September 11-12, 2000
San Francisco, CA

The Directive on Electronic Commerce at International Level

Henry H. Perritt, Jr.
Dean, Vice President for the Downtown Campus, and Professor
Chicago-Kent College of Law, Illinois Institute of Technology, USA

I. Introduction Few informed participants and policymakers doubt the Internet's value as an important new global marketplace and political arena. The new marketplace presents low economic barriers to entry, but uncertainty about remedies when electronic deals go bad may impede full realization of the Internet's potential. Deployment of new hybrid forms of international regulation of commerce can reduce these noneconomic barriers.

Even if negotiations succeed over an international treaty on civil judgment enforcement,² that is not enough. A treaty will help reduce uncertainty. But a treaty will not solve the problem of a furniture manufacturer in Thomasville, North Carolina, who sells furniture through the Internet. The treaty may say that the furniture manufacturer must litigate in, let's say, Tirana, Albania where one of his customers is. That is not a very attractive proposition if the manufacturer sold $1,000 worth of furniture, because it will cost it more to litigate there than the transaction was worth. And if the treaty says that the furniture manufacturer gets to litigate at home, in North Carolina, that won't be a very attractive proposition for the purchaser of the furniture in Tirana, Albania.

The problem is that the transaction costs of adjusting disputes through conventional judicial institutions are too high for many of the low-value transactions that represent the Internet's greatest potential.

This paper concentrates on the utility -- and limitations of -- the targeting concept to focus adjudicative jurisdiction and choice of law, and on the future of hybrid regulation. It evaluates the potential of Hague Conference negotiations over an international civil judgments convention. It reviews some recent controversies over private self-regulation. The author of this paper has addressed other important aspects of Internet jurisdiction elsewhere.³

II. Recent Developments Merely because a law professor or a policymaker can conceive of ways to reduce legal barriers to e-commerce is not enough. Good ideas must be translated into public law and commercial practice. The boundary between public and private law must be expressed in public law defining the respective roles of different institutions in hybrid regulatory regimes.⁴
 
 

Hague Draft Judgments Convention The Hague Conference on Private International Law¹⁶ has 100 years of experience in facilitating multilateral agreement among states on public law frameworks for private law.¹⁷ Now, the Conference is considering a comprehensive treaty for judicial jurisdiction and enforcement of foreign civil judgments.¹⁸ The Conference has an opportunity to work out basic ground rules for localizing conduct in Internet markets, through targeting and otherwise.¹⁹ It also has an opportunity to define the relationship between private regulation and public enforcement.²⁰

Despite the longstanding difficulty in negotiating an international convention for enforcing foreign civil judgments, negotiations sponsored by the Hague Conference on Private International Law had succeeded in preparing a draft convention by the turn of the century. Modeled closely on the European Brussels and Lugano Conventions, the Hague draft²¹ convention applies to civil and commercial matters, excluding revenue, customs, or administrative matters.²² It also excludes arbitration and proceedings relating thereto,²³ admiralty and maritime matters,²⁴ and insolvency, composition or analogous proceedings.²⁵ The convention limits jurisdiction as well as mandating enforcement of foreign judgments.²⁶ Accordingly, only those judgments supported by jurisdiction under the convention are entitled to enforcement under the convention. General jurisdiction extends to defendants in the courts of the state where they are habitually resident.²⁷ Artificial persons are habitually resident in the state where they have their statutory seats, under whose law there were incorporated or formed, or where they have their central administration or principal place of business.²⁸ Forum selection clauses are effective with no particular preconditions.²⁹ Defendants also may be sued in the courts of a state in which a branch, agency, or any other establishment of the defendant is situated or where the defendant has carried on regular commercial activity by other means, but only when the dispute relates directly to the activities of that branch, agency or establishment or regular commercial activity.³⁰ This approach omits the possibility, under U.S. "doing business general jurisdiction" concepts,³¹ of multiple places for general jurisdiction to be asserted over corporations. In addition, general jurisdiction exists in places designated by the parties in a forum selection clause,³² and when a defendant waives jurisdictional protests by proceeding on the merits without contesting jurisdiction.³³ Forum selection clauses may point to either the courts of contracting states or the courts of non-contracting states. Objections to jurisdiction are waiveable.³⁴ Contractual disputes may be heard where goods or services were supplied.³⁵ Special rules apply to consumer contracts. Consumers may bring suit in their home states when sellers from other states target their home states,³⁶ and may be sued only in their home courts.³⁷ Special rules also apply to individual contracts of employment, allowing employees to sue employers in the state where the employee habitually works.³⁸ Employers may sue employees only where the employee habitually resides or where the employee habitually works.³⁹

Specific jurisdiction against defendants with branches, agencies, or other establishments may be brought wherever the branch, agency, or other establishment is located-or, where the defendant has carried on regular commercial activity by other means.⁴⁰

