other than by licensees."), 23(the lex loci delicti).

  52. See Fentiman, supra note 3, at 21. It is true that "[t]he private international law aspects of the information revolution are seldom addressed squarely in the growing literature in this area." (Id. at 31 [n.1].) Often found are rather elementary remarks on these aspects which would not be seen as sufficient for the present purpose. See, for example, Birgit Bachmann, Internet und IPR, in: Michael Lehmann (Hrsg.), Internet- und Multimediarecht (CyberLaw), 169ff (1997 Schaeffer-Poeschel Verlag); Henry H.Perritt, Jr., "Jurisdiction in Cyberspace: The Role of Intermediaries", in: Brian Kahin and Charles Nesson (eds.), Borders in Cyberspace, at 168ff, 175ff (1997 The MIT Press).

  53. Commission of the European Communities, Green Paper: Copyright and Related Rights in the Information Society, COM(95) 382 final (Brussels, 19.7.1995), at 38 (Part I: General Questions, Section I: Applicable Law); Ginsburg, supra note 3, at 386.

  54. As Fentiman (supra note 3, at 3) states, "[T]his follows ... from the principle of national treatment which underpins the international protection of intellectual property. See also id. at 19ff(national treatment and choice of law), especially at 23ff; Geller[1996], supra note 3, at 579, 595; Ginsburg, supra note 3, at 395; Ishiguro, Jouhou Tsuushin, Chiteki Zaisanken heno Kokusaiteki Shiten [International Perspectives over Information, Telecommunication & Intellectual Property Rights], at 60ff (especially at 64 fn.24), 206 (1990 Kokusai Shoin). There is an argument according to which “article 5(2) of the Berne Convention does not in fact mandate application of the law of the country ... where protection is sought", but rather the forum law is applicable. As Ginsburg (supra note 3, at 401f) states, such an argument is questionable because there would be problems of “forum shopping" and the “remoteness" of the forum law from the factual aspects of each case.

  55. Commission of the European Communities, supra note 53, at 41. However, the Green Paper states that "[f]or transmissions coming into the Community from outside, other mechanism must be considered, or at least safeguard clauses to ensure the protection of rights of authors and the holders of related rights." (Id. at 42.)

  56. Council Directive 93/83EEC of September 27, 1993, O.J.E.C. L 248/15., art. 1.(2)(b).

  57. Ginsburg, supra note 3, at 383; Fentiman, supra note 3, at 3, 8.

  58. Fentiman, supra note 3, at 9. See also Ginsburg, supra note 3, at 401("[D]esignation of such a rule [of the lex originis] goes against a hundred-plus year tradition of the Berne Convention."). Fentiman argues that the lex originis is "unlikely to be applicable to foreign infringements" because of "the limits which the country concerned is likely to impose on the application of its laws." (Fentiman, supra note 3, at 9. Underlines added by the present author.) However, this argument stems from the peculiar English precedents on foreign infringement cases discussed later in this paper. He asks: "[S]hould national copyright law be given extra-territorial effect?" (Ibid. See also Ginsburg, supra note 3, at 398.) However, the problems of extraterritorial application of national laws lie in non-private law areas only, according to the understanding of the present author, because in private law areas, to which most of the rules on copyright law belong, public international law does not limit the international reach of each country's law. (See Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 13.) Therefore, it would be theoretically misleading to use the word of extraterritorial application in private law areas, apart from a metaphorical way of expression. See -----, supra note 54, at 57 (a “hidden" extraterritorial application of the U.S. copyright law to the IBM v. Hitachi case). See also infra note 73.

  59. Geller[1997], supra note 3, at 112. See also Ginsburg, supra note 3, at 396, 401.

  60. Ginsburg, supra note 3, at 386. See also id. at 400f; Geller[1997], supra note 3, at 112.

  61. Geller[1997], supra note 3, at 112.

  62. Fentiman, supra note 3, at 3, 9.

  63. See Jan Kropholler, Europaeisches Zivilprozessrecht, at 39ff, 263ff (4. Aufl. 1993 Verlag Recht und Wirtschaft).

  64. Fentiman, supra note 3, at 4.

  65. Ginsburg, supra note 3, at 402. (The underline added by the present author.)

  66. Ibid.

  67. Id. at 386.

  68. Fentiman, supra note 3, at 27, 23.

  69. Id. at 10, 25, 30. (Fentiman's argument about the use of the doctrine of forum non conveniens will be discussed later in this paper.) Concerning the relation between conflict of laws of the forum country and treaties which harmonize material laws see Ishiguro, Kokusai-Shihou, supra note 3, at 103ff.

  70. Ginsburg, supra note 3, at 399f.

  71. Reiner Moufang, "Adjudicating Infringement Suits Relating to Foreign Patents - A European Perspective -" [paper submitted to the International Symposium on Intellectual Property and the Management of International Disputes, organized by Kyushu University, held in Fukuoka: September 12-14, 1996], at 114f. However, only the jurisdictional problems are dealt with there by Moufang, and his view is rather skeptical about such a concept or notion within the framework of the Brussels Convention..

