Recueil des cours, Collected Courses, Tome 415

Peter D. Trooboff, born on 22 June 1942 in Baltimore, Maryland, United States. Education: Columbia College (AB cum laude, 1964); Institut d’Etudes Européennes, Paris, France (Junior Year Abroad) (1962-1963) (courses at the Institut d’Etudes Politiques with Professors Aaron, Grosser and Vedel); Harvard Law School (LLB cum laude, 1967); London School of Economics (LLM, 1968); Hague Academy of International Law (Diploma cum laude, 1968). Legal practice: Associate, Partner and Senior Counsel, Covington & Burling LLP, Washington, DC (1969-1975, 1975-2007, 2007-present), practicing in the fields of public and private international law including international arbitration, international trade (national security and foreign trade controls), overseas investment by US interests, investment in the United States, investment disputes and international litigation (particularly foreign state immunity and personal jurisdiction) and family financial arrangements and wealth management for non-US residents. Bars: New York State (1968); District of Columbia (1970). Academic positions: Lecturer of a course on foreign state immunity (Summer 1986) the General Course in Private International Law (Summer 2008) and special course with Professor Andreas Bucher (Summer 2014) at the Hague Academy of International Law; Lecturer in external programs in Beijing (1987), Harare (1993) and Santo Domingo (2008). Memberships and affiliations: Hague Academy of International Law, Member of Curatorium (1991-2019), Chairman of Committee on Modernization and Committee on Publications; American Society of International Law, President (1990-1992); American Journal of International Law, Member of Board of Editors (1980-1992; 1994-2004), Honorary Editor (2007-present); Member of Secretary of State’s Advisory Committee on Private International Law (1977-present); Member of United States delegation to the Second Inter-American Specialized Conference on Private International Law (Montevideo, 1979) and Third Inter-American Specialized Conference on Private International Law (La Paz, 1994); Member of United States delegation to the Hague Conference of Private International Law in its consideration of a proposed General Convention on the Recognition and Enforcement of Judgments and completed Hague Convention on Choice of Court Agreements (1992-2005); Delegate of the American Society of International Law to the American Council of Learned Societies (three terms, 2002-2013); Elected Member of the Executive Committee of Delegates (2009-2013); Member of American Law Institute, Adviser for Project on Recognition and Enforcement of Foreign Judgments, Project on Principles of World Trade Law and Restatement (Fourth) of the Foreign Relations Law of the United States; Member of Council on Foreign Relations (to 2012) and The Washington Institute of Foreign Affairs (to 2010). Awards: Recipient Manley O. Hudson Medal from the American Society of Inter national Law (presented at the Annual Meeting of the Society in Washington, DC on 5 April 2018) (“awarded to a distinguished person of American or other nationality for outstanding contributions to scholarship and achievement in international law”, see https://www.asil.org/sites/default/files/ASILHonors.pdf?v=201908). Recipient of the Leonard J. Theberge Award for Private International Law from the American Bar Association, Section of International Law (presentation at Spring Meeting of Section in New York City on April 15, 2010) (“to honor persons who have made distinguished longstanding contributions to the development of private international law”).

Preface [p21]

Chapter I. Introduction and overview [p23]

A. A practitioner addresses the legal challenges for private international law created by new technology [p23]

B. Overall approach to private international law and importance of understanding its principles [p28]

C. Overview of globalization and pertinence to private international law: Some perspectives pertinent to our study [p32]

D. Defining the Internet and its relationship with globalization [p38]

E. Some models for the future in light of the cases from the United States and other jurisdictions [p44]

Chapter II. Personal jurisdiction: establishing a framework for understand ing the US Supreme Court decisions on personal jurisdiction under the US constitution [p45]

A. Personal jurisdiction: Brief theoretical overview [p45]

B. The von Mehren-Trautman framework for personal jurisdiction [p48]

C. The problem with trying to be comprehensive [p49]

D. Evolution of due process requirements in US Supreme Court cases: Keeton and Calder decisions [p51]

1. Keeton v. Hustler Magazine (1984): Jurisdiction based on distribution of libelous publications [p54]

2. Calder v. Jones (1984): Jurisdiction based on publication of a libelous article focused on the location where the injured party lived and worked [p56]

E. The role of long-arm statutes in US personal jurisdiction cases [p58]

F. Early examples of American Internet cases before the most recent Supreme Court decisions [p63]

1. Zippo Mftr. Co. v. Zippo Dot Com, Inc: Focus on the extent of interactivity of websites [p64]

2. Gorman v. Ameritrade (2002): Applying Zippo to general jurisdiction issues arising from website activities [p66]

3. Dudnikov v. Chalk & Vermilion Fine Arts, Inc. (2008): Specific jurisdiction over copyright infringement directed to one state for impact in another [p68]

4. uBID, Inc. v. The GODaddy Group, Inc. (2010): Specific jurisdiction based on cybersquatting damaging residents of a parti cular state [p70]

5. Clemens v. McNamee (2010): Denial of specific jurisdiction – publication not sufficiently focused on residence state of plaintiff [p72]