Tort plaintiffs may sue where the act or omission occurred or where the injury arose, unless the defendant establishes that the person claimed to be responsible could not reasonably have foreseen that the act or omission could result in an injury where it occurred.⁴¹ Jurisdiction under the tort principles is limited to specific jurisdiction. Further, jurisdiction premised on the place of occurrence of the injury extends only to that particular injury.⁴² Courts and jurisdictions where immoveable property or tenancy related thereto is located have exclusive jurisdiction.⁴³ Intellectual property that must be registered or deposited can be litigated only in the place of deposit or registration.⁴⁴ This source of jurisdiction does not apply to copyright even though registration or deposit is involved.⁴⁵

Exclusive jurisdiction over registerable intellectual property, except for copyrights, is vested in the courts of the place of registration.⁴⁶

The draft convention prohibits certain grounds of jurisdiction, including in rem jurisdiction except for claims specifically related to the seized property,⁴⁷ plaintiff or defendant nationality,⁴⁸ the domicile, habitual, or temporary residence or presence of the plaintiff,⁴⁹ general doing business jurisdiction,⁵⁰ tax jurisdiction,⁵¹ and the signing of a contract in a state.⁵² Signatories may provide for other grounds of jurisdiction under national law, but those grounds do not support recognition and enforcement under the treaty.⁵³

Judgments supported by an affirmative treaty basis of jurisdiction must be recognized and enforced by signatory states.⁵⁴ Judgments supported by a prohibited ground of jurisdiction may not be recognized or enforced.⁵⁵ Courts asked to recognize and enforcement a foreign a judgment under the convention are bound by the findings of fact in the rendering court unless a default judgment is involved.⁵⁶ Judgments procured by fraud or that are manifestly incompatible with the public policy of the recognizing state were not supported by fair procedure need not be recognized.⁵⁷ Otherwise, a recognizing court may not leave us at the merits of a judgment rendered by a signatory state.⁵⁸ Judgments awarding punitive damages are subject to recognition and enforcement up to the amount of damages that could have been recovered in the recognizing state.⁵⁹

As of this writing, the main controversies preventing agreement on the draft convention involve U.S. objections to limitations on general doing business jurisdiction, U.S. objections to extension of tort jurisdiction to the place of injury without regard to the purposefulness test of World Wide Volkswagen,⁶⁰ and the exclusion of consumer and employment contracts from choice of forum clauses.

III. Solutions for Reducing Legal Barriers and Uncertainty

A. Core Principles The United States Congress, the Clinton/Gore Administration, and the European Commission have embraced some core principles that they are translating into actual law framing hybrid regulation. Most of the new federal legislation for e-commerce at the close of the century embraces some form of safe harbor for private regulation.⁶¹ Europe has become more sympathetic to the contribution that private dispute resolution can play in protecting legitimate interests in e-commerce⁶² and appears open to a mix of public and private regulation.⁶³

B. Targeting Concepts E-commerce is not only cross border; it involves acts occurring in several places at once. The Internet represents a commercial world confronted with the disappearance of borders. Two responses to this phenomenon are equally implausible. Some think that the Internet can remain immune from law. It cannot. Democratic political systems will not allow a place with explosive growth in commerce and political action to remain entirely outside the reach of the political will of the people.

Others think that regulatory business can go on as usual, with regulators in nearly 200 countries and thousands of subordinate entities asserting extraterritorial jurisdiction over Internet-linked conduct occurring halfway around the world. That risks turning the regulators into latter day King Canutes who demonstrated the limitations of law by commanding the tide not to come in.

The best basic solution to the theoretical challenge presented by difficulties in localizing conduct in Internet markets is the concept of targeting.⁶⁴ Targeting means that a market participant directs its sales or purchasing activity to a particular jurisdiction. An Internet merchant wishing to reduce uncertainty can target only one or a few jurisdictions as to which it understands and accepts the legal regime.⁶⁵ Or, if such a participant wishes to avoid the requirements or enforcement mechanisms of a particular sovereign, it can exclude or "detarget" that jurisdiction. A growing number of judicial decisions in the United States,⁶⁶ and guidance issued by administrative agencies such as the Securities and Exchange Commission⁶⁷ are refining formulas for targeting and detargeting.

The targeting concept avoids the uncertainty associated with subjecting an Internet merchant to the jurisdiction of any place in which its Web site is visible⁶⁸--usually everyplace in the world. On the other hand, extensive de-targeting has the effect of excluding consumers in detargeted states from the benefits of global e-commerce.

Targeting is a way of solving some of the jurisdictional dilemmas, but it is not a complete solution. Moreover, targeting works better as a jurisdictional concept for adjudicatory jurisdiction than for prescriptive jurisdiction and choice of law. Even here, however, it is not unreasonable to suppose that if one targets the population of Minnesota as potential customers of one's Internet casino that it is reasonable for any court confronted with a controversy to apply Minnesota law.

The Hague judgment convention negotiations provide an opportunity to craft textual language implementing the targeting concept. But detailed rules for targeting and other solutions to the diminished relevance of physicality need to bubble up. The World is not yet ready to adopt a single solution for Internet jurisdiction problems. It needs continued experimentation and discussion around the globe and within the United States, including both public and private sector experimentation.
 