  72. See supra note 7. (Underlines added by the present author.)

  73. See Moufang, supra note 71, at 113. In IBM v. Hitachi, a case of international concurrent litigations between the U.S. and Japan, both of which were settled outside the court proceedings, the IBM's claims on copyright were alleged to be based on Hitachi's activities mainly in Japan which infringed the U.S. copyright owned by IBM. See Ishiguro, Kokusaiteki Soukoku no Naka no Kokka to Kigyou [States and Corporations in International Antagonism], at 192f (1988 Bokutaku-sha) ; -----, supra note 54, at 57ff; -----, Kokusai Minji Hunsou Shori no Shinsou, supra note 15, at 101f. See supra note 58.

  74. See -----, "Tokkyoken Tou no Shiyou ni Kanren-suru Kokusaiteki Shiharai to Nihon no Gensen Kazei [Ge] [The Japanese Withholding Taxation and International Payments Relating to the Exploitation of Patents and Like Rights: Part II]", Boueki to Kanzei (March 1994), at 49f. But see Moufang, supra note 71, at 114.

  75. See supra note 8.

  76. See supra note 9.

  77. Playboy Enters., Inc. v. Chuckleberry Publishing, Inc., 687 F.2d 563 (2d Cir. 1982).

  78. 1996 U.S. Dist. LEXIS 8435, at *9. (Underlines hereinafter added by the present author.)

  79. Id. at *13f.

  80. Id. at *16f.

  81. Id. at *20.

  82. Id. at *21.

  83. Id. at *21.

  84. Id. at *22f.

  85. Id. at *23.

  86. Id. at *27f.

  87. Id. at *9, fn.4.

  88. Such a phenomenon can be found also in other contexts. With regard to a recent Japanese case in which the recognition and enforcement of a U.S. judgment on child custody was rejected, see Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 240f (n.656).

  89. Fentiman, supra note 3, at 11. (The Underline added by the present author.) See also id. at 14; Moufang, supra note 71, at 104f; Lawrence Collins et al. (eds.), Dicey and Morris on Conflict of Laws, at 1516 (12th ed. 1993).

  90. Moufang, supra note 71, at 118.

  91. Id. at 119. On other grounds see Fentiman, supra note 3, at 14(some "sovereign" concerns and the "lack of competence to determine such complex issues of foreign law").

  92. Moufang, supra note 71, at 120. Concerning the relevant articles see Jason Chuah, Statutes and Conventions on Private International Law, at 290ff (1996 Cavendish Publishing Limited).

  93. Fentiman, supra note 3, at 14f.

  94. Id. at 15.

  95. Id. at 14.

  96. Id. at 13; Moufang, supra note 71, at 104(pre-war case law in Germany).

  97. The judgment of Tokyo District Court rendered on June 12, 1953, Ka-Minshuu Vol.4 No.6, at 847ff. See Ishiguro, supra note 54, at 202ff.

  98. The court interpreted Article 11 (2) of Hourei, the Japanese statute on the choice of law problems, in a similar way to the double actionability rule in England. That point has been almost unanimously criticized by the commentators. See Ishiguro, supra note 54, at 206f.

  99. Fentiman, supra note 3, at 15.

  100. Ibid. See also, Collins et al. (eds.), supra note 89, at 317f, 397ff.

  101. See Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 141ff, 187 (n.454), 188f (n.467).

  102. Fentiman, supra note 3, at 15.

  103. Ibid.

  104. In details see Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 99ff. See also -----, Kokusai-Shihou to Kokusai Minji Soshouhou tono Kousaku [The Antagonizm between Private International Law And The Law of International Civil Procedure], at 199ff (1988 Yuushin-dou Koubun-sha).

  105. In details see -----, Kokusai Minji Soshouhou, supra note 6, at 133ff, 255ff.

  106. Fentiman, supra note 3, at 2f.

  107. Compare Fentiman's argument with that of Prof. Akira Mikazuki criticized in: Ishiguro, Kokusai Minji Hunsou Shori no Shinsou, supra note 15, at 216ff; -----, Kokusai Shihou, supra note 5, at 223ff.

  108. See -----, Kokusai Minji Soshouhou, supra note 6, at 134, 181 (n.421).

  109. See Moufang, supra note 71, at 111.

  110. Compare the text corresponding to this note with Ishiguro, in: Ono Shouen Kanreki-Kinen, supra note 6, at 868 and -----, Kokusai Minji Soshouhou, supra note 6, at 222f..

