Ellen Rony wrote:
>So I pose a question: Cross-border disputes are not new to commerce. How
>have jurisdictional issues been handled in the past? Which country's
rules
>prevail when they are not in accord and the outcome would differ greatly
>from one country to the next. Is it merely dependent upon which party is
>the first to bring a dispute to litigation? Can a cross border dispute be
>appealed by the losing party in a different, but appropriate,
jurisdiction?
>Isn't there a legal, historical jurisdictional record to which we can
>turn?
Yes - there is a substantial body of private international law on exactly
these questions, and also a number of treaties. This does not mean that
the question is clear in every case, and courts in different countries can
take different views. Large tomes have been written on this subject which
has developed extensively in particular in the context of shipping.
Generally (and very broadly) the court chosen by the parties (by contract),
or the court of the country of a consumer, or the court with the closest
connection with the dispute will be the appropriate forum. It is not
generally possible to appeal a judicial decision in a different
jurisdiction.
However, there are substantial drawbacks to international litigation,
including the additional expense, the possibility of having to conduct
litigation in a foreign language, and the difficulties of distance and time
zones to name but four. These are exacerbated in the context of disputes
relating to conduct on a Website which may be actionable in more than one
jurisdiction on different bases. This is the attraction of arbitration in
a known forum or fora. The European Commission is looking at "on-line"
arbitration, which seems worth exploring.
There have been suggestions that arbitration should not be mandatory. If
it is not, then the door will be open to the party with the most financial
muscle to "forum shop" to put the other party at a disadvantage. Provided
that arbitration is under clearly understood rules with experienced
arbitrators, it is just as good a method of dispute resolution as
litigation in court, (and in general allows appeal to the courts on points
of law). It is widely used in many arenas, including shipping, insurance
etc.
Clare Wardle
My views are my own,and not necessarily those of my employer or colleagues.
