Jurisdiction: Building Confidence in a Borderless Medium
1999 Annual Conference
Summary of Proceedings
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
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.
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
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
It is against this legal background that the challenges of
jurisdiction for government, business, and consumers were addressed.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
- Pitofsky, vol. I, at 122.
- Gurry, vol. I, at 157
- See, e.g., Simpson, vol. I, at 11-12; Day,
vol. I, at 27; Pitofsky, vol. I, at 121-22; Pincus, vol. II, at
- Perritt, vol. I, at 32-35.
- Perritt, vol. I, at 34-35.
- Ishiguro, vol. I, at 52-53; Perritt, vol. I,
- Perritt, vol. I. at 35, Ishiguro, vol. I, at
- Lindberg, vol I., at 42-51.
- Ishiguro, vol. I, at 51-62.
- Pitofsky, vol. I, at 122.
- See, e.g., Stevenson, vol. II, at
- See, e.g., Stevenson, vol II, at 183; James,
vol. II, at 198.
- 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.
- Sutin, vol. I, at 281-83.
- Kreienbaum, vol. I, at 247-55; Dunahoo, vol.
I, at 257.
- Cobb. Vol. I, at 222; Dunahoo, vol. I, at
- See, e.g., Pincus, vol. II, at 14.
- Cf. Kreienbaum, vol. I, at 247-49.
- Day, vol. I, at 27; Lawson, vol. II, at 18;
Plesser, vol. II, at 34-35.
- Bell, vol. I, at 101; Goldsmith, vol. II, at
- Reed, vol. I, at 209-10, 213, 216; Pincus,
vol. II, at 20; Plesser, vol. II, at 34-35; cf. Judy, vol. I, at
- Bell, vol. I, at 102.
- Burman, vol. I, at 333-35.
- Bell, vol. I, at 99-100.
- Pincus, vol. II, at 20.
- Gurry, vol. I, at 157-58; Pincus, vol. II,
at 2, 6.
- Bell, vol. I, at 102.
- Gedid, vol. I, at 81-93.
- Ishiguro, vol. I, at 54-56; Perritt, vol. I,
- Agne, vol. I, at 44-45.
- Gurry, vol. I, at 156; Cole, vol. II, at
- Gurry, vol. I, at 156.
- Clift, vol. I, at 313.
- Clift, vol. I, at 317.
- Clift, vol. I, at 314-318.
- This form of harmonization is sometimes
called "substantive convergence." Clift, vol. I, at 313.
- An example of a treaty establishing a
uniform international standard is the United Nations Convention on the
International Sale of Goods.
- Clift, vol. II, at 313.
- Clift, vol. II, at 314.
- A good example of a treaty that establishes
an international choice-of-law regime is the Rome Convention on the Law
- 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).
- 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.
- Gurry, vol. I, at 166; Clift, vol. I, at
- Clift, vol. I, at 321-22, 325.
- 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.
- Judy, vol. I, at 194; Clift, vol. I, at
320-21; Pincus, vol. II, at 6-7.
- For overviews of these efforts, see
Lindberg, vol. I, at 41-51; Pullen, vol. II, at 126-139; Bohannon, vol.
II, at 140-50.
- The Brussels and Lugano Conventions govern
personal jurisdiction and the enforcement of judgments within
- Lindberg, vol. I, at 46-47; Pullen, vol. II,
- Lindberg, vol. I, at 42-51; Pullen, vol. II,
at 126-32; Bohannon, vol. II, at 143-44.
- Perritt, vol. I, at 73.
- Bohannon, vol. II, at 144-47; but see Reed,
vol. II, at 151-52 (disagreeing).
- Yeo, vol. II, at 103; Bohannon, vol. II, at
- 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.
- See, e.g., Pitofsky, vol. I, at 134.
- Pincus, vol. II, at 13; Plesser, vol. II, at
- Judy, vol. I, at 193.
- Reed, vol. I, at 213-14.
- Ishiguro, vol. I, at 52.
- Lindberg, vol. I, at 44-45.
- Ishiguro, vol. I, at 54-62.
- Perritt, vol. II, at 265.
- Perritt, vol. II, at 265.
- Labuda, vol. II, at 229.
- Stevenson, vol. II, at 189; James, vol. II,
- Wellerby, vol. II, at 206.
- James, vol. II, at 200.
- Wellerby, vol. II, at 208.
- Pitofsky, vol. I, at 134.
- Poulos, vol. II, at 244-45.
- Goldsmith, vol. II, at 261.
- See, e.g., Gurry, vol. I, at 70.
- Nilson, vol. I, at 290.
- Wong, vol. II, at 236.
- Pitofsky, vol. I, at 144; cf. Plesser, vol.
II, at 27.
- Goldsmith, vol. II, at 262.
- Cochetti, vol. II, at 177.
- Nilson, vol. I, at 294-95.
- Nilson, vol. I, at 296-304.
- Nilson, vol. I, at 304.
- Crawford, vol. II, at 120-25.
- Crawford, vol. II, at 123-24.
- Clift, vol I, at 313-14; Labuda, vol. II, at
- Wong, vol. I, at 234-41.
- Blackmer, vol. II, at 105-06; Nostrant, vol.
II, at 221-28.
- Nostrant, vol. II, at 221-28.
- Gurry, vol. I, at 165.
- Goldsmith, vol. II, at 262; Perritt, vol.
II, at 271.
- Cf. Lawson, vol.II, at 247-48.
- Pitofsky, vol. I, at 137.
- Bell, vol. I, at 101.
- Pincus, vol. II, at 4-17.
- Pincus, vol. II, at 16.
About ILPF | To Join ILPF | Working Groups & Publications
Member Resources | Events | Home