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Jurisdiction: Building Confidence in a Borderless Medium

1999 Annual Conference
Summary of Proceedings

Jack Goldsmith

The theme of the Internet Law & Policy Forum's 1999 Conference, held in Montreal on July 26, 1999, was Jurisdiction: Building Confidence in a Borderless Medium. As the Federal Trade Commission's Chairman, Robert Pitofsky, said at the Conference, jurisdictional issues "are the most important set of issues that have to be worked out for Internet commerce to thrive."1 Unfortunately, as the Assistant Director General and Legal Counsel of WIPO, Francis Gurry, noted, "conflicts of law and jurisdictional questions are the most complicated for lawyers, let alone consumers."2

The purpose of the two-day conference was to add focus and clarity to a very complex set of legal and policy issues regarding jurisdiction over cross-border, commercial electronic communications and transactions. To that end, the ILPF conference gathered over fifty speakers from around the world, including experts from government, business, academia, and Internet interest groups. This summary of the proceedings divides into three parts. Part I outlines the legal and policy issues faced by government, businesses offering e-commerce services, and consumers. Part II summarizes solutions to the issues identified in Part I. Part III recounts lessons learned from the Conference, as well as future directions and challenges.

A. ISSUES

1. Background

The Internet has the potential to transform transnational commerce. It makes it easy for large and small businesses alike to communicate, contract, and in some cases even deliver products and services around the world quickly and inexpensively.3 Consumers, both business and individual, can reap the rewards of more choices and lower costs. But the promise of e-commerce is accompanied by a magnification of the uncertainties that typically inhere in cross-border trade. Because Internet transactions are inherently global, they potentially implicate many different national regulations. Governments want to apply their regulations to Internet transactions involving citizens and other persons in their territory. But the specter of many nations simultaneously regulating commercial transactions on the Internet constitutes a potentially significant cost to Internet vendors. Consumers are in the middle, potentially harmed by both too much and too little government regulation of e-commerce.

In legal terms, these issues raise a jurisdictional conundrum. The concept of jurisdiction subsumes three related ideas.4 The first is prescriptive jurisdiction, or what American lawyers call choice of law. Prescriptive jurisdiction is the power of a sovereign to apply its laws to a particular dispute. The second is adjudicative, or personal, jurisdiction. Adjudicative jurisdiction is a court's power to render a judgment against a party. Finally, enforcement jurisdiction is the sovereign's ability to execute its decisions. Enforcement jurisdiction includes the power to enforce a judicial judgment in the country where the decision was issued or in a foreign country.

Traditionally, all three aspects of a nation's jurisdictional authority were limited territorially. But in modern times "the territorial concept of sovereignty and jurisdiction has become elastic," making it possible for a nation to apply its law to extraterritorial activities, to assert personal jurisdiction over out-of-state parties, and to apply its enforcement resources even though major aspects of a dispute occur outside its territory.5 The "extraterritorial" application of a sovereign's rules to activities and parties outside the jurisdiction is the subject of great complexity.

These basic principles play out differently in different legal cultures.6 In the Anglo-American tradition, these principles tend to be judge-made rather than codified, they tend to be couched in terms of vague, unpredictable standards rather than determinant rules, and they tend to be interpreted, especially in the United States, to permit the broad assertion of jurisdiction over foreign transactions.7 By contrast, continental European countries tend to codify their jurisdictional principles in national statutes and international treaties, and these principles tend to be more determinant and rule-like than in the Anglo-American tradition.8 Japanese law is consonant with the Continental approach, evidencing a preference in favor of determinant jurisdictional rules and against broad assertions of extraterritorial jurisdiction.9

It is against this legal background that the challenges of jurisdiction for government, business, and consumers were addressed.

2.Government

Governments have competing concerns with respect to Internet regulation. They want to promote the enormous potential of the Internet, and they want to protect citizens from the harmful aspects of Internet transactions.10 The Conference made clear why these twin aims are difficult to achieve independent of one another, and enormously difficult to achieve simultaneously.

