Extraterritorial Enforcement of National Laws in Connection with Online Commercial Activity

RESEARCH HANDBOOK ON ELECTRONIC COMMERCE LAW, John A. Rothchild ed., Edward Elgar, 2016

UNLV William S. Boyd School of Law Legal Studies Research Paper

19 Pages Posted: 2 May 2015 Last revised: 18 May 2017

See all articles by Marketa Trimble

Marketa Trimble

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: April 30, 2015

Abstract

Online commercial activity is subject to laws that are mostly the laws of individual countries, even if some of the laws happen to be highly harmonized among the countries. In the online context, the enforcement of national laws is problematic: A country may lack the ability to enforce its laws against actors who are located outside the country and who locate their assets outside the country. The internet makes it extremely easy for actors to act from remote locations, including from outside the country in which their internet acts cause effects, and to locate their assets outside the country. Although alternative means of enforcement exist that target other persons and entities, such as intermediaries, the alternative means also present challenges. This chapter discusses the enforcement of national laws on the internet, including enforcement against absent actors, and considers whether that enforcement can be improved.

There are at least three significant reasons to improve the enforceability of national laws on the internet and their enforceability against absent actors. First, as a general rule, effective laws require the possibility of effective enforcement; to the extent that laws should be followed, countries have to be able to enforce the laws, including laws in the online context and against absent actors. Second, skepticism about the enforceability of laws on the internet permeates legislative and policy debates; doubts about the feasibility of effectively enforcing laws on the internet seem – at least in some areas of law – to impede progress on substantive issues. Improvements in enforceability would bring clarity to the debates on substantive issues and contribute to better substantive policy choices. Third, improvements in the enforceability of national laws against absent actors are also desirable because alternative enforcement mechanisms have specific problems and cannot fully replace direct enforcement against absent actors.

Keywords: internet, enforcement, international law, conflict of laws, private international law, jurisdiction, choice of law, recognition, geoblocking, geolocation, injunction, territoriality

Suggested Citation

Trimble, Marketa, Extraterritorial Enforcement of National Laws in Connection with Online Commercial Activity (April 30, 2015). RESEARCH HANDBOOK ON ELECTRONIC COMMERCE LAW, John A. Rothchild ed., Edward Elgar, 2016; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2600925

Marketa Trimble (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
146
Abstract Views
1,251
rank
199,858
PlumX Metrics