Ronnel A.

Deinla
11780541
Conflicts of Law- G01

Choice of Law and Jurisdiction on the Internet

Reaction Paper

The article written by Paul Schiff Berman recognizes how the internet has introduced
complications in litigating and enforcing rights. This is attributable to the fact that the Internet
frees us from geographic fetters and brings us together in topic-based communities that are not
tied down to any specific place.1 To fully grasp conflicts of law brought about by the internet,
we are presented with the cases of GlobalSantaFe Corp. v. Globalsantafe.com2,
Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona3, and Yahoo!, Inc. v. La
Ligue Contre Le Racisme Et L’Antisémitisme.4

In GlobalSantaFe, a South Korean national registered the domain Globalsantafe.com

with the Korean domain name registrar. This was done in less than a day after an announcement
that GlobalSanteFe Corporation shall be created from two merging companies. Here, we are
presented with a situation where a US corporation seeks remedy from a US court against a
foreign national who invokes defenses with a South Korean court. In Barcelona, a Spanish
citizen wanted to register with the US based domain name registrar a website which would use
“Barcelona.” The City Council opposed this and sought relief from the World Intellectual
Property Organization. The private citizen brought an action with a US court. Here, two
Spanish entities residing in the same locality are brought under a US forum. In Yahoo!,
complications arose in the enforcement of judgment in the US since a decision by the French
court runs afoul against the First Amendment. The French court sought to enjoin access to non-
French websites stored on Yahoo!’s non-French servers. However, for Yahoo! to comply with
this order, it will also deny non-French citizens who have the right to access the materials
ordered to be taken down.

In presenting these cases, Berman also illustrated how simply these cases were decided
when it could have been a good opportunity to be instructive of using cosmopolitanism to
rationalize the decisions. In all cases, the US courts were firm in exercising jurisdiction over
the cases since the domain registrar was found in Virginia, USA. It applied a strictly territorial
view in resolving the choice of law. This was discussed in comparison with vested rights,
governmental interests, and substantive law method.

Vested rights focused on the physical location of the essential act that, at least to Beale,
constituted the cause of action.5 With vested rights, the idea is that so long as the forum
government is deemed to have an “interest” in the dispute, its law should always govern,
regardless of the multistate character of the events at issue in the case. 6 The substantive law

1
Dentzel, Zaryn. How the Internet Has Changed Everyday Life. (2013) <
https://www.bbvaopenmind.com/en/articles/internet-changed-everyday-life/ >
2
GlobalSantaFe Corp. v. Globalsantafe.com, 250 F. Supp. 2d 610 (2003)
3
Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, 330 F.3d 617 (2003)
4
Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L’Antisémitisme, 399 F.3d 1010 (2005)
5
Berman, Paul. Choice of Law and Jurisdiction on the Internet. (2005)
6
Berman, Paul. Choice of Law and Jurisdiction on the Internet. (2005)
method takes seriously the multistate nature of the dispute and seeks to find a way to reconcile
the multiple communities potentially implicated.7

Berman presents to us the idea that a cosmopolitan vision resolves choice of law
controversies. Liberal cosmopolitanism comprises an "imagined community" that extends
everywhere. In this light, the moral community to which each person owes an obligation is
worldwide, generating an obligation to "care at a distance," in which the concerns of distant
strangers are held to be as important as those of people nearby.8

Cosmopolitanism looks to a variety of possible legal sources. First, courts can consider
the multiple domestic norms of involved nation-states. Second, statements of evolving
international or transnational norms may provide relevant guidance. Third, courts should
consider community affiliations that are not associated with nation-states, such as industry
standards, norms of behavior, and community customs. Fourth, courts should consider
traditional conflicts principles.9

Applying this view on choice of law could be harmonized with existing laws and
jurisprudence in the Philippines. Under the system of procedure which obtains in the
Philippines, both legal and equitable relief is dispensed in the same tribunal.10 Hence, the notion
that Philippines courts are courts of law and equity. Equity could harmonize cosmopolitanism
and stare decisis.

Equity jurisdiction aims to do complete justice in cases where a court of law is unable to
adapt its judgments to the special circumstances of a case because of the inflexibility of its
statutory or legal jurisdiction. Equity is the principle by which substantial justice may be
attained in cases where the prescribed or customary forms of ordinary law are inadequate.11

However, in applying the equity doctrine in conflicts of law cases, the Judiciary should
always be reminded of its limitations.

It is of course fundamental that the determination of the legislative intent is the primary
consideration. However, it is equally fundamental that that legislative intent must be
determined from the language of the statute itself. This principle must be adhered to even
though the court be convinced by extraneous circumstances that the Legislature intended to
enact something very different from that which it did enact. An obscurity cannot be created to
be cleared up by construction and hidden meanings at variance with the language used cannot
be sought out. To attempt to do so is a perilous undertaking and is quite apt to lead to an
amendment of a law by judicial construction. To depart from the meaning expressed by the
words is to alter the statute, is to legislate not to interpret.12

7
Berman, Paul. Choice of Law and Jurisdiction on the Internet. (2005)
8
Warf, Barney. Cosmopolitanism and Space. (2012) < https://www.jstor.org/stable/41709186 >
9
Berman, Paul. Choice of Law and Jurisdiction on the Internet. (2005)
10
US v. Tamporong, G.R. No. L-9527 (1915)
11
Reyes v. Lim, G.R. No. 134241 (2003)
12
Tanada v. Yulo, G.R. No. L-43575 (1935)