We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 17 January 2008
A long time ago hens did not lay white or brown eggs but eggs in primary colours: red, yellow and blue. Since, depending on the colour of the eggs, their taste and quality varied, the farming industry split into red, yellow and blue industries catering for different markets. Those industries that dealt with the respective eggs became over the years highly competitive. And what was initially no more than a common understanding, namely, that hens laying red eggs belonged to the red industry, while hens laying blue and yellow eggs belonged to the blue and yellow industries, turned over the years into customary egg law, with each industry having its clearly demarcated area of competence. As it happened, due to interbreeding, some hens normally laying, for example, red eggs would very occasionally lay purple eggs or orange eggs. Also on occasion, some hens would stop altogether from laying eggs of a primary colour, but would lay orange, purple, brown or green eggs. These eggs and hens presented a problem, albeit not a severe one, as they remained very much the exception. Hens laying blue eggs were kept apart from hens laying red eggs and from those laying yellow eggs. Nevertheless, solutions to these problematic eggs and hens had to be found.
1 This story was inspired by the article by Tony Bradney, ‘Law Schools and the Egg Marketing Board’ (2001) 22 SPTL Reporter 1.
2 The terminology of ‘belonging’ has been used by some in the jurisdictional context, eg, Frederick A Mann ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours 1, 44 f, where he argues that public international lawyers should, just like their private counterparts, ‘ask whether the legally relevant facts are such that they “belong” to this or that jurisdiction’.
3 Lessig, Lawrence, ‘The Zones of Cyberspace’ (1996) 48 Stanford Law Review 1403, 1407.CrossRefGoogle Scholar
4 The Internet has challenged many other traditional bases of division or categories, with a prominent example being the traditional distinction between goods and services, relied upon in contract and intellectual property law. The arguments advanced in this paper to some extent also apply to these other traditional divisions.
5 This paper to some extent builds on my discussion in a previous article, Kohl, Uta, ‘Legal Reasoning and Legal Change in the Age of the Internet—Why the Ground Rules are still Valid’ (1999) 7 International Journal of law and Information Technology 123CrossRefGoogle Scholar, in which I argue for the value and necessity of incremental legal change even in view of a drastically changed reality. It is shown in this paper that this very imperative of legal continuity at times shapes legal rules which are too sophisticated to provide a solution to the very problem which inspired them, therefore paradoxically creating a need for a more radical legal reform.
6 International law also applies to private law even if only to the extent that it does not impose any limitations upon States on how to deal with these matters. There is disagreement on the extent to which international law does impose substantive limitations: see eg. Shearer, Ivan, ‘Jurisdiction’, in Blay, Sam, Piotrowicz, Ryszard, and Tsamenyi, Martin (eds), Public International Law: An Australian Perspective (Melbourne: OUP, 1997) 165Google Scholar; Mann, above n 2, 291; Akehurst, Michael, ‘Jurisdiction in International Law’ (1972–1973) 46 British Year Book of International Law 145, 177.Google Scholar
7 This assertion does not entail exclusive jurisdiction. In private matters, there is generally a choice of fora available to the plaintiff. But once proceedings are started in one forum, doctrines such as lis alibi pendens (civil law countries) or forum non conveniens (common law countries) or the availability of anti-suit injunctions have developed to ultimately prevent concurrent jurisdiction.
8 See, eg, Mann, above n 2, 50 f: ‘It would no doubt be desirable if the principle of exclusivity would come to be accepted for the purpose of jurisdiction, if, in other words, by common consent jurisdiction in respect of a given set of acts were exercised by one State only.’ Akehurst, above n 6, 192, where he comments in the context of global restrictive business practices that the number of States claiming jurisdiction should be as small as possible. For a defence of concurrent regulation in respect of public matters see: Dodge, William S, ‘Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism’ (1998) 39 Harvard International Law Journal 101.Google Scholar
9 Oxman, Bernand H, ‘Jurisdiction of States’ in Bernhardt, Rudolf (ed), Encyclopaedia of Public International Law (1987) vol 10, 277, 282.Google Scholar
10 Harris, David J, Cases and Materials on International Law, 5th edn (London: Sweet & Maxwell, 1998) 265Google Scholar, stating that custody of a person tends to be decisive in resolving conflicting claims. The same sentiment is echoed in Fitzmaurice, G, ‘The General Principles of International Law considered from the Standpoint of the Rule of Law’ (1957) 92 Recueil des Cours 209Google Scholar; but see also SirJennings, Robert and SirWatts, Arthur (eds), Oppenheim's International Law 9th edn (London: Longman, 1992), vol 1, 457Google Scholar: ‘Usually the coexistence of overlapping jurisdiction is acceptable and convenient; forbearance by states in the exercise of their jurisdictional powers avoids conflict in all but a small (although important) minority of cases’ and Mann, above n 2, 48: ‘[I]nternational lawyers know that the remedy again lies in a policy of tolerance, reasonableness and good faith.’
