Copyright (c) 2008 Bond University All rights reserved. http://epublications.bond.edu.au/dan_svantesson Recent documents in Dan Svantesson en-us Thu, 11 Sep 2008 16:18:05 PDT 3600 http://epublications.bond.edu.au/law_pubs/163 http://epublications.bond.edu.au/law_pubs/163 Mon, 29 Oct 2007 23:01:42 PDT In order to determine why certain forms of Internet communication challenge traditional models of regulation, we must identify which characteristics make them different to other forms of communication. Focusing on conflict of laws, it is submitted that regard must be had to the characteristics of borderlessness, geographical independence, limited language dependence, one-to-many communication, low threshold information distribution, widely used, portability, lack of reliable geographical identifiers, reactive nature, lack of central control and convergence. These characteristics cause an imbalance between the ease of cross-border contacts on the one hand, and the difficulty of solving cross-border disputes on the other. Furthermore, certain conflict of laws rules have lost their logical bases, and those active on the Internet may lack notice of the applicable law and which forums they are exposed to. In addition, the existing gap between reasonable grounds for jurisdictional claims and reasonable grounds for recognition and enforcement has been widened. Dan Jerker B. Svantesson http://epublications.bond.edu.au/law_pubs/132 http://epublications.bond.edu.au/law_pubs/132 Thu, 23 Aug 2007 21:54:46 PDT Introduction:Imagine trying to access you favourite website, and when doing so, being greeted by a message along the lines of: "We know you are in Sydney (Australia). This website is only intended for the people of Norway."While having gained little attention so far, technologies making such a scenario possible already exist, are already in use, and the spread of their use is rapidly increasing. Although the so-called geo-location technologies that make this kind of geographical 'borders' possible can be circumvented, we are doubtlessly witnessing the Internet undergoing a remarkable change - from the world's first and only 'borderless' communications medium to something that much more resembles our physical world divided by borders of different kinds. This has enormous consequences as we are losing one of the greatest benefits of the Internet, its ability to allow people to communicate across borders.This article examines how, and to what extent, these technologies work. Further, the legal implications of these technologies are discussed, and a few observations are made as to the likely effect these technologies will have on the future structure of the Internet. Dan Jerker B Svantesson http://epublications.bond.edu.au/law_pubs/99 http://epublications.bond.edu.au/law_pubs/99 Wed, 23 May 2007 00:03:51 PDT The relation between private international law and public international law has gained little attention. Indeed, in legal education, the two disciplines are treated as two completely separate subjects and, in my experience, comparisions of the two ordinarily fall outside the curriculum. This practice has always been unfortunate, but is becoming untenable in light of Internet technology. When the Australian High Court had to decide whether a Victorian court could claim jurisdiction over a US publishing company based on allegedly defamatory material available online, it was faced with essentially the same dilemma as a French court was when it had to decide whether or not to claim criminal jurisdiction over a US web auctioneer-private international law and public international law face the same problems in the Internet context.This article makes some observations as to the connections between public international law and private international law. In doing so, particular reference is made to the context of the Internet. Dan Jerker B. Svantesson http://epublications.bond.edu.au/law_pubs/98 http://epublications.bond.edu.au/law_pubs/98 Tue, 22 May 2007 23:50:40 PDT Location may determine whether a person falls within the jurisdiction of a particular state, it may determine which law is applicable to a person's conduct, and it may determine whether or not a judgement can be successfully enforced. Indeed, it could be said that, as far as private international law is concerned, location almost always matters. However, until recently it was often said to be impossible to link those active on the Internet to a geographical location ("geo-identification"). This is all changing. A recent survey revealed that a large number of companies, particularly in the US, seek to identify the geographical location of those who visit their websites. Further, the courts' perception of the possibility (in some cases) or impossibility (in other cases) of geo-identification has been determinative in several court cases. This article aims at providing a basic overview of so-called geo-location technologies, their technical structure and their legal and regulatory implications. Dan Jerker B. Svantesson http://epublications.bond.edu.au/law_pubs/96 http://epublications.bond.edu.au/law_pubs/96 Tue, 22 May 2007 19:53:17 PDT Since its 'birth' approximately 15 years ago, the World Wide Web (WWW) has been viewed as borderless, and this 'borderlessness' has been seen as a major problem in relation to the application of private international law rules to WWW activities. However, recent technological advances let operators of Internet facilities identify the geographical location of those they interact with, enabling them to make their content available in certain locations only. These geo-location technologies can be seen to solve many of the legal problems associated with the Internet's borderlessness.Having outlined what features of the WWW make it borderless, having noted how current rules of private international law are 'effect-focused', and having discussed the technologies potentially eliminating this borderlessness, the paper examines the extent to which the Internet (particularly the WWW) still give rise to private international law