Towards a cosmopolitan vision of conflict of laws: redefining governmental interests in a global era.

• Author: Berman, Paul Schiff
• Position: Choice of Law and Jurisdiction on the Internet

It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the Internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling (1) to chat rooms (2) to auction sites, (3) and seeking to enforce territorially based rules regarding trademarks, (4) contractual relations, (5) privacy norms, (6) "indecent" content, (7) and crime, (8) among others. These assertions of national authority have helped to reawaken scholarly interest in the classic triumvirate of topics historically grouped together under the rubric of conflict of laws: jurisdiction, choice of law, and recognition of judgments.

In a previous article, (9) I argued that territorially-based conceptions of legal jurisdiction may no longer be adequate in an era when ideas of bounded nation-state communities operating within fixed territorial borders are under challenge. I offered instead what I called a cosmopolitan pluralist conception of jurisdiction: cosmopolitan because it recognized the possibility that people can hold multiple, sometimes nonterritorial, community affiliations; and pluralist because it acknowledged that forms of legal (or quasi-legal) jurisdiction can be asserted by communities beyond those represented by official state-sanctioned courts.

This Essay turns the focus to choice of law and recognition of judgments. Analyzing three recent U.S. cases (two involving choice of law and one addressing recognition of judgments), I seek to apply some of the principles of cosmopolitanism to consider how courts should understand their institutional role in cases raising multinational concerns. (I leave to a future article the issue of how the insights of legal pluralism might inform conflict of laws.) The two choice-of-law cases, GlobalSantaFe Corp. v. Globalsantafe.com (10) and Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, (11) both concerned the application of U.S. trademark law to transnational Internet domain name disputes. The third, Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, (12) addressed whether or not a French judgment about Internet content accessible in France should be recognized by a U.S. court. Significantly, in each of the three cases, the judges failed even to conceive of the issues raised in conflicts terms. Instead, they simply assumed that U.S. law should apply, and though they included some bland statements about the importance of comity, there was no sustained discussion in any of the three decisions concerning how the choice of governing legal norms should be made. Thus, simply surfacing the way in which classic conflicts debates bear on these cases may itself be useful. In addition, I believe a cosmopolitan perspective might have altered the court's approach (if not always the result) in each case.

Taking seriously the observation that in conflicts scholarship there is truly nothing new under the sun, (13) the cosmopolitan perspective I offer here does not purport to create a new theory of choice of law. Instead, it combines aspects of the Restatement (Third) of Foreign Relations Law, as well as the three major choice-of-law regimes of the twentieth century--vested rights, governmental interests, and the substantive law method--to shape an overall attitude with which judges can approach cases involving conflicting transnational legal norms. This attitude starts from the idea that governments have an interest not only in helping in-state litigants win the particular litigation at issue, but a more important longer-term interest in being cooperative members of an international system and sharing in its reciprocal benefits and burdens. Similarly, with regard to judgment recognition, the cosmopolitan perspective asks judges to consider the independent value of enforcing a foreign judgment, even when that judgment is contrary to local policy choices. Moreover, the cosmopolitan approach focuses less on literal contacts with a territorially-based sovereign entity and more on the extent to which the various parties might be deemed to have affiliations with the possible communities seeking to impose their norms. Thus, while derived from various extant conflicts theories, the cosmopolitan perspective yields a distinctive approach, and one that I believe is better suited to a world of interconnection, interrelationship, and multiple community affiliations.

My discussion proceeds in four parts. First, I describe the three cases, noting the ways in which each of the U.S. courts involved managed to discount the possibility of deferring to the actions of foreign courts. Second, I briefly summarize the major twentieth-century choice-of-law approaches and suggest a perspective that blends aspects of all three (as well as the Third Restatement of Foreign Relations Law), while also drawing on insights from the voluminous interdisciplinary literature on cosmopolitanism. Third, I argue that in recognition of judgments, as in choice of law, deference to foreign court judgments might sometimes be an independent value, and I suggest that some of the principles that govern the recognition of judgments in the domestic U.S. context might therefore also apply transnationally. Finally, I return to the cases and discuss how the cosmopolitan perspective on choice of law and judgment recognition described in the previous sections might have affected the courts' analyses. (14) In conclusion, I suggest an ongoing research agenda for further refining and developing a more comprehensive cosmopolitan approach. Certainly, as these cases make clear, reconceptualizing the principles underlying court-to-court relations is essential in a world where the idea of a transnational community of courts is fast becoming one of the dominant realities of twenty-first century law. (15)

1. A PAROCHIAL VISION OF CONFLICT OF LAWS: THREE CASE STUDIES

   The three cases described in this section all take the view, explicitly or implicitly, that U.S. law must be applied to the transnational dispute at issue. That, in and of itself, is not necessarily cause for concern, but it is striking that these courts do not even engage in traditional conflicts analysis to reach their conclusions. Instead, simply because U.S. law may apply, the judges seem to assume that U.S. law should apply, even without any sustained discussion of other possible outcomes. At most, there is some consideration of comity. But comity is a weak analytical framework because it comes into play only as a discretionary restraining factor after the courts have already decided that U.S. law applies. Comity analysis, therefore, is not sufficient to replace a serious inquiry concerning the principles needed to determine which legal rules should govern in the first place.

   1. Choice of Law

      1. GlobalSantaFe Corp. v. Globalsantafe.com

         Historically, the boundaries of trademark law have been delineated in part by reference to physical geography. (16) Thus, if I own a store in New York City called "Berman's," I will not, as a general matter, be able to prevent a person in Australia from opening a store that is also called "Berman's," even if I have previously established a trademark in my name. The idea is that customers would be unlikely to confuse the two stores because they are in markets that are spatially distinct. (17) In the online world such clear spatial boundaries are collapsed because, as the domain name system is currently organized, there can be only one bermans.com domain name, and it can only point to one "location." (18)

         In the early to mid-1990s, as corporations and entrepreneurs began to understand the potential value of a recognizable domain name, pressure increased to create trademark rights in such names. In response, Congress first passed the Federal Trademark Dilution Act (19) and then the Anticybersquatting Consumer Protection Act (ACPA), which provides an explicit federal remedy to combat so-called "cybersquatting." (20) According to the congressional reports, the ACPA is meant to address cases where non-trademark holders register wellknown trademarks as domain names and then try to "ransom" the names back to the trademark owners. (21)

         Nevertheless, even if one believes that reining in "cybersquatters" is a laudable goal (and that goal itself has been questioned), (22) there can be little doubt that the application of trademark law to domain names has meant that trademark law has become unmoored to physical geography and is now more likely to operate extraterritorially. Potentially, even those who are legitimately using a website that happens to bear the name of a famous mark held by an entity across the globe could be forced to relinquish the name. (23) In addition, this unmooring of trademarks from territory creates the possibility that individual countries will interpret their trademark laws expansively, thereby reducing trademark rights "to their most destructive form": the mutual ability to block (or at least interfere with) the online use of marks recognized in other countries. (24) Moreover, each of the parties claiming ownership in a trademark could sue in a different country, and, because of differences in substantive law, each party could win. (25)

         This is the backdrop for GlobalSantaFe Corp. v. Globalsantafe.com. (26) On September 3, 2001, Global Marine, Inc. and Santa Fe International Corporation announced their agreement to merge into an entity to be known as GlobalSantaFe Corporation. (27) Less than a day later, Jongsun Park, a citizen of South Korea, registered the domain name globalsantafe.com with the Korean domain name registrar Hangang. (28) In response, Global...