11 Oxman, above n 9, 278. This is also to some extent reflected in the emerging non bis in idem principle at the EU level: Wyngaert, Christine Van Den, Stessens, Guy ‘The International Non Bis In Idem Principle: Resolving Some of the Unanswered Questions’ (1999) 48 ICLQ 779.CrossRefGoogle Scholar
12 Of course, certain online interactions between two persons in different States, such as a contractual relationship, do not generally involve more jurisdictions than their offline equivalents.
13 20 Nov 2000, at <http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001120.pdf> (an unofficial English translation is available at <http://www.gigalaw.com/library/france-yahoo-2000-11-20-lapres.html>). The judgment affirmed the court order of 22 May 2000 (an unofficial English translation is available at <http://www.gyoza.com/lapres/html/yahen.html>).
14 Neil, MacCormick, Legal Reasoning and Legal Theory (Oxford: OUP, first published 1978, 1994), 73Google Scholar (footnotes omitted).
15 Ibid, at 76 f. See also Kelsen, Hans, General Theory of Law and States (Cambridge, Mass: Harvard UP, 1946) 14Google Scholar, where he states ‘“Justice” in this sense means legality; it is “just” for a general rule to be actually applied in all cases where, according to its content, this rule should be applied. It is “unjust” for it to be applied in one case and not in another similar case. And this seems “unjust” without regard to the value of the general rule, the application of which is under consideration.’
16 Fleming, John G, The Law of Torts 9th edn (North Ryde, NSW: LBC Information Services, 1998), 25Google Scholar. In the context of jurisdiction, for example, the technique of statutory interpretation which dominated conflicts law for five centuries was ultimately abandoned because it ‘had become so complicated with divergent scholastic distinctions … that confused masters left their readers more confused.’: Yntema, Hessel E, ‘The Historic Bases of Private International Law’ (1953) 2 American Journal of Comparative Law 297, 304.CrossRefGoogle Scholar
17 While most of the case law has developed in response to disputes arising between residents of states within the US rather than truly transnational disputes, and while they are preoccupied by the 14th Amendment of the US Constitution requiring ‘due process’, neither of these two aspects detracts from the fact that these decisions constitute a response to the ever increasing cross-border activity with which this paper is concerned. Also, of course, the requirement of due process or procedural fairness is nothing peculiar to the US.
18 326 US 310 (1945). For a comprehensive summary of the cases since then with special focus on online cases, see American Bar Association (ABA), ‘Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet’ (2000) at <http://www.abanet.org/buslaw/cyber/initiatives/jurisdiction.html>.
19 Pennoyer v Neff, 95 US 714 (1887) where it was held that a State could not subject non-residents to the jurisdictions of its courts unless they were served with process within its boundaries. The court also listed other bases of jurisdiction such as the defendant's voluntary appearance or the existence of his or her property within the jurisdiction.
20 International Shoe Co v Washington, 326 US 310, 316 (1945). In Shaffer v Heitner, (1977) 433 US 186 it was held that all assertions of jurisdiction, whether specific or general, had to meet the ‘minimum contacts’ tests. The focus in this discussion is only on specific jurisdiction, that is where the facts of the dispute arise out of the defendant's contacts with the forum. ‘General jurisdiction’ describes assertions which are valid regardless of the claim because of the substantial contacts of the defendant with the forum. See ABA, above n 18, 66.