Consider the first aim of citizen protection. A government can legitimately view many Internet communications as harmful to its citizens or other persons within its borders.11 For example, a nation might worry about fraudulent commercial offers via the Internet to one of its citizens. The Internet makes it very easy for a seller to offer its product from a country that requires less consumer protection than the consumer's home law. If the seller has no local assets, it can be difficult for the government to enforce its consumer protection laws.12 Enforcement actions against such offshore regulation evaders is not impossible, however. A regulating nation can many steps to regulate unwanted offshore Internet transactions. For example, it can act against financial and communications intermediaries with a local presence, seek international injunctions, and institute parallel lawsuits in other countries.13 But these steps are, at least right now, costly, difficult, and only modestly successful. The problem is exacerbated by the speed and velocity of Internet transactions, as well as the relative ease of preserving anonymity on the Internet.

Governments face similar problems in the gambling and tax contexts. An offshore Internet gambling site might reach customers in a country that prohibits Internet gambling. Unless the offshore company has a local presence or assets, it is hard for the country that wants to regulate gambling to enforce its regulations abroad. 14 In the tax context, the most difficult problem is the application of the consumption tax (like a VAT) to the purchase and delivery of digitalized goods.15 The place of consumption rule, which would traditionally apply, is hard to enforce, since a government cannot control and levy a VAT on digital goods at the border as it can with "real space" goods. In this and other tax contexts, governments worry that the speed and relative anonymity of Internet transactions, combined with the waning of financial intermediaries whose records facilitate tax collection, will result in a serious erosion of the tax base. 16

The second challenge for government is to promote an environment for business that is predictable and not unduly burdensome. The problem of the optimal level of regulation for Internet transactions is difficult even in a purely domestic context. For example, how much, if at all, should Internet commerce be taxed? How much and what type of disclosure should sellers make? What is the appropriate level of privacy protection? Even if a government adopts a favorable policy on these and related issues, it cannot guarantee that its policy can succeed independent of the policies of other governments, because every nation in which a commercial Internet transaction takes place arguably has prescriptive jurisdiction and can apply its regulations to the transaction. This means that no particular government, acting alone, can provide business with a predictable, non-burdensome regulatory atmosphere.

3. Business

Business wants an Internet environment in which regulation is predictable and non-burdensome.17 The essential problem business faces on the Internet is multi-national regulation. It is costly for a business using the Internet to determine where the "real space" destination of the transaction is, or to stop transacting in one country without affecting business transactions in other countries. These costs are exacerbated when goods are transmitted digitally (such as software) rather than in real space (such as books), for in the latter case the seller has more reliable information about where the seller is.18

To say that it is costly for companies to target their commercial Internet transactions to particular nations is not to say that it is impossible. An Internet business can use current payment systems, credit card systems, geographically targeted web sites, and other strategies to target its transactions toward particular nations and away from others.19 Avoiding multi-regulatory exposure is simply a cost of doing business on the Internet, a cost that has not prevented enormous Internet commerce growth in recent years.20

Many speakers nonetheless lamented the costs of geographical targeting and discrimination, and maintained that the need to comply with multiple regulations weakens the speed and efficiency benefits of the Internet.21 Others suggested that uncertainty about multiple-jurisdictional exposure chills the expansion of Internet commerce,22 and might increase the cost of capital.23 There were differing views about how potential multi-jurisdictional regulatory exposure affected small and large Internet companies. One view is that larger companies are disadvantaged because, unlike small companies located in a single nation, they have physical presence in many nations, and thus are subject to the enforcement jurisdiction of many nations.24 Another view is that smaller companies are disadvantaged because they lack the resources needed to invest in geographical-targeting technology to avoid multiple-regulatory exposure.25