D. Power of Contracts Contractual choice of forum and of law can reduce jurisdictional uncertainty.⁷⁰ Contract is proving its power by supporting a rich assortment of new legal institutions of a hybrid character--ICANN, credit card chargebacks, eBay's escrow and insurance arrangements, and various Cyber tribunals.

It is in the economic interest of merchants as well as consumers to resolve disputes because of merchant desire to have happy customers that come back and pass the word favorably to their friends.

E. Hybrid Regulatory Frameworks The geographic limitations on new application and enforcement apply to public institutions exercising sovereign powers; they do not apply to private entities.⁷¹ Accordingly, jurisdictional uncertainties associated with transnational commerce on the Internet can be reduced when rules are made and enforced by private rather than public institutions.⁷²

The traditional difficulty with private regulation is that it may not express the political consensus of democratic societies with respect to values to be enforced⁷³ or the balance of power to be struck between stronger and weaker market participants.⁷⁴ Few legal systems rely entirely on private regulation to protect consumers and small businesses.

Combining the jurisdictional strengths of private regulation, and the greater political legitimacy of public regulation requires development of new hybrid frameworks. Public law can set minimum, and relatively general, standards of conduct and provide backup enforcement, representing the boundaries of a space within which a multiplicity of private regulatory regimes can work out detailed rules and first-level dispute resolution and rule enforcement machinery.⁷⁵

The relatively general character of the public law rules makes it easier to achieve consensus among multiple sovereigns with different legal traditions and varying political alignments, while also trimming the edges off the distribution⁷⁶ of private regulatory regimes that might be insufficiently protective of weaker parties or too restrictive of competition and innovation in the absence of the public law framework.

The space for private regulation allows not only the benefits of contractually based jurisdiction that easily crosses national boundaries; it also allows for a closer fit between regulatory details and technological and market realities, enlisting the energy of competition and innovation in the service of regulatory efficacy.⁷⁷

Three promising examples of hybrid approaches are ICANN's regulation of Internet domain name assignment,⁷⁸ and associated resolution of controversies between domain name holders and trademark holders; the acceptance by the United States Government and the European Commission of a safe harbor for privacy protection allowing basic norms for privacy protection to be extended through private self regulatory regimes;⁷⁹ and credit card charge back mechanisms, which implicitly represent a cheap and readily available dispute resolution mechanism for virtually all of the credit card based Internet commerce.⁸⁰

As someone who has served as a panelist under the ICANN dispute resolution process, the author finds the process to be effective, fair, and promising.

The agreement negotiated between the Department of Commerce and the European Commission to provide a so-called privacy safe harbor is another promising example of a new kind of international institution. It is a strong example of hybrid regulation, where public law provides a general framework with some minimum standards and some backup enforcement, but leaves most of the details to be worked out through private self-regulation.

And there also are some promising beginnings with respect to informal private dispute resolution mechanisms that are so badly needed for these small-value transactions like the hypothetical furniture sale from Thomasville to Tirana. One of the most pervasive dispute resolution techniques in modern commerce is the credit card chargeback mechanism. Most consumers and small businesses that do business already through the Internet's World Wide Web rely upon it, at least subconsciously. More work is necessary to understand the promise of the credit card chargeback mechanism as a successful private dispute resolution mechanism to encourage further expansion of e-commerce.

F. Enlisting Intermediaries in Support of Self Regulation Hybrid regulation and other contractual solutions to jurisdictional uncertainty rely on intermediaries to development and enforce rules.⁸¹ Private regulatory regimes are a form of government. As such, they must have legislators, judges, and sheriffs.⁸²

ICANN, the new intermediary for the domain name regulatory regime, issues rules for issuance and retention of domain names and for adjudication of trademark/domain name controversies.⁸³ New dispute resolution intermediaries, such as administrative panels under the WIPO dispute resolution rules⁸⁴ adjudicate these controversies under the ICANN rules. Other intermediaries -- domain name registrars -- enforce administrative panel decisions by revoking or transferring domain names.⁸⁵

In the credit card charge back regime, credit card issuers are intermediaries charged with adjusting disputes between merchants and consumers, declining to credit merchants who fail to deliver promised merchandise or services, and ultimately revoking credit for consumers who refuse to pay for merchandise or services delivered pursuant to agreement.⁸⁶

Private privacy regulatory regimes depend upon intermediaries to revoke membership or seals that immunize members or holders from direct action by public authorities.⁸⁷ The MAPS regime, considered in § IV, develops and enforces rules against spam.

The role of these intermediaries is different from the role of unwilling intermediaries, such as Internet service providers or telecommunications entities drawn into a regulatory role by the threat of liability imposed on them for the conduct of users of their services. After all, intermediaries whose primary purpose is rulemaking, enforcement, and dispute resolution have volunteered for these tasks and are unlikely to curtail their investment because they get what they ask for.

