Private international law and theInternet – AI to the rescue?

Professor Dan Jerker B. Svantesson - Bond University

For any given activity, that activity isregulated by a ‘contextual legal system’
comprised of norms from any
applicable national legal system(s).

An era of “Hyper Regulation”:• Problems:
1.Can’t identify all applicable laws
2.Can’t access all applicable laws
3.Can’t understand all applicable laws
• Plus considerable areas of uncertainty

4.Contradictions amongst applicable laws

• What about Ignorantia juris non excusat?
• Focus on strictest rules as the solution? But:
• Multiple sources• What about rights?
• Clashing duties (duty v duty)• Clashes of right and duties (right v duty)

The AI system of my dreams:• Goal:• An AI system capable of:
1. Identifying the norms from multiple
legal systems that together make up
the relevant contextual legal system
for a given activity; and (potentially)
2. Reconciling – or at least balancing –those norms in a manner that makes
for a coherent system even whereindividual norms clash.

Why Internet? IT is not a fringe issue:• How big is the issue? LinkedIN=660m, FB=2.4b & YouTube=1.9b.
• 10 of the listed companies are from the tech industry on Foreign
Policy’s list of “25 Companies Are More Powerful Than ManyCountries”• 6 of the top 10 companies on Forbes’ list of the world’s mostvaluable brands are tech companies (with the four top spots being
Apple, Google, Microsoft and Facebook)Structure:• Briefly about Private International Law• Modelling from a ‘user perspective’• Briefly about balancing/reconciling• Very briefly about access to data
• Briefly about overarching problems• Concluding remarks

Private international law:
• Problems online:• Connecting factors too easily attach to online activity; and• Location-focused connecting factors are to easily manipulated.

• Addresses four matters:
1.
2.
3.
4.

Jurisdiction;
Choice of law;
Declining jurisdiction; andRecognition and enforcement.

• Are unilaterally decided and therefore:• Uncoordinated; and• Unharmonised.

0. Cross-borderissues
1. Private
InternationalLaw

2. PublicInternationalLaw
2.2 Nonintervention

1.1 Jurisdiction

2.1 JurisdictionalRules

3. Extra-legal

1.1.1 PersonalJurisdiction

2.1.1 Legislative
Jurisdiction

2.3 Due Diligence1.1.1.1 General
Jurisdiction

2.1.1.2 Objective
Territoriality

2.1.1.1
Subjective
Territoriality

2.1.1.4 Passive
Personality

2.1.1.3
Nationality

2.1.1.6
Universality

2.1.1.5 Protective

2.4 Comity

1.1.1.2 Specific
Jurisdiction
1.1.2 Subjectmatter
Jurisdiction

2.5 Sovereignty

1.1.3 Scope of(Remedial)
Jurisdiction

2.1.1.7 Effects
Doctrine

1.2 Choice of Law

1.3 Declining
Jurisdiction

2.1.2
Investigative
Jurisdiction(2) Legitimate
Interest

1.3.1 Lis Pendens
1.3.2 Forum NonConveniens

2.1.3
Adjudicative
Jurisdiction(3) Interest
Balancing

2.1.3.1 ????

1.3.3 Lacking
Efficiency
1.4 Recognition& Enforcement
1.4.1 Under
StatuteVersion of 13/5 2019

2.1.2.1(1) SubstantialConnection

2.1.4
Enforcement
Jurisdiction

2.1.1.4.1 Strictly
territorial?

1.4.2 Outside
StatuteProfessor Dan Jerker B. Svantesson - Bond University

Private international law:
• “enables the coexistence of multiple normative systems, having
distinct and often contradictory rules, and the decision of cases
involving persons connected to different legal systems, without
imposing an additional overarching regulation, and withoutestablishing priorities between the involved systems. Conﬂicts
between competences and between rules are avoided by
distributing the cases between the authorities of the different
normative systems (jurisdiction), and by establishing what set ofnorms these authorities have to apply to each given case (choice oflaw).” (Dung & Sartor, 2011)‘Court perspective’:• Scenario I: Person A who lives in country X sends an email to person B
who lives in country Y. The text of the email is truthful, but reveals
intimate personal dealings of person C who lives in country Z.
• ‘Court perspective’:• Person C sues person A. The court (whether it is in country X, Y or Z) will haveto decide:• whether it can claim jurisdiction over the matter;• which country’s law applies; and• whether there are reasons to decline to exercise jurisdiction.

‘Court perspective’: Limited relevance• “The principal functions of the law as a means of social control are
not to be seen in private litigation or prosecutions, which represent
vital but still ancillary provisions for the failures of the system. It is tobe seen in the diverse ways in which the law is used to control, toguide, and to plan life out of court.” (Hart, 3rd Ed 2012)• To this may arguably be added a third principal function, namely thatof ‘expressing and communicating the values of the society thatcreated the law’ (Svantesson, 2017), thus: The triple role of law is:
1. A tool to decide legal disputes;
2. A tool to control, to guide, and to plan life out of court; and3. A tool to express and communicate the values of society.