4. Consumers

Consumers and other individual Internet users are not interested in jurisdiction per se.26 They simply want a safe, trustworthy Internet environment. But jurisdictional issues indirectly affect consumers in two ways. First, consumers ultimately bear the costs, outlined above, of unnecessary multiple regulation. Electronic commerce cannot make its full potential contribution to the economy of a destination country with burdensome regulations.27

Second, jurisdiction is relevant when a transaction goes bad and a consumer seeks a remedy. If the seller is located abroad, the consumer faces several jurisdictional hurdles. One is finding a local court with personal jurisdiction over the foreign seller. In the United States, there is an emerging consensus that a passive web page does not, without more, establish personal jurisdiction in every state where its content appears; but if a company has an interactive site that leads to business in a state, it is subject to personal jurisdiction there for disputes arising out of the transaction.28 Although there are many fewer decided cases outside the United States, it seems clear that non-U.S. courts will be less aggressive in asserting personal jurisdiction over offshore Internet companies.29 Even if the consumer's local court gets personal jurisdiction over the foreign seller and issues a judgment against it, the buyer must enforce the judgment abroad unless the seller has local assets. In most circumstances there is no legal guarantee that the judgment can be enforced abroad. Europe countries have a regional treaty arrangement - the Brussels and Lugano Conventions - that ensure enforcement of judgments within Europe.30 But these treaties do not apply beyond Europe.

These jurisdictional difficulties only arise if a consumer has the resources to bring a lawsuit arising out of an Internet transaction. Most consumers will not, and in any event most Internet transactions are too low in value to warrant an expensive lawsuit.31 This suggests that a different kind of jurisdictional solution -- private regulation -- may be especially attractive.32 This issue is discussed in more detail below.

5. Jurisdiction and Confidence

In sum, the problem of jurisdiction relates to the problem of building confidence on the Internet in different ways. Governments seek confidence that their citizens will be protected from harmful Internet transactions, and that their regulatory policies will be effectuated. This is difficult to do because Internet vendors can easily locate beyond governments' effective jurisdictional authority, and because no single country can assert regulatory hegemony over the Internet. Business needs confidence that it can operate on the Internet in a legal and cost-effective way. The challenge for business is to reduce the threat of multi-jurisdictional exposure. Individuals need confidence to engage in Internet transactions safely, and to know that if something goes wrong they will have an effective remedy.

B. APPROACHES

There are three basic approaches to solving the Internet's jurisdictional problems. One is harmonization of national laws. The second is private regulation. The third is unilateral regulation by any nation that wishes to do so. All three solutions have promise and problems.

1. International Harmonization

Harmonization is the process of eliminating or attenuating regulatory differences among nations.33 Harmonization strategies can help to resolve the jurisdictional problems faced by all three Internet players. For government, harmonization can attenuate the problem of regulation evasion by ensuring that offshore content providers abide by acceptable regulatory norms.34 For business it can lessen the costs of multiple regulatory compliance.35 And for consumers it can help to ensure that Internet businesses satisfy acceptable regulatory criteria and can be trusted.

Harmonization can take many forms. One form of harmonization is a voluntary convergence of national regulatory laws.36 Another form is the treaty, either bilateral or multilateral. A treaty can do many things. It can adopt a uniform international standard;37 specify the outcome characteristics of particular transactions;38 state general governmental policy objectives;39 or establish international choice-of-law rules that specify which nation's law governs particular transactions.40 A final mechanism for harmonization is "soft" cooperation among national enforcement agencies with respect to regulatory policies they share in common.