Four kinds of intermediary roles exist. The first role is performed by seal organizations that require members and users of their seals to disclose member policies and then adhere to them. The intermediary performs no rulemaking function, but simply ensures that members have followed their own rules. This role involves little risk of private censorship because both members and intermediaries simply follow their own rules. The second role involves intermediaries who perform obligations to enforce rules adopted by public institutions. While there are transaction costs that may, at the margin, exclude some potential intermediaries, there is little risk of private censorship. The third and fourth role involves the greatest risk of private censorship and exclusion of risky content and commerce. The third role involves intermediaries who are subject to liability for harm caused by content originators. To reduce the risk of liability, intermediaries performing the third role have a strong incentive to exclude any content or commerce that poses a risk. The fourth role involves intermediaries, such as ICANN or MAPS, which develop and enforce their own rules. The rules, or their application, may raise concerns about lack of accountability, arbitrary enforcement, or anticompetitive effects.

Whenever private intermediaries perform a rulemaking function, private government always has raised questions about legitimacy and fairness.⁸⁸

How can accountability be assured in rulemaking? What is the right balance between majority will and minority rights? When constituencies are too large for the members to express themselves individually, what are permissible representation arrangements? These are the questions that always challenge makers of constitutions for public institutions.⁸⁹ They also challenge the designers of private regulatory regimes, and may yet wreck ICANN⁹⁰ and MAPS.⁹¹

What are the rules for private dispute resolution? Is the impartiality of decisionmakers assured? Did both parties receive appropriate notice and opportunity to participate? Were appropriate rules of evidence applied? Did the record developed in the formal proceeding justify the decision? These are questions that regularly challenge writers of civil practice statutes and rules of civil procedure and evidence.⁹² These same questions confront designers of private arbitration machinery,⁹³ as well as the designers of the virtual magistrate,⁹⁴ the WIPO dispute resolution machinery,⁹⁵ MAPS, and the plethora of other virtual dispute resolution bodies connected with e-commerce.⁹⁶ Constitutional controversies in developing the framework for democratic rulemaking and for fair adjudication do not evaporate when these governmental functions are privatized. The controversies simply occur in private arenas rather than public ones. In addition they continue in public arenas, determining the willingness of public institutions to cede power for private regulatory networks.⁹⁷

G. Other Forms of Trust Enhancement Commerce depends not only on formal legal rules and the availability of formal dispute resolution machinery. It also-and sometime predominantly-depends upon informal mechanisms of enhancing trust. Personal and familial relationships make transactions possible in many local markets. Traditional transnational business mechanisms, such as standby letters of credit,⁹⁸ performance bonds,⁹⁹ and accounts receivable financing,¹⁰⁰ oiled the wheels of international business transactions long before the Internet.

New enhancing mechanisms also facilitate electronic commerce. eBay has been especially innovative in this regard, offering online consumer reports of seller reliability,¹⁰¹ available at the click of a mouse in the same space where a transaction can be consummated; escrow mechanisms to assure seller and buyer performance;¹⁰² and private insurance to compensate for nonperformance.¹⁰³ These mechanisms were developed and deployed unilaterally, motivated by an entrepreneurial desire to enhance buyer and seller trust in a new kind of auction space.

IV. The MAPS Controversy

Controversy over the "Mail Abuse Prevention System" ("MAPS")¹⁰⁴ raises fundamental questions about the viability of private self-regulation outside a public law framework. MAPS is a nonprofit California corporation that allows ISPs and email service providers to exclude spam¹⁰⁵ from their systems. MAPS maintains a list of IP addresses, known as the "Realtime Blackhole List" ("RBL")," and permits MAPS subscribers automatically to exclude from their systems any email message originating from one of the listed IP addresses. Some 20,000 ISPs, corporations, government agencies and individuals, comprising some 40% of the Internet, subscribe to MAPS.¹⁰⁶

MAPS has published rules, known as "Basic Mailing List Management Principles for Preventing Abuse" (BMLMPPA"),¹⁰⁷ which purport to state Internet standards and best current practices for proper mailing list management. Among other things the rules require use of a "double opt-in procedure"¹⁰⁸ before mail can be sent to a particular addressee. Complaints about mailers not complying with the rules result in the mailer being put on the RBL,¹⁰⁹ and owners of IP addresses on the RBL can be removed only by satisfying MAPS they will comply in the future.¹¹⁰

In August, 2000, Harris Interactive, Inc., a public opinion survey organization used MAPS and a number of its subscribers in the United States District Court for the Western District of New York.¹¹¹ The complaint alleges tortuous interference with business and contractual relations,¹¹² commercial disparagement,¹¹³ negligent breach of a duty to administer the RBL in a fair and evenhanded manner,¹¹⁴ violation of New York general business law prohibiting deceptive and confusing consumer communications,¹¹⁵ defamation per se,¹¹⁶ conspiracy to interfere tortiously with plaintiff's business,¹¹⁷ federal antitrust violations for concerted refusal to deal,¹¹⁸ attempted monopolization,¹¹⁹ monopolization,¹²⁰ conspiracy to monopolize by refusal to deal,¹²¹ forming and operating a trade association that unreasonably restricts competition,¹²² and violation of the New York "Donnelly Act."¹²³ The suit requests compensatory damages in excess of $50 million and punitive damages.

