Katharina Boele-Woelki and Catherine Kessedjian (Editors)

Internet. Which Court Decides? Which Law Applies? Quel tribunal decide? Quel droit s'applique?

Kluwer Law International (1998) GBP 39.00
208pp ISBN 90-411-1036-4

Reviewed by
Dr Peter Kangis
Deputy Director
Sems-University of Surrey
[email protected]

1. Introduction

This book contains the proceedings of an international colloquium organised by the Molengraaf Institute of Private Law of the University of Utrecht and by the Hague Conference on Private International Law. The colloquium was held in honour of Michel Pelichet at the time of his retirement. Boele-Woelki and Kessedjian have acted as the editors but it was not easy to establish if the book contents were a selection of the papers presented. A short introduction is in English but the contents consists of 3 chapters in English and 4 in French. In terms of the volume of material about 65% is in French; I would therefore recommend caution to readers whose command of that language is not as good as it should be. There is a good index of key words, a list of abbreviations and a useful selected bibliography which was fairly up-to-date at the time of publication.

The rapid expansion and penetration of information technology and telecommunications has contributed to facilitating the exponential growth of access to the Internet. This relatively new means of communicating at high speed and low cost is presenting an unprecedented opportunity for contact and exchanges between people, with almost complete disregard for national frontiers and the ensuing domestic norms and regulations. Issues relating to cultural values, fraud and security have started taxing the minds of politicians and lawyers alike, naturally leading to asking which law applies and which court decides?

2. Inadequacy of Current Legislation

In the introductory chapter, Pierre Sirinelli reviews some of the issues relating to the use of the web and suggests that it, and the virtual community that it has created, have yielded problems that may no longer be addressed adequately through national norms and legislation. The intangibility of communications, by its very nature, would require not only compatibility of legal systems but, most likely, their comprehensive harmonisation. Although received wisdom would lead the reader to agreeing with the message, the evidence on the inadequacy of the present institutions could have been much stronger.

Although the second chapter, by Matthew Burnstein, also makes a case for the inadequacy of present situations, it is certainly more substantial and well supported with evidence. Why the Internet causes problems and how might these be resolved is the main theme. Unifying both the substantive law of the Internet and issues of choice of law are considered; some attention is paid to the choice of click-wrap and shrink-wrap approaches to the adoption in a contract of non-national substantive law.

3. Intellectual Property and the Internet

In the third chapter, which is well written, Willem Grosheide uses intellectual property as a case study, taking the opportunity to review both the theory and evidence about the inadequacy of present measures in their ability to afford protection to the owner. Although suggestions are made for ways to go forward, the contribution of this chapter is not obvious. The fourth chapter, by Francois Dessemontet, revisits the notion of national law of the provider, the user and the carrier and comments on their applicability to the protection of intellectual property. Although the range of issues raised is impressive, this chapter has not added much to the debate.

4. Contract and Tort in Cyberspace

Herbert Kronke, in the fifth chapter, examines which law would be applicable in contract and in cases of tort in Cyberspace. A case is made of the enduring strengths and weaknesses of various approaches; the conclusion drawn is that the problems need to be tackled at the international level, maybe at the level of substantive uniform law (UNCITRAL, UNIDROIT). To what extent can international law provide a solution to the uncertain and potentially dangerous situation that exists now? In the sixth chapter Gabrielle Kaufmann-Kohler enquires whether the internalisation of communications caused by the expansion of the Internet should lead naturally to the internationalisation of conflict resolution. This is, perhaps, the most substantial section of the book, well argued and documented, but regrettably, not adding much more than restating the argument that the internationalising nature of the Internet ought to be accompanied with world solutions, or, at least, with approaches that would work on a large scale. A case is made for a new approach to law, both in private and public matters.

The final -seventh- chapter is by Catherine Kessedjian, one of the editors, which is wrapping up the proceedings by putting forward the view that the role of the state may only be strengthened through transnational norms that have been worked out together with other states. It is concluded that the best way forward would be an international convention touching at the same time on substantive law, private international law, tort & criminal law, as well as civil and commercial law... just about everything!

5. Conclusion

Reading this book did not require too much concentration, in the sense that the papers included were clearly recognisable as conference papers, of reasonable quality, better delivered viva voce than as articles. The more taxing endeavour was to identify what was the unique contribution of each chapter, given that there was overlap of substance and argument between them. In this respect, notwithstanding general interest by the reviewer in the two issues raised, the book fell short of expectations, unavoidable in conference papers where each contributor has relative freedom of treatment and agenda, ending up with a general theme rather than a clear storyline.

This is a Book Review published on 30 June 1999.

Citation: Kangis P, 'Internet. Which Court Decides? Which Law Applies?', Book Review, 1999 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-2/kangis1.html>. New citation as at 1/1/04: < http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_2/kangis2/>