Jurisdiction and conflicts of law in the digital age: regulatory framework of internet regulation

This is the second of several research products developed by our team on our Project on Internet & Jurisdiction. This policy paper is designed to submit the scientific contribution of the Institute for Research on Internet and Society – IRIS to a broader public discussion concerning the existing policy and normative frameworks for the determination of applicable jurisdiction and choice of law regarding private litigation on the internet. This research has been undertaken in collaboration with the International Study Group on Internet, Innovation and Intellectual Property – GNet, from Federal University of Minas Gerais (UFMG), under the coordination of professors Fabrício Bertini Pasquot Polido and Lucas Costa dos Anjos. What are the possible outcomes of this research? First, we will explore the current legal systems within their traditions and constraints, in order to verify how private international law can relate to events and social facts on the internet which have transnational repercussions. Secondly, we intend to identify existing rules to promote suggestions in order to reconcile the current mechanisms offered by private international law with the new internet context, particularly with regard to forms of digital due process in private cross-border litigation. Another central concept to the development of this article is the transnationality of litigation phenomenon. The internet is a platform for transactions that are not strictly bounded by state borders. Research on these topics is still developing, and, there are still little scientific literature available. But it is necessary to stress that studies on “due transnational process” are essential to the advancement of legal studies on the internet. The research developed here also launches the discussion on the potential development of an Index for the Degree of Transnationality in Internet Litigations, which would facilitate the identification of contentious profiles, the incidence of disputes in the networks and the main characteristics of the legal relationships underlying litigation submitted to courts, specialized or not4. In the Brazilian context, this concern is especially relevant. It should be noted that the whole topic being addressed here is in rapid development, which is why there are few works dedicated to its comprehension. However, it is defensible that the analysis on the data of transnational litigation can lead to a better understanding of its nature, social and economic effects and regulatory challenges.