There was a general sense at the Conference that for many important regulatory issues - especially consumer protection, privacy, banking, and gambling - national regulations differed sharply and will be difficult to harmonize.41 They will be difficult to harmonize because they reflect different national histories, values, cultures, levels of economic development, and the interests of entrenched local interests.42 In addition, there is a concern about whether the international lawmaking process is adequately transparent, and whether groups that draft uniform laws and international treaties represent a broad enough range of interests and expertise.43 Even if harmonization can be achieved, problems remain. There is no guarantee that the harmonized provisions will cover every difficulty that might arise in a particular topic, or will override mandatory domestic law, or will be interpreted and enforced in a uniform fashion in different countries.44 Finally, international harmonization by treaty is a lengthy process. After negotiation, drafting, and agreement, which takes some time, there is a long and often- contentious domestic ratification processes.45 Many speakers suggested that such a lengthy lawmaking process was not ideal for the quickly evolving Internet.46

The Conference also discussed the benefits and drawbacks of regional harmonization, primarily focusing on the harmonization projects in the European Union. European countries are far ahead of the rest of the world in addressing the regulatory problems posed by the Internet.47 They already have European-wide treaties on personal jurisdiction and judgments,48 although some expressed concern that proposed revisions to these treaties will prove harmful to e-commerce.49 In addition, the European Union has scores of substantive directives or proposed directives related to various aspects of e-commerce.50 Regional European regulation has both positive and negative aspects. On the positive side, Europe has invaluable experience both in creating processes for reaching regulatory compromise, and in crafting language to address the jurisdictional and substantive regulatory problems presented by the Internet.51 On the negative side, some fear that Europe's extensive regulation of the Internet will increase rather than diminish predictability for consumers and business alike, both within and without the European Union.52 In addition, European regulations might establish an "immovable baseline" of regulation that will make it difficult to address Internet regulation problems from a broader international perspective or from the perspective of private regulation.53

Turning to the substance of harmonization, the Conference made progress in moving beyond the "point of origin" versus "point of destination" debate. Almost everyone agreed that harmonization of particular fields (like consumer protection) should proceed on piecemeal issues about which nations already generally agree, even if agreement cannot be reached on other issues in the field.54

This approach was considered most fully in the consumer protection context. There appears to be general agreement among nations on core principles of fraud and unfairness and (perhaps to a lesser degree) deception, while there is significantly less agreement on such issues as comparative advertising and disclosure. For this reason, many believed it might be possible to harmonize rules of fraud even if harmonization of disclosure and cooling off periods is more difficult.55 Others recommended that national regulators might want to ensure that point of destination standards apply to consumer fraud cases, but might agree to harmonize disclosure rules.56 Although there was no final consensus about which consumer protection issues were best suited for harmonization, the debate proceeded on the assumption that harmonization is not an all-or-nothing prospect, and that progress might come by harmonizing those sub-issues on which there is agreement even if comprehensive harmonization is not possible.

Similar compromise approaches were suggested in the financial services context. One speaker said it was quite common for banks to be regulated for certain matters, such as safety and soundness, at the place of origin, while being regulated for other matters, such as compliance and consumer protection, at the place of destination.57 Even a speaker who argued for a place-of-origin approach to financial services regulation acknowledged that such an approach could only work if national laws converged in substance.58

There was less optimism that jurisdictional rules themselves could be harmonized. Nations both differ in jurisdictional rules and in jurisdictional philosophy.59 As mentioned above, Europeans have been successful in harmonizing jurisdiction and judgments doctrines on a regional basis.60 But jurisdictional differences between the United States and the rest of the world seem particularly hard to overcome. United States law applies broadly to extraterritorial events, U.S. long-arm statutes permit liberal assertions of personal jurisdiction, and the novel remedies available in the United States, such as punitive or multiple damages and disgorgement, make it difficult for other nations of the world to agree to enforce U.S. judgments.61 The Hague Conference on Private International Law is drafting a global recognition of judgments treaty with the full participation of the United States. 62 But prospects for final agreement are uncertain, and in any event the draft does not consider electronic commerce issues. A group associated with the Hague Conference will, however, be meeting soon to consider the relationship between the draft treaty and electronic commerce.63

