International Jurisdiction and Enforcement of Judgments in the Era of Global Networks: Irrelevance of, Goals for, and Comments on the Current Proposals

Abstract

This paper addresses two proposals for international civil procedure rules in the context of intellectual property. The first proposal, the Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, covers most of civil commercial litigation. The second, by Professors Rochelle Dreyfuss and Jane Ginsburg, deals exclusively with intellectual property, primarily copyright.

We begin by examining why any convention might be less important than it might first appear. For example, contract language may move disputes out of the court system and into arbitration. In the copyright context, technology might make enforcement unnecessary-e.g., when the copyrighted material is on a CD that can be played only a limited number of times.

Focusing primarily on the Hague Convention, we consider how the benefits of international consistency in matters of jurisdiction and enforcement compete with the value of national autonomy. The four guideposts of uniformity, predictability, pluralism, and openness can lead to the proper balance between redressing electronic wrongs and encouraging innovate legal solutions. The special global nature of the web, however, may lead to greater reliance on an international convention. This suggests that we are not at a dead end, but at a new beginning.

Keywords: international civil procedure, international litigation, cross-border litigation, alternative dispute resolution, copyright, Internet, World Wide Web, copyright infringement, choice of forum, choice of law, remedies, clickwrap agreements