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Determining the Judicial Juristiction in the Transnational Cyberspace

Raut, Bimal Kumar (2004) Determining the Judicial Juristiction in the Transnational Cyberspace. .

Abstract

This thesis analyses the traditional notion of jurisdiction in the light of Internet based activities which are inherently decentralised and ubiquitous. It is clear that the unique nature of the Internet has undermined the very foundation of the traditional notion of jurisdiction and the territorially based concepts of law and their application.

Which court should hear disputes arising out of Internet activities? On what grounds may a court assert or decline the jurisdiction? These are perplexing questions currently facing courts worldwide because of the trans-national nature of the Internet by which people can transcend borders readily and rapidly. One simple and straightforward factor confronting lawmakers is that while most laws have a territorial nexus, the Internet defies the notion of territoriality. Traditionally, judicial jurisdiction has been exercised on a number of bases, such as where the defendant resides, whether the defendant is present within the forum and whether the defendant has property in the forum or not. These elements have been made largely irrelevant by the Internet. The Internet does not respect traditional boundaries and territories and it can even enable people to cross borders without any physical mobility. For instance, people are able to interact and even do business without revealing their identity.

In the absence of any definite international law on Internet jurisdiction, how have the courts responded to this challenge? This thesis has examined the recent case law in Australia, United States of America and France. In examining the case authorities, the only conclusion that can be reached is that current court approaches are unworkable. This thesis has also examined some international proposals on the matter and found them to be deficient.

Now, the dilemma before us is this: on the one hand, the present court approaches on Internet jurisdiction are unworkable. On the other hand, there is no clear international guidance to govern the jurisdictional issue. I believe this book makes a small contribution towards this perplexing question by proposing a new transnational principle which could be achieved through a "trans-national judicial dialogue".

Trans-national judicial dialogue can play a significant role in the creation, recognition, and enforcement of global norms. There are a number of benefits to be gained if this approach is adopted in Internet jurisdiction cases. Ideally, trans-national judicial dialogue would reduce the conflicts among courts and foster a consensual approach, thus providing a stable and predictable paradigm for the crucial issue of jurisdiction. Moreover, the parties involved in a case would be prevented from forum shopping in search of a forum with a greater likelihood of a favourable decision. Also, courts would not be able to decline jurisdiction merely because of foreign elements involved. This may be the most appropriate global approach which is urgently required to address an increasingly global problem.

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ID Code: 15830
Item Type: QUT Thesis (Professional Doctorate)
Supervisor: Fitzgerald, Brian
Keywords: Jurisdiction, Internet, Law, Court, trans-national, territoriality, international law, Internet Jurisdiction, case law, Trans-national judicial dialogue.
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Department: Law
Institution: Queensland University of Technology
Copyright Owner: Copyright Bimal Kumar Raut
Deposited On: 03 Dec 2008 13:50
Last Modified: 29 Oct 2011 05:39

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