21 International Shoe Co v Washington, 326 US 310, 316f (1945).
22 Ibid, 319 (1945).
23 But for a few exceptional cases, see above n 19.
24 Green v Mason, 996 F Supp 394, 396 (1998).Google Scholar
25 Burk, Dan L, ‘Jurisdiction in a World Without Borders’ (Spring 1997) 1 Virginia Journal of Law and TechnologyGoogle Scholar, at <http://vjolt.student.virginia.edu>, para 25 f.
26 357 US 235 (1958).
27 Hanson v Denckla, 357 US 235, 253 (1958).
28 Ibid, 251 (1958).
29 ABA, above n 18, 41 f.
30 Ibid, 43.
31 Ibid, 43 ff.
32 444 US 286 (1980).
33 Mann, above n 2, 46.
34 This explains some early ‘wrong’ decisions which have applied the targeting approach without making allowance for the fact that every website prima facie targets every jurisdiction. See, eg, Inset Systems Inc v Instruction Set Inc, 937 F Supp 161 (DConn 1996)Google Scholar, Halean Products Inc v Beso Biological, 43 USPQ (BNA) 1672 (1997)Google Scholar and Maritz Inc v Cybergold Inc, 947 F Supp 1328 (ED Mo 1996)Google Scholar. For academic or judicial criticism see inter alia: ABA, aboven 18, at 58 f; Brown, Peter, ‘US Courts Use Internet to Assert Jurisdiction Over Foreign Defendants’ (1997) Law Journal ExtraGoogle Scholar, at <http://www.ljx.com/internet/p6courts.html>; Hasbro Inc v Clue Computing Inc, 994 F Supp 34 (D Mass 1997)Google Scholar; Hearst Corp v Goldberger, 1997 WL 97097 (SDNY 1997).
35 ABA, above n 18, 60 f.
36 Ibid, 63.
37 See above n 34.
38 ABA, above n 18, 64.
39 For an excellent review of the case law and its many inconsistencies see Millennium Enterprises Inc v Millennium Music LP, 33 F Supp 2d 907 (D Or 1999).Google Scholar
40 Millennium Enterprises Inc v Millennium Music LP, 33 F Supp 2d 907, 916 (1999)Google Scholar citing Howard Stravitz, B, ‘Personal Jurisdiction in Cyberspace: Something More is Required on the Electronic Stream of Commerce’ (1998) 49 SCL Review 925, 939.Google Scholar
41 ABA, above n 18, 57.
42 A holistic substance approach, taking into account various variables, has frequently been advocated. See, eg, Brodsky, Edward, ‘Solicitation Via the Internet; Jurisdiction Over Claims’ (1997) New York Law JournalGoogle Scholar, at <http://www.ljextra.com/internet/0611irsolic.html>; Kohl, Uta, ‘Defamation on the Internet—A Duty Free Zone After All? Macquarie Bank Ltd & Anor v Berg’ (2000) 22 Sydney Law Review 119.Google Scholar
43 Millennium Enterprises Inc v Millennium Music LP, 33 F Supp 2d 907, 922 f; GTE New Media Services Inc v Bellsouth Corp, 199 F 3d 1343, 1350.
44 Contrast the claim made in ABA, above n 18, 65.
45 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (Document 301R0044).
46 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968, Brussels).
47 Emphasis added.
48 See Art 16 (formerly Art 14): ‘A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts of the place where the consumer is domiciled. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled …’ (emphasis added).
49 Explanatory Memorandum to the Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM (1999) 348final (28 Dec 1999) OJ C376E, 16, available at <http://europa.eu.int/eur-lex/en>. It was adopted by the Commission of the European Communities on 14 July 1999.
50 See Art 7 ‘Contracts concluded by consumers’; adopted by the Special Commission of the Hague Conference on Private International Law on 30 Oct 1999, at <http://www.hcch.net/e/conventions/draft36e.html>. See also Comments by the Rapporteur in Catherine Kessedjian, Preliminary Document No 12— Electronic Commerce and International Jurisdiction (2000, Ottawa) at <http://www.hcch.net/e/workprog/jdgm.html>, 6f.
