Conceptualising Special Jurisdiction for Receipt Orientated Torts on the Internet: Lessons from CJEU Jurisprudence

Abstract

The Court of Justice (CJEU) has an important role in contributing to the interpretation of norms in private international law. Since the Brussels Convention 1968, the CJEU has interpreted the “place of the harmful event” as the connecting factor to establish international jurisdiction for cross-border torts. In recent years, the CJEU’s interpretative approach has become significant in disputes concerned with three new forms of cross-border online torts, known as receipt orientated torts. The CJEU has distinguished this connecting factor for three types of receipt orientated torts in particular; defamation, intellectual property infringement and anti-competitive behaviour. The aim of this paper is to argue for a special jurisdiction rule for these receipt orientated torts. Such a rule would support the sound administration of justice and the efficient allocation of jurisdiction. The objective of this article is two-fold. First, the article adopts a conceptual framework based on “the underlying reason for jurisdiction, the effect on internet economic activity, and the importance of balancing the interests of the claimant and defendant.” Second, the article uses that framework to show how the CJEU’s interpretation of the connecting factor for special jurisdiction must be adapted for receipt orientated torts. To achieve this objective, the article sets out the CJEU’s response to interpreting the connecting factor for special jurisdiction. The article then identifies how the CJEU has interpreted the connecting factor through the common and specific characteristics of these receipt orientated torts. The article concludes with a proposed future adaptation of Article 7(2) of the Brussels I Bis Regulation which includes a sub-rule for these three categories of receipt orientated torts. The proposal should also be considered in a future international convention on jurisdiction.