‘User perspective’:• Scenario I: Person A who lives in country X sends an email to person B
who lives in country Y. The text of the email is truthful, but reveals
intimate personal dealings of person C who lives in country Z.
• Scenario II: Person A posts information on a social media site on
which the person making the posting has ‘friends’ in 100 different
countries.
• (Too) simplistic ‘user perspective’ (Person A):• Contextual legal system (ConLS)• Number of potential laws (n);• Scenario I n = 3 (X, Y and Z), [or potentially a higher number (n ≥ 3)]. ConLS3 or ConLSX+Y+Z• Scenario II n = 100, [or potentially a higher number (n ≥ 100)]. ConLS100 or ConLS≥100

‘User perspective’:• Scenario I: Person A who lives in country X sends an email to person B wholives in country Y. The text of the email is truthful, but reveals intimate
personal dealings of person C who lives in country Z.
• Proper ‘user perspective’ (Person A):• Contact Points (CP) in Scenario I CP = 3 (X, Y and Z), [or potentially a higher number(CP ≥ 3)].
• For each CP, we need to consider their rules of private international law that mayeither:
1.
2.
3.

allow or disallow the court to claim jurisdiction;
if allowing jurisdiction, nominate the domestic law, or a foreign law as applicable; andeven if allowing jurisdiction, instruct the court to decline to exercise.

• Thus, n may typically be equal to or smaller than CP, but may only be higher than CP
where we have encountered an unforeseeable claim of jurisdiction (or choice of law).

‘User perspective’:• Scenario I: Person A who lives in country X sends an email to person B wholives in country Y. The text of the email is truthful, but reveals intimate
personal dealings of person C who lives in country Z.
• Proper ‘user perspective’ (Person A): Scenario I – Imagine that:
1. the rules of jurisdiction of X, Y and Z provide that the court can claim
jurisdiction over a defamation matter only if the defendant or theplaintiff resides in the country;
2. the choice of law rules of X, Y and Z point to the law of the forum; and3. the private international law rules of country X instruct that the court
should decline to exercise jurisdiction if the defamatory content was notcommunicated to anyone in country X.
4. Courts in country X do not recognize and enforce judgments fromcountry Z.

Tools for reconciling or balancing:
Jurisprudential framework for jurisdiction• “In the absence of an obligation under international law to exercise
jurisdiction, a State may only exercise jurisdiction where:• (1) there is a substantial connection between the matter and theState seeking to exercise jurisdiction;• (2) the State seeking to exercise jurisdiction has a legitimate interestin the matter; and• (3) the exercise of jurisdiction is reasonable given the balance
between the State’s legitimate interests and other interests.”(Svantesson 2015)

Tools for reconciling or balancing:
Jurisprudential framework for jurisdiction• Scenario III: Company A from country A enters into acontract with natural person B from state B.

• Application of country B’s consumer protection laws = substantial
connection + legitimate interest• Application of country B’s corporate governance laws = weakerconnection + weaker interest• Application of country B’s marriage laws = no connection + nointerest

Tools for reconciling or balancing: Otherpotential tools• Forum non conveniens• Comity• International human rights standards• Anti-competition law?
• Others?

Transparency of method is key!

Accessing data:• Free Access to Law Movement (eg AustLII for Australia and CanLII forCanada)• Digitalization and publication of law – significance for legitimacy ofclaims of jurisdiction and choice of law• Language issues• Adequacy of sub-sets of law• specific areas of law (e.g. consumer contracting, defamation, copyright); or• sectoral needs (e.g. the laws particularly affecting online news publishers).

Overarching problems:
1. “One thing that I think could be criticized though, is theformat and the language of our judgments. They can hardly
be said to be particularly reader-friendly. In fact, the operative
part is not infrequently on the border of being
incomprehensible.” (Fernlund of the CJEU)
2. Law is layered
3. Law is not just what is written on papers1. Four types of situations, each showcasing
the ambiguity of normative sentences• (a) Sometimes a normative sentence S is ambiguous in the strict sense for
either syntactic or semantic reasons: One wonders whether it expresses
the rule R1 or the rule R2.
• (b) Sometimes everyone agrees that the normative sentence S expresses
the rule R1, but one wonders whether it also expresses the rule R2 or not.
• (c) Sometimes everyone agrees that the normative sentence S expresses
the rule R1, but one wonders whether such a rule entails, or not, the ruleR2.
• (d) Sometimes everyone agrees that the normative sentence S expresses
the rule R1, but one wonders whether such a rule is defeasible (i.e., subjectto unexpressed exceptions) or not. (Guastini 2011)

2. Law is layered• Eg every rule of the GDPR must be understood in thelight of:• EU Charter of Fundamental Rights; and• All texts that regulate the operation of the EU• Just a matter of interpretation?
• What if a provision of the GDPR is invalidated by theCharter?

3. What is ‘law’?
• Law L is n(Norm + Norm(Context))• n as used here represents the (unascertainable) number of legal norms thatmake up the law• Norm is a legal norm as announced (whether in legislation or in case law)
• Norm(Context) includes (at least):• the linguistic/terminology context• the historical context• the political context• the philosophical context• the systematic context• the economic context• the announcement context• the application context• the structural context

3. What is ‘the law’ on a given issue?
• Traditional (simplistic) view:• The equivalent of Lx = 4.13
(we pretend that law isprecise)• Due to underdeterminancy, thelaw ‘is’ a more or less abstract
range of options:• A < Lx < B where A ≈ 2 and B ≈6
• A judgment of Lx < A or Lx > B
represent a mistake by thejudgeNorm(Context) is unascertainable→The law is indeterminate OR‘underdeterminate’Thank you!

dasvante@bond.edu.au