G. Two new Supreme Court decisions on general jurisdiction: Goodyear and Daimler [p73]

1. Goodyear Dunlop Tires Operations, S.A. v. Brown: General jurisdiction only if the defendant is “essentially at home” [p74]

(a) Facts and Court of Appeals holding [p74]

(b) Position of several amici briefs [p75]

(c) Position of the Solicitor General of the United States [p77]

(d) Decision of the Supreme Court [p77]

2. Daimler AG v. Bauman : No general jurisdiction for “continuous and systematic general business contacts” unless the defendant is essentially at home [p80]

(a) Facts and Court of Appeals decision [p80]

(b) Position of amici briefs [p82]

(c) Position of the Solicitor General of the United States [p83]

(d) Oral argument [p85]

(e) Decision of the Supreme Court [p85]

(f) Some of the many issues raised by commentators on Good year and Daimler [p88]

3. BNSF Railway Co. v. Tyrrell: Daimler applies domestically and internationally [p90]

H. Two Supreme Court cases on specific jurisdiction and attempts to persuade the Court to address aspects of personal jurisdiction arising from Internet usage [p93]

1. J. McIntyre Machinery Ltd. v. Nicastro: No specific jurisdiction when nationwide sales are not directed at a particular state [p93]

(a) Facts and New Jersey Supreme Court decision [p93]

(b) Specific jurisdiction issue raised during the Daimler oral argument [p93]

(c) Other amici briefs in McIntyre [p94]

(d) Exchanges during oral argument reflecting issues raised in amici briefs [p96]

(e) Decision of the Supreme Court in McIntyre [p97]

(f) Some of the commentary on McIntyre [p100]

(g) Jurisdictional implications of establishing and operating subsidiary companies: A European approach [p101]

2. Walden v. Fiore: No specific jurisdiction for claim based on alleged tortious conduct not focused on forum state [p106]

(a) Facts and Court of Appeals decision [p106]

(b) Amici briefs raises Internet issues [p107]

(c) Internet precedents raised during oral argument [p108]

(d) Decision of the Supreme Court [p109]

I. Supreme Court clarifies the relatedness requirement and need for causal link: Bristol-Myers Squibb v. Superior Court of California [p111]

1. Post-Walden specific jurisdiction issues [p111]

2. Decision of the Supreme Court [p114]

J. Applying recent Supreme Court cases in US Courts of Appeal cases involving use of the Internet [p117]

1. In Re Chinese-Manufactured Drywall Products Liability Litigation: Sale of defective Chinese drywall [p117]

2. Mavrix Photo, Inc. v. Brand Technologies, Inc.: Copyright infringement arising from Internet sales [p121]

3. Louis Vuitton Malletier v. Mosseri: Trademark Infringement through Internet Sales [p122]

4. Advanced Tactical Ordnance Sys. v. Real Action Paintball: Walden applied to alleged trademark infringement over the Inter net [p124]

5. C. W. Downer & Co. v. Bioriginal Food & Science: Canadian company engaging and interacting in cyberspace with Massa chusetts investment bank [p127]

6. Waldman et al. v. Palestinian Liberation Organization et al.: Denial of personal jurisdiction for alleged terrorist attack [p128]

(a) Precedents in the Second Circuit Court of Appeals [p128]

(b) Decision of the Second Circuit Court of Appeals in Waldman v. Palestinian Liberation Organization [p132]

(c) Note criticizing the Second Circuit opinion in Waldman v. Palestinian Liberation Organization [p135]

Chapter III. The European Union Court of Justice, the Brussels I Regula tion and the Internet [p137]

A. Brief word on the role of the Advocate General in the CJEU [p138]

B. Overview of Brussels I Regulation provisions on personal juris diction and their pre-Internet interpretation by the CJEU [p139]

1. Bier v. Mines de Potasse: Jurisdiction at the place of wrongful conduct and the place of injury [p141]

2. Shevill v. Presse Alliance SA: Mosaic principle – damages limited to losses incurred in state asserting jurisdiction based on place of injury [p143]

3. Initial perceived difficulty with extending CJEU rulings to cases nvolving Internet usage [p145]

C. Société Pneus-Online Suisse v. Société Delticom: Do French courts consider website accessibility enough under the Brussels I Regulation for personal jurisdiction? [p146]

D. Evolution of interpretation of personal jurisdiction under Brussels I Regulation and Brussels I bis Regulation in eleven key CJEU cases [p150]

1. Pammer and Hotel Alpenhof: When does jurisdiction exist for contract claims under the consumer protection provisions of the Brussels Regulation? [p151]

(a) Facts [p152]

(b) Position of the Advocate General [p154]

(c) Decision of the CJEU [p158]

(d) Commentary [p159]

2. eDate Advertising/Martinez: Jurisdiction under the Brussels Regu lation for torts publicized over the Internet and damaging personality rights 166]

(a) Facts [p166]

(b) Opinion of the Advocate General [p167]

(c) Decision of the CJEU [p169]