The Harris lawsuit reveals the dilemmas faced by a self-regulatory intermediary. The lawsuit alleges that MAPS placed Harris on the RBL without good cause,¹²⁴ and without reasonably investigating facts or giving Harris an opportunity to be heard,¹²⁵ that it promulgated standards that interfered with legitimate communications,¹²⁶ and that it imposed conditions for removal from the RBL that were arbitrary and unreasonable.¹²⁷ The suit thus challenges the content of the private rules, claims absence of due process in applying them, and illegality in the sanctions imposed for violating the rules.

One can only speculate as to possible outcomes of the litigation. One obvious possibility is that Harris will lose, and the MAPS self-regulatory regime be allowed to continue according to the desires of its owners and subscribers. Another possibility is that the regime will be shut down under an injunction or because of the magnitude of damages imposed or sought. Or, the court might impose conditions on continued operation of the regulatory regime, analogous to those imposed in the past on private standard-setting organizations,¹²⁸ requiring substantive support for the content of rules and due process in their application and enforcement. Finally, the controversy, and others like it may stimulate legislative action to channel such private self-regulatory activities.

V. Conclusion

American leadership has been essential to encourage development of these new international institutions. The Clinton-Gore administration deserves credit for taking leadership, initially expressed in the Framework for Electronic Commerce issued in 1997. It not only was a sound statement of policy, but it worked. Against all odds and lots of doubts, the US has persuaded people who grew up in the European civil law tradition to embrace the idea of private self-regulation for certain parts of the Internet.

But even if American leadership has been successful in the short term in providing breathing space for electronic commerce, it will not be successful in the long term if the ideas don't work. Proponents of self-regulation and hybrid approaches have to make sure that they work.

There have been promising beginnings, there are promising initiatives, some of which are bearing fruit, but now the challenge must be met as much by Visa and America Express and BBB Online and Trustee and the Internet Privacy Alliance, all private initiatives, as by the Federal Trade Commission and French consumer protection authorities.

The new initiatives for private self-regulation must provide real compliance and enforcement; adopt rules that are linked to broadly accepted norms for privacy protection, consumer protection, and respect for intellectual property; and must have some kind of third-party audit mechanism to reassure the people in America and elsewhere that these private self-regulatory regimes are working.

The legislative process can play a very important political role in serving as kind of prod to remind advocates of self-regulation that they must step up to the plate, and turn it into a reality. And more than that, when the Congress and State legislatures and Parliaments in other countries consider legislation, they always should consider the possibility of legislation that includes a safe harbor, so that private institutions who know the Internet the best and who are themselves the innovators in a constantly changing environment, can be given the opportunity to work out the details within a broad public law framework that is publicly acceptable.

Tony Blair began the ABA Annual Meeting in London by talking about the rule of law as the "foundation of our common bond," referring to the common bond between British and American lawyers.

Jurisdiction defines the extent of the rule of law

The Internet exemplifies the markets and political arenas of the 21st Century

The dialog put in motion by the the Hague Conference negotiations puts all of us at the center of defining what a rule of law means for the new century.