Treaties are not the only way to harmonize national laws. Nations can incorporate into their domestic laws policy recommendations and models laws developed by organizations such as UNCITRAL and the OECD.64 Harmonization can also be achieved when government regulators coordinate their Internet enforcement efforts with counterparts in other countries. National regulators emphasized the importance of information-swapping,65 and noted that enforcement coordination works best when substantive regulatory regimes are similar.66 They also noted that this form of harmonization was hard to achieve when enforcement agencies have different priorities, and when national regulations differ.67 Nonetheless, there was a general sense that even mild forms of regulatory cooperation were useful, if only because "cooperation begets more and better cooperation."68 It is worth noting in this regard that information exchange among nations can lead to "imitation by learning," in which "countries see the way other countries [regulate] - what are their successes, what are their failure - and they adopt programs that are consistent with other countries."69

2. Private Ordering

Harmonization of national laws is not necessarily the best road to establishing the needed confidence in Internet transactions. As Bill Poulos, the Director of Electronic Commerce Policy at the EDS Office of Government Affairs, noted:

National and international consumer protection laws alone may not fully provide the consumer confidence that's necessary. The continuing government focus solely on trying to decide which law is applicable and which courts is competent to hear the case doesn't go far enough to provide the kinds of resolutions that consumers need.70

Many speakers argued that private rather than public regulation best solved the jurisdictional and confidence difficulties presented by the Internet. Such private regulation places lawmaking and dispute resolution control in the hands of private parties -- primarily, Internet vendors and Internet intermediaries.

The benefits of private regulation are clear. The number and velocity of Internet transactions make it difficult for nations to regulate using public law and courts.71 Also, the value of many Internet transactions is so low that in most circumstances recourse to real-space courts will not be cost-justified.72 In addition, unilateral national regulation leads to the difficult conflict of laws problems sketched above. Private regulation can attenuate these problems by offering a single, certain governing law for the particular transactions or networks in question.73 Another benefit of private regulation is that private dispute resolution mechanisms can be more informal and much less costly than real-space alternatives.74

The primary drawback of private regulation concerns reliability. Several speakers noted that private regulation works best when market incentives and private regulation coincide.75 Because trust and reliability are such important components of a successful Internet commercial venture, there is reason to believe that in many Internet contexts market forces will ensure optimal private dispute resolution regimes, especially where large businesses are concerned.76

Like harmonization, private regulation comes in many forms:

A. Business to Business

Approximately 90% of the value of electronic commerce today is generated by business-to-business transactions.77 The arguments for private regulation are at their peak in the business-to-business context, because of the importance of predictability and certainty, and because worries about information and power asymmetries are attenuated. The Conference learned about two possibilities for business-to-business private regulation. The first is the ICC's electronic commerce project, which among other things has been working to create best practices for users and providers of electronic commerce services, as well as standard e-terms and conditions that businesses can reference in their contracts.78 The second is the Bolero project, which is designed to replace the burdensome and expensive paper documentation used in international trade with electronic messages and documentation.79 The Bolero project works as a kind of private club, where members consent by contract to the Bolero Association's substantive and dispute resolution rules.80

B. Business to Consumer

Business to consumer transactions raise more complicated issues of private regulation. Consumers are less sophisticated than businesses, and have fewer resources, and nations have a greater interest in applying their mandatory consumer protection laws to transnational consumer transactions. Nonetheless, there are several private solutions that can reduce Internet companies' multiple regulatory exposure while at the same time protecting consumers in ways that accommodate governments' consumer protection concerns.

One much-discussed proposal would allow consumers to consent by contract to a private consumer protection and dispute resolution regime if (a) the chosen law and forum are clearly disclosed to the consumer, (b) the chosen forum is reasonably accessible and neutral, and (c) the chosen law provides reasonable, baseline consumer protections.81 This proposal would also exclude private regulation of fraud and of issues that have substantial third-party effects. At bottom, this proposal is a private regulation equivalent to the selective harmonization approach sketched above. Its advantage is that there need not be agreement on a single global standard of consumer protection even for narrow sub-issues of consumer protection; consumer and vendor can tailor what type of protection at what price is appropriate for the particular transaction in question. Its primary disadvantage is the worry that consumers lack the intelligence or information to wisely select a consumer protection law. But because the Internet increases the availability of consumer choice and limits the sales pressures that can create unfairness, information asymmetries and unconscionability are not as significant a concern.82