issues. Dan Jerker B. Svantesson http://epublications.bond.edu.au/law_pubs/63 http://epublications.bond.edu.au/law_pubs/63 Sun, 04 Feb 2007 20:58:07 PST Until recently, it was frequently said to be impossible or at least pointless to attach significance to 'location' in the online arena. Indeed, the impossibility of linking those active on the Internet, to a geographical location was seen as a distinctive feature of the Internet. However, this is all changing. A recent survey revealed that a large number of companies, particularly in the U.S., seek to identify the geographical location of those who visit the companies' Web sites. While it is still true that Internet communication largely lacks reliable geographical identifiers, several non-technical methods are applied to cater for the need to know the location of those active on the Internet. Furthermore, so-called geolocation technologies are becoming increasingly accurate, and while unlikely to ever be one hundred percent accurate, may, in the near future or perhaps already today, be accurate enough for legal purposes. Yet the questions that these developments give rise to have gained surprisingly little attention in literature. Against this background, the article examines the different ways in which a Web site operator can identify the geographical location of those accessing its Web site, and the legal implications of such identification.While a range of purposes, such as fraud detection, authentication, content targeting, security and network efficiency has been envisaged for geo-identification in general, and geo-location technologies in particular, it is primarily the use of geo-location teclmologies for conditioning access and legal compliance that is of concern for this article.Finally by way of introduction, for the purpose of an overview such as the one provided in this article, it is useful to draw a number of distinctions. First, it should be acknowledged that geo-Iocation technologies are not the only ways in which a Web site operator may seek to identify the geographical location of the access-seeker. I therefore distinguish between hard protection provided by geo-location technologies and the soft protection provided by alternative non-technical means. Secondly, since the level of complexity of different geo-location technologies varies greatly, I draw a distinction between sophisticated geo-location technologies and unsophisticated geo-location technologies. Before these different categories are discussed in detail, a few more words should, however, be said about the context in which geo-identification is relevant. Dan Jerker B. Svantesson http://epublications.bond.edu.au/law_pubs/62 http://epublications.bond.edu.au/law_pubs/62 Tue, 16 Jan 2007 21:51:34 PST This article examines the doctrine of forum non conveniens as applied in Hong Kong, Australia, the US and Sweden, and considers the criticism that has been raised against the doctrine. The author argues that some of this criticism is valid, some of it is valid only in relation to some countries' application of the doctrine, and some of the criticism is unfounded. The author concludes that the test applied in Hong Kong and most other common law jurisdictions - the clearly or distinctly more appropriate forum test - is the better option. The author goes on to make a number of other recommendations regarding the application of the doctrine, including the suggestion that the doctrine would benefit from being implemented in legislation. Dan Jerker B. Svantesson http://epublications.bond.edu.au/law_pubs/60 http://epublications.bond.edu.au/law_pubs/60 Thu, 11 Jan 2007 18:06:33 PST This article discusses the background to, and main features of, the Convention on Exclusive Choice of Court Agreements. Further, it highlights the lack of protection afforded to weaker parties in the current convention text of April 2004 (The full Convention text is available at: http://www.cptech.org/ecom/jurisdiction/hague-100e.doc). Suggestions for improvement are provided in this respect, and some thoughts are expressed about the direction of the future work of the Hague Conference on Private International Law. Dan Jerker B. Svantesson http://epublications.bond.edu.au/dan_svantesson/3 http://epublications.bond.edu.au/dan_svantesson/3 Thu, 11 Jan 2007 17:49:23 PST Currently there is a proposal for a convention regulating jurisdiction and enforcement of international judgments -- the Hague Convention. In 1992, when the work was initiated, no one could foresee the enormous growth of the Internet and the impact this growth has had on the number of contacts occurring between individuals, companies and organizations from different countries. The Internet has considerably complicated the completion of the Convention, but it also augments the importance of the Convention. Concerns have been raised regarding several issues within the Convention, one being the question of consumer contracts. There has been some debate about how Article 7, regulating consumer contracts, should work in relation to the particular difficulties introduced by E-commerce. This article explores these questions and the issues involved Dan Jerker B. Svantesson http://epublications.bond.edu.au/dan_svantesson/2 http://epublications.bond.edu.au/dan_svantesson/2 Thu, 11 Jan 2007 17:26:56 PST This article concerns the issue of jurisdiction over Internet defamations de lege ferenda. Article 10 of the proposed Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters constitutes the point of departure for the analysis. The main aim of the article is to show that the current situation is unhealthy and that we need to make a decision -- regulate the Internet or leave it unregulated. Furthermore, the article attempts to demonstrate why the current draft of the proposed Hague Convention does not deal with Internet defamation in an adequate manner. In that context, a suggestion for how Article 10 could be amended to ensure suitable application to cases involving the spread of defamatory information over the Internet is provided. Dan Jerker B. Svantesson