Endnotes

1. Dean and Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology, 565 West Adams Street, Chicago, IL 60661, (312) 906-5010 hperritt@kentlaw.edu. Member of the bar, Virginia, Pennsylvania, District of Columbia, Maryland, Illinois, United States Supreme Court. The author appreciates continuing contributions of intellectual capital from his friends Stuart P. Ingis, Margaret G. Stewart, and Ronald L. Plesser on the subjects addressed in this article.
2. See § II(B).
3. See Henry H. Perritt, Jr., Dispute Resolution in Cyberspace: Demand for New Forms of ADR, 15 OH. ST. J. DIS. RES. 675 (2000) ; Henry H. Perritt, Jr., Jurisdiction and the Internet: Basic Anglo/American Perspectives, Internet Law and Policy Forum, Jurisdiction: Building Confidence in a Borderless Medium, Montréal (26-27 July 1999), http://www.ilpf.org/events/jurisdiction2/presentations/perritt_pr/perrittpr.htm; Henry H. Perritt, Jr., The Internet is Changing the Public International Legal System, 88 KY L. REV. 885 (2000); Henry H. Perritt, Jr., International administrative law for the Internet: mechanisms of accountability, 51 ADMIN. L. REV. 871 (1999); Testimony by Henry H. Perritt, Jr., Before the subcommittee on courts and intellectual property, Committee on the Judiciary, United States House of Representatives, 29 June 2000, http://www.house.gov/judiciary/perr0629.htm (visited 3 Sept. 2000); Henry H. Perritt, Jr., Testimony, Department Of Commerce & Federal Trade Commission, Joint Workshop on Alternative Dispute Resolution for Online Consumer Transactions, (6 June 2000), http://www.ftc.gov/bcp/altdisresolution/transcripts.htm (visited 3 Sept. 2000); Henry H. Perritt, Jr., Economic and Other Barriers to Electronic Commerce, ___ U.Pa. J. Int'l Econ. L. ___ (2001); Henry H. Perritt, Jr. & Margaret G. Stewart, False Alarm: European Privacy Law and International Jurisdiction, 51 FED. COMM. L. J. 811 (1999); Henry H. Perritt, Jr., Law and the Information Superhighway (Aspen Law and Business, 1996 & Supp. 2000).
4. See generally Internet Domain Name Administration:A Step Toward Global Internet Governance, Address to the Center for Information Law and Policy Conference, Washington DC, 8 October 1997, Christopher Wilkinson, European Commission, Brussels, http://www.ispo.cec.be/eif/d ns/dnsadmin.html; See also, Henry H. Perritt, Jr., Cyberspace Self-Government: Town-Hall Democracy or Rediscovered Royalism, 12 Berkeley Tech. L. J. 413 (1997).
5. http://www.hcch.net/e/workprog/jdgm.html.
6. See, e.g. Convention relating to civil procedure 1 March 1954; Convention relating to the settlement of the conflicts between the law of nationality and the law of domicile 15 June 1955; Convention concerning the recognition of the legal personality of foreign companies, associations and institutions 1 June 1956; Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions 15 November 1965; Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 15 November 1965; Convention on the Choice of Court 25 November 1965; Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 18 March 1970.
7. http://www.hcch.net/e/workprog/jdgm.html (draft convention and associated analyses).
8. http://www.ali.org/ali/Intl_Ju ris_Proj.htm (analyses of Hague Conference efforts by ALI)
9. In an experts conference convened by the Hague Conference in Ottawa in 2000, the author suggested that the draft convention exception for choice of forum clauses enforceability for consumer contracts could be conditioned on the consumers not having available to them an acceptable private dispute resolution alternative.
10. The discussion in this section refers to the preliminary draft convention on jurisdiction and foreign judgments in civil and commercial matters, adopted by the special commission on 30 October 1999.
11. Hague Draft Art. 1 (1).
12. Hague Draft Art. 1 (2)(g).
13. Id. Art. 1 (2)(h).
14. Id. Art. 1 (2)(e).
15. Hague Draft Chap. II (jurisdiction); Id. Chap. III (enforcement of judgments).
16. Hague Judgments Convention Art. 3 (1).
17. Id. Art. 3 (2).
18. Id. Art. 4.
19. Hague Draft Art. 9.
20. See Chapter 12.
21. Hague Draft Art. 4.
22. Hague Draft Art. 5.
23. Id. Art. 5.
24. Id., Art. 6.
25. Id. Art. 7 (1).
26. Id. Art. 7 (2).
27. Id. Art. 8 (1)(a).
28. Id. Art. 8 (1)(b).
29. Id. Art. 9.
30. Id. Art. 10 (1).
31. Id., Art. 10 (4).
32. Hague Draft Art. 12.
33. Hague Draft Art. 12 (4).
34. Hague Draft Art. 12 (4).
35. Id., Art. 12 (4).
36. Id. Art. 18 (2) (i).
37. Id. Art. 18 (2)(b) & (c).
38. Id. Art. 18 (2)(d).
39. Id. Art. 18 (2)(e).
40. Id. Art. 18 (2)(f).
41. Id. Art. 18 (2)(j).
42. Id. Art. 17 (authorizing non prohibited of jurisdiction under national law); Id. Art. 24 (excluding Article 17 judgments from mandatory recognition and enforcement).
43. Id. Art. 25.
44. Id. Art. 26.
45. Id. Art. 27 (2).
46. Id. Art. 28 (1).
47. Id. Art. 28 (2).
48. Id. Art. 33 (1).
49. World Wide Volkswagen v. Woodson, 444 U.S. 286, 295 (1980) (forseeability of contacts with forum state insufficient to support personal jurisdiction; contacts must be purposeful).