Governments and private lawmaking organizations can also facilitate private regulation by developing codes of conduct, best practices, off-the-shelf business terms, and the like to assist Internet business in achieving uniformity.83 In addition, a variety of informal dispute resolution mechanisms can provide consumers with on-line remedies that are quicker, cheaper, and thus more effective than those available in national courts.84

Finally, there was much discussion about how private intermediaries can help to instill consumer confidence in transborder contexts. Intermediaries with well-established reputations can confer a "seal of approval" on Internet vendors with established records of consumer protection. And financial intermediaries can provide flexible and effective dispute resolution mechanisms for consumer transactions.85 When a consumer makes a purchase on the Internet on some credit cards, he or she also purchases a sophisticated private law and dispute resolution mechanism.86 A series of contracts exist between the card holder, card issuer, merchant bank, and merchant that include operating regulations and dispute resolution mechanisms. If a dispute arises on such issues ranging from fraudulent purchase, overcharging, currency errors, product defects, or misdescription, the bank serves as an intermediary dispute resolution mechanism that "charges back" - i.e. debits the merchant (through the merchant bank) and credits the consumer - when warranted. This chargeback system works well for transborder consumer tourism purchases in "real space." And it seems to satisfy the market rationale criterion, since the credit card company has an incentive to instill consumer trust, and the merchant has an incentive to cooperate to take advantage of the credit card payment system.

3. Private Regulation and the Shadow of Government

Many speakers noted that private and government regulation go hand in hand. As Francis Gurry noted, "self-regulation requires a certain amount of discipline on the part of governments to stay out."87 The contractual approach to private regulation only works if governments enforce these contracts, i.e., refuse to recognize derogations from the private law and dispute resolution mechanisms.88 Relatedly, private regulation takes place in the shadow of governmental regulation; government regulation imposes liability costs that inform private solutions. Finally, government and private regulation often work well together. Thus, for example, the most effective regulatory scheme for consumer protection might have governments aggressively regulating fraudulent Internet vendors who are not susceptible to standard market incentives, while leaving it to private regulation to govern more benign regulatory issues, where Internet vendors' have market incentives to establish trustworthy reputations among consumers.89

4. Education

Legal solutions, whether public or private, are not the only, or even the best, way to establish consumer trust on the Internet. Another solution is to educate consumers about how to make intelligent and informed commercial choices on the Internet.90

5. Learning to Live With Uncertainty

International harmonization, private regulation, and education are not comprehensive solutions. For the foreseeable future, unilateral national regulation will continue to be governments' easiest and favorite tool to prevent perceived evils on the Internet. This fact, combined with the slowness of the harmonization process, means that in the foreseeable future business will continue to face a multiple-regulation environment. But Business on the Internet has flourished in the past five years even with jurisdictional uncertainty. As one speaker noted, "the Internet pace demands that companies act now in spite of jurisdictional uncertainty."91 In this connection, Andy Pincus of the Commerce Department suggested that pressing for quick national and international solutions to jurisdictional problems is not necessarily the best way to promote confidence on the Internet.92 After all, consumers are not interested in jurisdictional niceties, and governments are slow in achieving jurisdictional solutions. Pincus argued that because "the alternative to uncertainty probably is in the short term bad rules rather than good rules, . . . uncertainty is definitely the lesser of two evils."93

C. THE FUTURE

There were many lessons learned at the Conference. While there was much disagreement on details, there was a broad consensus about how the problems of jurisdiction and confidence need to be addressed in the future. Harmonization of national laws and the development of private regulatory schemes are not mutually exclusive approaches; both need to be pursued simultaneously. In addition, jurisdictional solutions need to be considered at the retail rather than the wholesale level. Progress should be made on a micro, issue-by-issue basis rather than a broad, trans-substantive basis. And progress should be made where it can be achieved, even if this results in partial rather than total solutions to the Internet's jurisdictional conundrums. It seems clear that in the business-to-consumer context, private regulation will be necessary to a large degree because of the number, velocity, and relatively low value of consumer transactions. National and international regulation should thus not be pursued prematurely in ways that create uncertainty and preclude more intelligent or informed solutions, especially private regulatory solutions.