  111. See the text in the paragraph which follows note 98, supra.

  112. Moufang, supra note 71, at 102. See also Charles E. Miller and Bart J. van den Broek, "Netherlands Courts Allow Patent Owners to Obtain Cross-Border Injunctions, Sparing Owners the Necessity of Initiating Multiple Infringement Proceedings", Law Journal Extra!, at 1ff (The National Law Journal [p.B04]: January 13, 1996). Moufang also uses the word "cross-border injunction" (id. at 103), and that would be better as a terminology. See supra note 58.

  113. See Id. at 103, 115f; Miller and van den Broek, supra note 112, at 1, 4(n.4).

  114. Moufang, supra note 71, at 106ff.

  115. Id. at 116.

  116. Ibid. See also Miller and van den Broek, supra note 112, at 5 (n.18). However, Moufang seems to be a bit sympathetic to the Dutch practice. See Moufang, supra note 71, at 105f, 120.

  117. See Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 184f (n.445). See also Fentiman, supra note 3, at 17.

  118. See the text corresponding to note 44, supra.

  119. Fentiman, supra note 3, at 4. See also the text corresponding to note 62, supra.

  120. See Ginsburg, supra note 3, at 385. In details see Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 211ff; -----, Gendai Kokusai-Shihou [Jou], supra note 5, at 380ff.

  121. -----, Kokusai Minji Soshouhou, supra note 6, at 48, 212.

  122. Id. at 8ff, 218ff.

  123. See -----, Gendai Kokusai-Shihou [Jou], supra note 5, at 466 (n.290).

  124. -----, Kokusai Minji Soshouhou, supra note 6, at 8f, 31, 65, 94 (n.260).

  125. See the text corresponding to note 86, supra.

  126. See supra note 124. In details see -----, Gendai Kokusai-Shihou [Jou], supra note 5, at 497ff (recognition and enforcement of a foreign judgment which awards multiple or punitive damages as distinct from actual damages, or the so--called claw-back [negative]); -----, Borderless Economy heno Houteki Shiza [A Warning Concerning The Emerging Borderless Economy Vol.II], at 155ff (A theoretical boundary which separates recognition and enforcement of foreign judgments in "civil" matters from "Kyoujo [international assistance]" between authorities of relevant countries in "non-civil" matters) (1992 Chuuou Keizai-sha).

  127. See the text in the paragraph which follows note 87, supra.

  128. See -----, Gendai Kokusai-Shihou [Jou], supra note 5, at 466 (n.290), 510; -----, in: Ono Shouen Kanreki-Kinen, supra note 6, at 869. Compare the text with the present author's arguments about the Mansei Kougyou case where the recognition and enforcement of a California judgment which awarded punitive damages was at issue. (See -----, Borderless Economy heno Houteki Shiza, supra note 126, at 133ff; -----, Kokusai Minji Soshouhou, supra note 6, at 9f, 218ff. See also supra note 126.) In the Mansei Kougyou case (the judgment of Tokyo District Court rendered on February 18, 1991, Hanrei Jihou No. 1376, at 79ff; the judgment of Tokyo High Court rendered on June 28, 1993, Hanrei Times No. 823, at 126ff; the judgment of the Supreme Court rendered on July 11, 1997, Saibansho Jihou No. 1199, at 8f), recognition and enforcement of the portion of punitive damages in the California judgment was rejected throughout the instances. The Supreme Court referred only to the public policy clause in art. 200 (after the amendment mentioned above in the text: art.118) of Civil Procedure Law as the basis of the rejection. However, that should be viewed as insufficient. The judgment of Tokyo High Court had, inter alia, correctly questioned the civil nature of that portion of the California judgment.

  129. The review of whether the matter is civil or non-civil is outside the scope of art. 24 (2) of Civil Enforcement Law which prescribes the prohibition of "révision au fond". See Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 9, 42ff, 86 (n.176), 241 (n.658); -----, in: Ono Shouen Kanreki-Kinen, supra note 6, at 862, 868f.

  130. See art. 118 No.1 of Civil Procedure Law.

  131. See art. 118 No.3 of Civil Procedure Law.

  132. See -----, in: Ono Shouen Kanreki-Kinen, supra note 6, at 868; -----, Kokusai Minji Soshouhou, supra note 6, at 244 (n.688).

  133. See supra note 132.

  134. See supra notes 47 and 58.

  135. See Industrial Structure Council, Japan, 1997 Report on the WTO Consistency of Trade Policies by Major Trading Partners, at 270ff (1997 MITI); Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 20ff, 29ff, 32f.

  136. On the details of the doctrine of state jurisdiction see Ishiguro, Kokusai Minji Soshouhou, supra note 6, at 13ff.

  137. See Id. at 42, 85 (n.163).

  138. See -----, Sekai Jouhou Tsuushin Kiban no Kouchiku: Kokka, Angou, Denshi-Money [Toward The Establishment of Global Information Infrastructure: Sovereign States, Encryption & Electronic Money], at 227ff (1997 NTT Publishing Co., Ltd.).

  139. See -----, Kokusai-Shihou, supra note 5, at 65f.

  140. See -----, supra note 8, at 44ff.


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