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Abstract:
The recent decision of the High Court of Australia in Dow Jones & Co Inc v Gutnick has inspired much controversy. The reaction from media and technology groups has been particularly critical as they see the decision representing a threat to freedom of expression on the Internet and a deterrent to online publication. It has also been suggested that the High Court judgments reflect a peculiarly nationalistic approach to resolving problems with respect to a medium that is fundamentally borderless and aterritorial. More generally, the decision is also highly significant because it represents the first major opportunity for an Australian court to examine the application of the rules of private international law to Internet conduct. While in the United States and Europe there now exists a large body of judicial decisions and legislative activity on the topic, in Australia, until Gutnick, the issues of jurisdiction and choice of law in relation to the Internet remained largely unexplored.

The purpose of this article is to assess the adequacy of the approach taken by the High Court according to a number of criteria of adjudicative fairness. Firstly, does the decision treat plaintiffs and defendants with equality in transnational defamation litigation? Secondly, does it effectively advance the objectives of comity between nation states and the proper allocation of jurisdictional competence among national courts? In considering these issues, a number of alternative approaches to that adopted by the Court will also be discussed.

private international law, jurisdiction, choice of law, defamation, internet , freedom of expression

Abstract:
Historically, the bodies of legal doctrine known as private international law and intellectual property have inhabited largely separate spheres. Recent technological developments have, however, made possible the communication and infringement of IP rights on a global scale. This article examines the current relationship between private international law and intellectual property as well as a recent reform proposal by the American Law Institute.

private international law, international, intellectual property, cross-border, reform

Abstract:
This article takes as its starting point the brief but illuminating discussion of the transnational phenomenon of the internet in Michael Whincop and Mary Keyes' 2001 book 'Policy and Pragmatism in the Conflict of Laws', and observes that the prospect of internet publication will inevitably influence the framing of choice of law and jurisdictional rules from now on. This has already been shown by the High Court's decision in the recent case of Dow Jones & Company Inc v Gutnick where, in attempting to adapt the previously certain lex loci delicti defamation choice of law rule to the exigencies of the internet, the court effectively transformed the rule into a more fluid - and more reasonable - standard that only allows for presumptive conclusions about the place of the tort as ordinarily (but by implication not inevitably) the place of downloading. Further, the fact that the court stressed that the lex loci delicti for other kinds of torts will depend on the 'essence' of the tort suggests that policy is now central to choice of law to an extent not previously contemplated. We suggest that it is possible to elucidate some relatively certain choice of law rules for internet publications - being as much as can be hoped for at this stage.

jurisdiction, tort, lex loci delicti, defamation, internet, publishing, Australia, High Court of Australia

Abstract:
In November 2008 Australia's Attorney-General's Department (AGD) initiated a Review of its International Arbitration Act (IAA), last substantially revised two decades ago by adopting the 1985 UNCITRAL Model Law on International Commercial Arbitration (ICA). This aims to claw back ground lost to arbitral venues in the Asia-Pacific, which also implies a clearer framework for enforcing foreign awards. A long-term goal may be to revive domestic arbitration in Australia, which has been languishing.

The AGD's Discussion Paper invited Submissions from the public on eight issues in particular. These include whether and how the IAA should incorporate various 2006 amendments to the Model Law, including relaxed writing requirements for arbitration agreements and broader scope for arbitrators to issue interim measures. We urge even more ambitious reform, covering the following "Top Twenty" issues (and numerous other sub-issues) under four headings. Guiding principles should be for the revised IAA to adopt more informal or expeditious solutions, and more global approaches. This is crucial to address the considerable statistical and anecdotal evidence of re-emergent costs and delays in ICA in Australia and world-wide.

Stays
1. Arbitrability - scope and applicable law
2. Arbitration agreement - substantive validity and applicable law
3. Conditions on stays
4. Stays under s 7 vs ML Art 8 - alternatives and time limits
5. Arbitration agreement - formal validity and writing requirements
Enforcing Awards
6. Two issues when Australia implemented NYC Art V
7. Enforcement possible only under IAA s 8
8. Enforcing awards set aside at seat
9. Suspending enforcement if setting aside sought at seat
10. Public policy
11. Interim measures
Model Law
12. Opt-out and opt-in
13. Jurisdiction of courts and devolving powers to arbitral institutions
14. Arbitrators ruling on own Jurisdiction
15. Evidence
16. Arb-Med
17. Awards - copies and reasons
18. Other optional provisions - interest, costs and consolidation
Overarching Issues
19. Confidentiality and privacy
20. Overarching principles

commercial arbitration, international dispute resolution, mediation, international law, Australian law, comparative law, consumer law, law reform

Abstract:
This introductory paper explains the genesis of the following set of articles on current issues relating to cross-border communications disputes. By way of background it gives a brief overview of private international law in Australia, its particular applications to communications disputes (especially in the internet context) and attempts to deal with current problems, and the need for international reform.

cross-border, communication, Australia, international law, internet, reform

Abstract:
The increase in transnational litigation before Australian courts has also seen a rise in the number of cases involving foreign states. While a number of doctrines currently exist in Australian law that protect the interests of foreign states from adjudication, their combined effect has been to frustrate the vindication of private rights. Principles of personal jurisdiction and appropriate forum, where private and public interests may be weighed against each other in the decision to adjudicate, offer a more balanced and equitable solution.

foreign, transnational, litigiation, Australia, court

Abstract:
States employ people in a wide range of positions in their embassies and consulates abroad with such persons often performing highly similar tasks to those employed in industry or the local civil service. Yet the UK, almost alone among developed countries, continues to deny such employees the right to sue their employer because of the doctrine of State immunity. In this article it is argued that the current position is inequitable, inconsistent with international practice and ultimately not in the interests of the foreign States themselves.

employee, embassy, consul, UK, rights, State immunity