ENDNOTES -- All references are to volumes I and II of the official transcript.

  1. Pitofsky, vol. I, at 122.
  2. Gurry, vol. I, at 157
  3. See, e.g., Simpson, vol. I, at 11-12; Day, vol. I, at 27; Pitofsky, vol. I, at 121-22; Pincus, vol. II, at 19.
  4. Perritt, vol. I, at 32-35.
  5. Perritt, vol. I, at 34-35.
  6. Ishiguro, vol. I, at 52-53; Perritt, vol. I, at 73.
  7. Perritt, vol. I. at 35, Ishiguro, vol. I, at 54-57.
  8. Lindberg, vol I., at 42-51.
  9. Ishiguro, vol. I, at 51-62.
  10. Pitofsky, vol. I, at 122.
  11. See, e.g., Stevenson, vol. II, at 183.
  12. See, e.g., Stevenson, vol II, at 183; James, vol. II, at 198.
  13. Pitofsky, vol. I, at 125; Stevenson, vol. II, at 187-189. Chairman Pitofsky did say, however, that imposing general liabilities on Internet intermediaries was something he was "uncomfortable" with, and that was in his opinion unlikely to occur. Pitofsky, vol. I, at 142.
  14. Sutin, vol. I, at 281-83.
  15. Kreienbaum, vol. I, at 247-55; Dunahoo, vol. I, at 257.
  16. Cobb. Vol. I, at 222; Dunahoo, vol. I, at 258.
  17. See, e.g., Pincus, vol. II, at 14.
  18. Cf. Kreienbaum, vol. I, at 247-49.
  19. Day, vol. I, at 27; Lawson, vol. II, at 18; Plesser, vol. II, at 34-35.
  20. Bell, vol. I, at 101; Goldsmith, vol. II, at 260.
  21. Reed, vol. I, at 209-10, 213, 216; Pincus, vol. II, at 20; Plesser, vol. II, at 34-35; cf. Judy, vol. I, at 218.
  22. Bell, vol. I, at 102.
  23. Burman, vol. I, at 333-35.
  24. Bell, vol. I, at 99-100.
  25. Pincus, vol. II, at 20.
  26. Gurry, vol. I, at 157-58; Pincus, vol. II, at 2, 6.
  27. Bell, vol. I, at 102.
  28. Gedid, vol. I, at 81-93.
  29. Ishiguro, vol. I, at 54-56; Perritt, vol. I, at 73.
  30. Agne, vol. I, at 44-45.
  31. Gurry, vol. I, at 156; Cole, vol. II, at 214.
  32. Gurry, vol. I, at 156.
  33. Clift, vol. I, at 313.
  34. Clift, vol. I, at 317.
  35. Clift, vol. I, at 314-318.
  36. This form of harmonization is sometimes called "substantive convergence." Clift, vol. I, at 313.
  37. An example of a treaty establishing a uniform international standard is the United Nations Convention on the International Sale of Goods.
  38. Clift, vol. II, at 313.
  39. Clift, vol. II, at 314.
  40. A good example of a treaty that establishes an international choice-of-law regime is the Rome Convention on the Law Governing Contracts.
  41. This point was made by numerous speakers, but was perhaps more clearly evidenced by the panel devoted to a comparative overview of national consumer protection laws, which revealed sharp differences in national approaches to consumer protection. See Tasse, vol. II, at 37-47 (Canadian law); Heun and Westerwelle, vol. II, at 48-62 (German law); Liu, vol. II, at 63-76 (Chinese and Taiwanese law).
  42. See, e.g., Clift, vol. I, at 318-19; Pincus, vol. II, at 8. As some speakers noted, these regulatory differences often have protectionist aims. See Plesser, vol. II, at 28; Geist, vol. II, at 96.