(d) Commentary [p171]

3. Wintersteiger v. Products 4U: Jurisdiction over alleged infringe ment of intellectual property (trademark) rights [p177]

(a) Facts [p177]

(b) Position of the Advocate General [p178]

(c) Decision of the CJEU [p180]

(d) Commentary [p181]

4. Daniela Mühlleitner v. Ahmad Yusufi and Wadat Yusufi: Does jurisdiction under the consumer protection provisions of the Brussels I Regulation require conclusion of the contract over the Internet? [p183]

(a) Facts [p184]

(b) Position of the Advocate General [p185]

(c) Decision of the CJEU [p187]

(d) Commentary [p189]

5. Football Dataco and Others v. Yahoo! UK Ltd and Others: Is targeting required for jurisdiction over alleged infringement of sui generis rights? [p190]

(a) Facts and position of the Advocate General [p190]

(b) Decision of the CJEU [p191]

6. Peter Pinckney v. KDG Mediatech AG: Does website accessibility alone support jurisdiction of a copyright infringement claim facilitated through Internet advertising? [p192]

(a) Scholarly anticipation of the issues [p192]

(b) Facts [p194]

(c) Position of the Advocate General [p194]

(d) Decision of the CJEU [p197]

(e) Commentary [p198]

7. Lokman Emrek v. Vlado Sabranovic (2013): Jurisdiction over cross-border sales to consumers supported by website publicity [p204]

(a) Facts [p204]

(b) Position of the Advocate General [p205]

(c) Decision of the CJEU [p209]

(d) Commentary [p210]

8. Coty Germany GmbH v. First Note Perfumes NV (2014): Jurisdiction over defendant for third-country tortious conduct having indirect effects in the forum state [p212]

(a) Facts, position of Advocate General and decision. [p212]

(b) Decision of the CJEU [p214]

(c) Commentary [p215]

9. Pez Hejduk v. EnergieAgentur.NRW GmbH (2015): Extent of Damages Allowed for Copyright Infringement Through Internet Sales [p216]

(a) Facts [p216]

(b) Position of the EU Commission and the Advocate General [p217]

(c) Decision of the CJEU [p219]

(d) Commentary [p221]

10. H. Kolassa v. Barclays Bank plc: Bearer bonds decision raising significant issues about relationship between the claimant’s domicile and commercial links of the underlying claim [p225]

11. Concurrence Sàrl v. Samsung Electronics France SAS and Amazon Services Europe Sàrl (2016): Jurisdiction to grant injunc tive relief against Internet sales by third-country websites for violation of exclusive contract rights [p227]

(a) Facts [p227]

(b) Position of the parties, member states, the EU Commission and the Advocate General [p229]

(c) Decision of the CJEU [p234]

(d) Commentary [p235]

12. Bolagsupplysningen OÜ and Ingrid Ilsjan v. Svensk Handel AB (2017): Where may corporations file claims for infringement of personality rights and in which forum may they seek injunctive relief? [p238]

(a) Facts [p238]

(b) Position of the Advocate General [p239]

(c) Decision of the CJEU [p240]

(d) Commentary [p243]

(e) Status after Bolagsupplysningen of CJEU holdings on per sonal jurisdiction from a US perspective [p247]

Chapter IV. Personal jurisdiction cases from other nations involving uses of the Internet [p249]

A. Canadian cases: Rethinking required connecting factors from Internet use to show “real and substantial connection” to support personal jurisdiction [p249]

1. Equustek Solutions v. Google Inc.: Controversy over reach of Canadian personal jurisdiction and scope of injunctive powers [p249]

2. Commentary and more recent Canadian personal jurisdiction cases [p256]

B. Japanese perspectives and cases: Specific jurisdiction for related causes of action arising from Internet usage [p262]

C. Chinese cases: Courts allow favorable grounds for jurisdiction over infringement claims for nationwide damages arising from Internet usage [p264]

D. Latin American cases: Initial study shows parallels with CJEU cases and place of injury focus in Internet usage cases [p268]

E. Cases from India: Jurisdiction over infringement cases [p270]

Chapter V. Defining and agreeing on the principles of personal juris diction for cases arising from Internet usage [p276]

A. The first try: Preliminary draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (1999) [p276]

B. Success at last: 2019 Hague Convention on Recognition and Enfor cement of Judgments in Civil or Commercial Matters [p280]

1. Overview of the contract and tort provisions of the 2019 Con vention [p280]

2. Background to the contract and tort provisions of the 2019 Convention [p282]

C. American Law Institute: Principles governing intellectual property jurisdiction (2008) [p285]

D. European Max Planck Group: Principles on conflict of law in intel lectual property (2011) [p291]

E. Latest proposals to restate the law of personal jurisdiction in cases arising from Internet usage [p304]

1. International Law Association: Draft guidelines on jurisdiction and applicable law (2019) [p304]

2. Institute of International Law: Issues of jurisdiction, applicable law and enforcement of foreign judgments (2019) [p305]

Bibliography [p310]