51 See Art 2 of EC Regulation on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters: ‘persons domiciled in a Member State shall … be sued in the courts of that Member State’; Art 3 of Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters: ‘a defendant may be sued in the courts of the State where that defendant is habitually resident.’ On the difference between these two articles see Peter Nygh and Fausto Pocar, Preliminary Document No 11—Report of the Special Commission of the Hague Conference of Private International Law, at <http://www.hcch.net/e/workprog/jdgm.html>, 38 f.
52 Australian Competition & Consumer Commission, Enforcement Challenge: Enforcement of Consumer Protection Laws in a Global Market Place (1997), at <http://www.accc.gov.au/docs/global/front.htm>, 29.
53 Fleming, above n 16, 25.
54 Ibid, 12–16.
55 Ibid, 13.
56 There is certainly evidence that consumers are discouraged from engaging in online transactions by legal uncertainties. See, eg, James Catchole, ‘The Balance between Technology and the Law’ (March 2001) Computer & Law 32, 32.
57 Meyer, Christopher W, ‘World Wide Web Advertising: Personal Jurisdiction Around the Whole Wide World?’ (1997) 54 Washington and Lee Law Review 1269, 1282Google Scholar (footnotes omitted), at <http://www.wlu/edu/~lawrev/text/543/Meyer.htm>, para II.B.1. See also Dawe, Tony, ‘Trust the postman to deliver e-results’, The Times (UK), E-Business Briefing, 12 June 2001, 4.Google Scholar
58 Mathieson, Clive, ‘Seeing off the dot-coms’, The Times (UK), IT Plus/Law, 8 Mar 2000, 44.Google Scholar
59 Smith, Bradford L, ‘The Third Industrial Revolution: Law and Policy for the Internet’ (2000) 282, Recueil des Cours 229, 329.Google Scholar
60 The phrase ‘criminal matters’ is used to refer not just to matters which are criminal in the technical sense, but to all those matters in relation to which state authorities take coercive actions to achieve compliance with the law.
61 Akehurst, above n 6, 179. In domestic law this is, inter alia, reflected in the universal principle that the courts of one country will not enforce the penal laws of another country.
62 This overlap of the two categories has meant that the jurisdictional rules are discussed sometimes as part of prescriptive/legislative jurisdiction (see, eg, Mann, above 23; s 402 US Restatement (Third) of Foreign Relations Law) and sometimes as part of adjudicative/judicial jurisdiction (see, eg, Akehurst, above n 6).
63 Jennings and Watts, above n 10, 457.
64 Ibid, 458.
65 This maxim dates back at least to Ulricus Huber, De conflictu legum diversarum in diversis imperiis (1684), reiterated by Story, Justice in The Apollon 9 Wheat 362, at 370 (1824)Google Scholar. See Mann, above n 2, 24 ff.
66 France v Turkey, (1927) PCIJ Reports, Series A, No 10.
67 Ibid, 73 (emphasis added).
68 Harris, above n 10, 278.
69 Ibid, 278.
70 Strictly speaking, the Lotus case concerns only the constructive location of conduct, rather than the constructive location of the offender, within the territory. The offender has been deemed to be within the territory of a State when, eg, he owns property there, conducts business there or when there is an agent or employee within the territory. See Jennings and Watts, above n 10, 458 f.
71 The example, most often referred to, is when one shoots across the border, injuring or killing another person in that State.
72 France v Turkey, (1927) PCIJ Reports, Series A, No 10, 23.
73 Ibid, 24.
74 See also discussion in Mann, above n 2, 85 ff.
75 The most influential case, in which the effects doctrine received its classic formulation, is US v Aluminium Company of America, 148 F 2d 416 (1945)Google Scholar (the Alcoa case).
76 Mainly based on the Sherman Antitrust Act 1890 (US).
77 Lowe, A V (ed), Extraterritorial Jurisdiction: An Annotated Collection of Legal Materials (Cambridge: Grotius Publications Ltd, 1983), 79 ff.Google Scholar
78 See, eg, US v General Electric Co, 82 F Supp 753 (1949).Google Scholar
79 Akehurst, above n 6, 195, commenting on Mann, above n 2, 103.
80 Akehurst, above n 6, 195 f, where he convincingly argues that the economic effects of restrictive business practices are in fact a constituent element of the offence.