50. 17 U.S.C. § 512 (safe harbor for intermediaries potentially liable for copyright infringement); 15 U.S.C. § 6503 (Children's Online Privacy Protection Act - safe harbor); 64 Fed. Reg. 59888 (Nov. 3, 1999), codified at 16 C.F.R. Pt. 312 (FTC final rules implementing safe harbor provisions of act).
51. EEJ-NET towards a European Extra-Judicial Network for resolving consumer disputes - Lisbon Conference on 5-6 May 2000, http://europa.eu.int/comm/consumers/policy/developments/acce_just/a cce_just07_en.html (visited 3 Sept. 2000).
52. European Commission {DG XV], Judging industry self-regulation: when does it make a meaningful contribution to the level of data protection in a third country? (1998) (visited Sept. 3, 2000), http://europa.eu.int/comm/internal_market/en/media/dataprot/wpdocs/wp7en.htm .
53. See Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F.Supp.2d 907 (D.Or. 1999) (explaining Zippo continuum and suggesting that jurisdiction exists over Web sites only when the forum state is targeted).
54. Targeting is not cost free. According to an estimate reported by Ronald L. Plesser, Esq. at the July, 2000 meeting in London, it costs $1 million per country to evaluate legal procedure and the content of laws that might be applied to Internet based e-commerce.
55. Miller v. Asensio, --- F.Supp.2d ----, 2000 WL 807620 (D.S.C., Jun 16, 2000) (characterizing cases as uniformly rejecting jurisdiction based on availability of passive Web site; citing Zippo)
56. Securities and Exchange Commission, Interpretation; Use of Electronic Media: April 28, 2000 [Release Nos. 34-42728, File No. S7-11-00]. File name: 34-42728.htm; Interpretation; Statement of the Commission Regarding Use of Internet Web Sites to Offer Securities, Solicit Securities Transactions, or Advertise Investment Services Offshore. March 23, 1998, [Release No. 33-7516] File name: 33-7516.htm, http://www.sec.gov/enforce/intrelrl.htm.
57. Inset Systems, Inc., v. Instruction Set, Inc., 937 F.Supp. 161 (D.Conn. 1996) (finding jurisdiction based on availability of Web site in forum state)..
58. Remarks by Daniel Bodansky, The Role Of International Law In Human Rights Litigation In The United States, 82 Am. Soc'y Int'l L. Proc. 456, 470 (1998) (even though international law's limitations on adjudicative jurisdiction apply only to states, federal courts strive to interpret domestic jurisdictional statutes and rules to comport with international law); Kathleen Hixson, Note Extra Territorial Jurisdiction Under The Third Restatement Of Foreign Relations Law Of The United States, 12 Fordham Int'l L.J. 127, 130-131 (1988) (explaining international law's limitations on jurisdiction as limitations on states).
59. See Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View From Liberal Democratic Theory, 88 Calif. L. Rev. 395 (2000).
60. European Commission, Data Protection Working Party, Working Document:Judging industry self-regulation: when does it make a meaningful contribution to the level of data protection in a third country? (14 Jan. 1998), http://europa.eu.int/comm/internal_market/en/media/dataprot/wpdocs/wp7en.htm .
61. See Henry H. Perritt, Jr., The Internet is Changing the Public International Legal System, 88 Ky. L. Rev. 885, 931 (2000).
62. A set of regulatory regimes can be considered as distributed over a domain ranging from least protective to most protective. "Tails" in a statistical distribution refer to the extremes: in the example, the handful of most protective regimes would be one tail, and the handful of least protective regimes would be the other tail. "Trimming the tails" signifies eliminating the extremes and retaining only those that are moderately protective.
63. See Henry H. Perritt, Jr., Cyberspace Self-Government: Town-Hall Democracy or Rediscovered Royalism, 12 Berkeley Tech. L. J. 413 (1997).
64. See Henry H. Perritt, Jr., The Internet is Changing the Public International Legal System, 88 Ky. L. Rev. 885, 940 (2000).
65. Id., at 932.
66. Henry H. Perritt, Jr., Dispute Resolution in Cyberspace, 15 Ohio St. J. Disp. Res. 675 (2000).
67. In the tax area, governments always have used financial intermediaries-employers, banks, and retailers-to collect taxes
68. See Henry H. Perritt, Jr., Cyberspace Self-Government: Town-Hall Democracy or Rediscovered Royalism, 12 Berkeley Tech. L. J. 413 (1997).
69. See ICANN UDRP, http://www.icann.org/udrp/udrp.htm
70. World Intellectual Property Organization Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules") (In effect as of December 1, 1999) http://arbiter.wipo.int/domains/rules/supplemental.html.
71. "K. Domain-Name Dispute Resolution. During the term of this Agreement, Registrar shall have in place a policy and procedure for resolution of disputes concerning SLD names. In the event that ICANN adopts a policy or procedure for resolution of disputes concerning SLD names that by its terms applies to Registrar, Registrar shall adhere to the policy or procedure." ICANN Registrar Accreditation Agreement § II(K) (Approved November 4, 1999) (Posted November 9, 1999) http://www.icann.org/nsi/icann-raa-04nov99.htm