  43. Gurry, vol. I, at 166; Clift, vol. I, at 323.
  44. Clift, vol. I, at 321-22, 325.
  45. As Francis Gurry noted, "typically the period of time required for multilateral negotiations for the conclusion of a treaty is between three and five years on a fast track." Gurry, vol. I, at 164. Jenny Clift noted that the United Nations Sales Convention took fifty years to complete, after which time many of the anomalies which it was designed to address had disappeared. Clift, vol. I, at 320.
  46. Judy, vol. I, at 194; Clift, vol. I, at 320-21; Pincus, vol. II, at 6-7.
  47. For overviews of these efforts, see Lindberg, vol. I, at 41-51; Pullen, vol. II, at 126-139; Bohannon, vol. II, at 140-50.
  48. The Brussels and Lugano Conventions govern personal jurisdiction and the enforcement of judgments within Europe.
  49. Lindberg, vol. I, at 46-47; Pullen, vol. II, at 132-36.
  50. Lindberg, vol. I, at 42-51; Pullen, vol. II, at 126-32; Bohannon, vol. II, at 143-44.
  51. Perritt, vol. I, at 73.
  52. Bohannon, vol. II, at 144-47; but see Reed, vol. II, at 151-52 (disagreeing).
  53. Yeo, vol. II, at 103; Bohannon, vol. II, at 148..
  54. For two of many statements to this effect, see Pitofsky, vol. I, at 132-34; Pincus, vol. II, at 12-15. A notable exception was Reed, vol. I, at 214.
  55. See, e.g., Pitofsky, vol. I, at 134.
  56. Pincus, vol. II, at 13; Plesser, vol. II, at 32-33.
  57. Judy, vol. I, at 193.
  58. Reed, vol. I, at 213-14.
  59. Ishiguro, vol. I, at 52.
  60. Lindberg, vol. I, at 44-45.
  61. Ishiguro, vol. I, at 54-62.
  62. Perritt, vol. II, at 265.
  63. Perritt, vol. II, at 265.
  64. Labuda, vol. II, at 229.
  65. Stevenson, vol. II, at 189; James, vol. II, at 201.
  66. Wellerby, vol. II, at 206.
  67. James, vol. II, at 200.
  68. Wellerby, vol. II, at 208.
  69. Pitofsky, vol. I, at 134.
  70. Poulos, vol. II, at 244-45.
  71. Goldsmith, vol. II, at 261.
  72. See, e.g., Gurry, vol. I, at 70.
  73. Nilson, vol. I, at 290.
  74. Wong, vol. II, at 236.
  75. Pitofsky, vol. I, at 144; cf. Plesser, vol. II, at 27.
  76. Goldsmith, vol. II, at 262.
  77. Cochetti, vol. II, at 177.
  78. Nilson, vol. I, at 294-95.
  79. Nilson, vol. I, at 296-304.
  80. Nilson, vol. I, at 304.
  81. Crawford, vol. II, at 120-25.
  82. Crawford, vol. II, at 123-24.
  83. Clift, vol I, at 313-14; Labuda, vol. II, at 228-34.
  84. Wong, vol. I, at 234-41.
  85. Blackmer, vol. II, at 105-06; Nostrant, vol. II, at 221-28.
  86. Nostrant, vol. II, at 221-28.
  87. Gurry, vol. I, at 165.
  88. Goldsmith, vol. II, at 262; Perritt, vol. II, at 271.
  89. Cf. Lawson, vol.II, at 247-48.
  90. Pitofsky, vol. I, at 137.
  91. Bell, vol. I, at 101.
  92. Pincus, vol. II, at 4-17.
  93. Pincus, vol. II, at 16.

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