81 A most obvious recent example is Microsoft and its world-wide dominance in the field of operating systems.
82 Akehurst, above n 6, 199 ff. See also s 402(1)(c) US Restatement (Third) of Foreign Relations Law (1986) and Comment d.
83 Case Concerning the Barcelona Traction, Light, and Power Company Limited (Belgium v Spain) (Judgment), [1970] ICJ Reports 3, 105Google Scholar (emphasis added).
84 This echoes the balancing test advocated by Choy, Judge in Timberlane Lumber Co v Bank of America, 549 F2d 597 (1976), 611–12.Google Scholar
85 Lowenfeld, Andreas F, ‘Public Law in the International Arena: Conflict of Laws, International Law and Some Suggestions for their Interaction’ (1979) II 163 Recueil Des Cours 311, 329Google Scholar. See also Dodge, above n 8, 137
86 In the Nottebohm Case (Liechtenstein v Guatemala), [1955] ICJ Reports 4, the International Court of Justice applied the principle of a ‘genuine link’ in the nationality context. See also Lowe, above n 77, 94 (Australian support of the balancing of interest test, provided it is not applied by the judiciary), 108 f (Canadian approval of a balancing of interests approach), 207 ff (European Community commenting on the balancing of interests approach, arguing that it should also be applied at the rule-making stage).
87 Mann, above n 2, 45.
88 Ibid, 43.
89 Ibid, 50.
90 Eg, the United Kingdom, see Submission of the British Attorney General to the House of Lords in In re Westinghouse Electric Corporation Uranium Contracts Litigation in Lowe, above n 77, 170. But cf Akehurst, above 6, at 208 (on the UK attitude to the effects doctrine).
91 509 US 764 (1993).
92 Hartford Fire Ins Co v California, 509 US 764, 798 (1993).Google Scholar
93 eg, Dodge, above n 8. See also Buxbaum, Hannah L, ‘The Private Attorney General in a Global Age: Public Interests in Private International Antitrust Litigation’ (2001) 26 Yale Journal of International Law 219.Google Scholar
94 McConnaughay, Philip J, ‘Reviving the “Public Law Taboo” In International Conflict of Laws’ (1999) 35 Stanford Journal of International Law 255, 257.Google Scholar
95 Minnesota Attorney General, Statement of Minnesota Attorney General on Internet Jurisdiction, at <http://www.jmls.edu/cyber/docs/minn-ag.htm>.
96 714 NYS 2d 844.
97 People v World Interactive Gambling Corp, 714 NYS 2d 844, 860 f.
98 Ibid (emphasis added).
99 Australian Securities and Investments Commission, Offers of Securities on the Internet, Policy Statement 141 (10 Feb 1999, reissued 2 Mar 2000), PS 141.5–141.20; see also Electronic Prospectuses, Policy Statement 107 (18 Sept 1996, updated 10 Feb 2000), PS 107.102, available at <http://www.cpd.com.au/asic/ps>.
100 Although it may be argued that the wording of the policy statement leaves open the possibility that jurisdiction may be assumed on the basis of mere misconduct regardless of whether or not its effects on Australia were either intended or substantial.
101 20 Nov 2000, at <http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001120.pdf> (an unofficial English translation is available at <http://www.gigalaw.com/library/france-yahoo-2000-11-20-lapres.html>).
102 Yahoo! Inc was ordered to comply with the injunction within three months, after which time it would incur a penalty of 100,000 Francs for every day of delay.
103 This was, amongst other things, argued by Yahoo! Inc in its complaint which it filed on 21 Dec 2000 in the US District Court, Northern District of California (complaint No C00–21275, at <http://pub.bna.com/eclr/21275.htm>) and in which it sought declaratory relief that the French orders were neither recognisable nor enforceable in the United States.
104 ABA, above n 18, 83.
105 See first decision of 22 May 2000 in which Judge Gomez heard the case in an emergency hearing (an unofficial English translation is available at <http://www.gyoza.com/lapres/html/yahen.html>).