72. Henry H. Perritt, Jr., Dispute Resolution in Cyberspace, 15 Ohio St. J. Disp. Res. 675 (2000).
73. http://www.truste.org/; http://www.bbbonline.org/
74. Jody Freeman, The Private Role In Public Governance 75 N.Y.U. L. Rev. 543 (2000) (proposing a conception of governance as a set of negotiated relationships between public and private actors); Natanel, supra.
75. Alexander Hamilton et al, Federalist Papers (briefs for ratification of U. S. Constitution); Catherine Drinker Bowen, Miracle at Philadelphia (1966) (story of Constitutional Convention).
76. Preliminary Report Meeting of the ICANN Board in Yokohama 16 July 2000, http://www.icann.org/minutes/prelim-report-16jul00.htm (reporting on changes in ICANN bylaws to resolve disagreements about at-large members and selection of board members by them), http://www.icann.org/mbx/selfnomination/ (discussion forum on at-large membership selection and representation).
77. See § IV.
78. Lauren Robel, Stanford Law Review July, 1994 Symposium on Civil Justice Reform Fractured Procedure: The Civil Justice Reform Act Of 1990, 46 Stan. L. Rev. 1447, 1467 (1994) (reporting on controversy over balance between local rules and Federal Rules of Civil Procedure); Carl Tobias, Collision Course In Federal Civil Discovery, 145 F.R.D. 139, 140 (1993) (reporting on controversies over content of civil discovery and sanctions rules).
79. Publicis Communication v. True North Communications, Inc., 206 F.3d 725 (7th Cir. 2000) (affirming judicial confirmation of arbitration order under New York Convention); Lander Co., Inc. v. MMP Investments, Inc., 107 F.3d 476 (7th Cir. 1997) (Posner, J.) (discussing relationship between New York Convention and domestic U.S. arbitration).
80. www.vmag.com
81. www.wipo.org (supplemental dispute resolution rules).
82. See, e.g. http://www.internetneutral.com/, http://webdispute.com/, http://www.ilevel.com/ (all offering dispute resolution services).
83. Mr. Hollings, remarks on introduction of S. 2606. A bill to protect the privacy of American consumers, The Consumer Privacy Protection Act, Statements On Introduced Bills And Joint Resolutions, 146 Cong. Rec. S4297-02 (May 23, 2000) (reviewing arguments for and against self-regulation of Internet privacy).
84. San Diego Gas & Electric Co. v. Bank Leumi,50 Cal.Rptr.2d 20, 23 (Cal. Ct. App. 1996) (referring to historical importance of standby letters of credit).
85. U.S. Fidelity and Guar. Co. v. Braspetro Oil Services, Co., 199 F.3d 94, 98 (2d Cir 1999) (describing performance bond)
86. Mara E. Trager, Note, Towards A Predictable Law On International Receivables Financing: The UNCITRAL Convention, 31 N.Y.U. J. Int'l L. & Pol. 611 (1999) (describing accounts receivable financing).
87. www.ebay.com (customer assurance page, describing customer reports).
88. www.ebay.com (customer assurance page, describing escrow arrangements).
89. www.ebay.com (customer assurance page, describing insurance option).
90. http://maps.vix.com
91. Spam is unsolicited email broadcast to hundreds or thousands of email addresses.
92. Harris Interactive, Inc. v. Mail Abuse Prevention System, No. 00-CV-6364L(F) (W.D.N.Y. cplt filed Aug. 9, 2000) [hereinafter "Harris Complaint"] at para. 50. MAPS subscribers include Microsoft, BellSouth, Qwest, Micron, and AltaVista. Id. at para. 62.
93. Harris complaint appendix; http://maps.vix.com.
94. The double opt-in procedure requires a recipient to indicate affirmatively that it wishes to be on a mailing list and then to respond affirmatively to an email message sent to confirm the subscription. BMLMPPA Rule 1; Harris Complaint para. 47.
95. Harris Complaint para. 49.
96. Harris Complaint para. 51.
97. Harris Interactive, Inc. v. Mail Abuse Prevention System, No. 00-CV-6364L(F) (W.D.N.Y. cplt filed Aug. 9, 2000) [hereinafter "Harris Complaint"].
98. Harris Complaint paras. 77-82 (First cause of action); id. at paras. 114-119 (Seventh Cause of Action); id. at paras. 130-135 (Tenth Cause of Action).
99. Id. at paras. 83-88 (Second cause of action); id. at paras. 120-124 (Eighth Cause of Action).
100. Id. at paras. 89-93 (Third Cause of Action)
101. Id. at paras. 94-98 (Fourth Cause of Action).
102. Id. at paras. 99-105 (Fifth Cause of Action); id. at paras. 125-129 (Ninth Cause of Action).
103. Id. at paras. 106-113 (Sixth cause of action).
104. Id. at paras. 136-142 (Eleventh Cause of Action).
105. Id. at paras. 143-146 (Twelfth Cause of Action).
106. Id. at paras. 147-149 (Thirteenth Cause of Action).
107. Id. at paras. 150-152 (Fourteenth Cause of Action).
108. Id. at paras. 153-157 (Fifteenth Cause of Action).
109. Id. at paras. 158-159 (Sixteenth Cause of Action).
110. Harris Complaint para. 92(4).
111. Id. at para. 60.
112. Id. at para. 91.
113. Id. at para. 64.
114. See Radiant Burners, Inc. v. Peoples Gas Light & CokeCo., 364 U.S. 656, 658 (1961) (arbitrary and capricious application of standard by trade association violated Sherman Act).