An Urgent Suggestion to Pour Old Wine into New Bottles: Comment on "A New Jurisprudential Framework for Jurisdiction"

Abstract

Dan Svantesson is quickly establishing himself as a leading voice in the field of jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality,1 on the basis of my earlier monograph on Jurisdiction in International Law. 2 Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s, namely doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.