106 BGH, Urt. v. 12.12.2000—1 StR 184/00 (LG Mannheim), reproduced in (2001) 8 Neue Juristische Wochenschrift (NJW) 624.
107 Incidentally, Toben had already been ordered to remove the relevant material by the Australian Human Rights and Equal Opportunities Commission on the basis that it is contrary to the Racial Discrimination Act 1975 (Cth): Jeremy Jones and Member of the Committee of Management of the Executive Council of Australian Jewry v Federick Toben (5 Oct 2000), available <http://www.hreoc.gov.au>.
108 BGH, Urt. v 12.12.2000—1 StR 184/00 (LG Mannheim), reproduced in (2001) 8 NJW 624, 628.
109 Ibid, 626f.
110 Ibid, 625.
111 People v World Interactive Gambling Corp, 714 NYS 2d 844, 859.
112 McGuire, John F, ‘When Speech is Heard Around the World: Internet Content Regulation in the United States and Germany’ (1999) 74 New York University Law Review 750, 769Google Scholar (footnotes omitted). The Chief Executive of CompuServe was on appeal acquitted of the indictment of distributing child pornographic material: Zander, Oliver, ‘Recent Developments in German Internet Law’ (2000) Oct/Nov Computer & Law 36, 36.Google Scholar
113 In its judgment of 11 Aug 2000 (an unofficial English translation is available at <http://www.gyoza.com/lapres/html/yahen8.html>) the Paris court ordered the set-up of a three-member panel of experts to comment on the feasibility of ordering Yahoo! Inc to prevent French surfers from accessing neo-nazi material. The finding of the panel formed the basis of its November judgment.
114 People v World Interactive Gambling Corp, 714 NYS 2d 844, 861.
115 Eg, the fact that the advocacy of racist theories is protected under the First Amendment of the US Constitution (Brandenburg v Ohio 395 US 444 (1969)) does not show that the ideas themselves received judicial approval but rather that it was perceived that market-forces can more effectively deal with them. See Feldman, David, Civil Liberties and Human Rights in England and Wales (Oxford: Clarendon Press, 1993), 549.Google Scholar
116 Although the Paris court (like the courts in the other examples) never expressly acknowledged that this was the trigger for its assumption of jurisdiction, it would explain why other foreign online culprits have not been sued or prosecuted. See Eko, Lyombe, ‘Many Spiders, One Worldwide Web: Towards a Typology of Internet Regulation’ (2001) 6 Communication Law and Policy 445, 472CrossRefGoogle Scholar f: ‘Though other online auction sites, such as e-Bay, display and auction memorabilia from Hitler's Third Reich, Yahoo! was sued because it had a French subsidiary…’. It may though be noted that the Paris court did not allow for the orders against Yahoo! Inc to be enforced against its French subsidiary and it even acknowledged the enforcement difficulties arising out of this. See judgment of 20 Nov 2000, at <http://www.juriscom.net/txt/jurisfr/cti/tgiparis20001120.pdf>.
117 BGH, Urt. v 12.12.2000—1 StR 184/00 (Mannheim, LG), reproduced in (2001) 8 NJW 624, 625Google Scholar; although it seems that at the time of the ruling, Mr Toben had returned to Australia. See ‘Holocaust Denier Not Impressed by Ruling’, Frankfurter Allgemeine Zeitung (English edition) 13 Dec 2000, at <http://www.faz.com>.
118 Akehurst, above n 6, 235.
119 BGH, Urt. v. 12.12.2000—1 StR 184/00 (LG Mannheim), reproduced in (2001) 8 NJW 624, 628.
120 See above n 5.
121 These two approaches are not mutually exclusive and indeed inform the assumption of jurisdiction both in respect of private and public matters, albeit to varying degrees. As considerations of enforcement jurisdiction have influenced the outcome in private matters (see, for example, Australian case of Macquarie Bank Limited & Anor v Berg, [1999] NSWSC 526, available at http://austlii.edu.au) so is, of course, the very existence of, for example, the effects doctrine in international law evidence that jurisdiction may be asserted even in the absence of enforcement power and that fairness demands that States can regulate activity by which they are substantially affected.
122 See above n 116, on the more favourable position of companies like e-bay in comparison to the more conscientious Yahoo! Inc.
123 Mann, Frederick A, ‘Conflicts of Laws and Public Law’ (1971) 132Receuil des Cours 107, 121.Google Scholar
