Jurisdictional issues and consumer protection in cyberspace: The view from down under

Numerous transactions in cyberspace involve contact between consumers and vendors of goods or services. Given the ease with which such contact can be established over great physical distances, many of the transactions will be international in the sense that each of the transacting parties will be based in different countries. For example, a consumer who resides in Australia may buy a pair of shoes from a business located in Sweden via the website of the business. On its face, such a transaction will have links to two countries: Australia and Sweden. At the same time, links to other countries might also arise eg if the website of the Swedish business is supported by a server machine situated in the USA, or if the purchased shoes have been manufactured by a company in China. These sorts of transactions will not only have links to two or more countries; they will also have links actual and/or potential to two or more legal systems. Thus, they may be deemed to be not just international in character but also interlegal. Should there arise a legal dispute in connection with such a transaction, three main issues will need to be tackled. In the first place, it will be necessary to determine which country s court has competence to resolve the dispute. This issue is often summed up in terms of forum jurisdiction or simply jurisdiction. The second main issue concerns which country s law should be applied to resolve the dispute. This issue is often summed up in terms of legislative or prescriptive jurisdiction or simply choice of law. The third issue concerns the extent to which a judicial decision made in one country may be recognised and enforced in other countries. This issue is often summed up in terms of enforcement jurisdiction or simply enforceability. The outcome of each of these issues will tend to have great significance for consumers. Returning to the above hypothetical example of an Australian consumer purchasing shoes from a Swedish business, let us assume that the consumer finds that the delivered shoes do not match the description of them given on the vendor s website (<www.rightshoes.com>). It will obviously be much less costly for the consumer to seek redress in such a case through the Australian courts rather than through a Swedish court. As for the issue of choice of law, this will be important to the consumer given that considerable variation may exist between the respective laws of each country dealing with contract and consumer protection. Finally, even if the consumer succeeds in litigation, the favourable judgement of the local court will not be of much help if it cannot be enforced overseas. In this paper, we shall focus on the issues that arise with respect to forum jurisdiction. For reasons of time and space, we do not cover all such issues but focus on a selection of the main such matters. It should also be emphasised that we are primarily concerned with situations in which (at least) one of the parties to an Internet transaction is based in Australia and (at least) one of the other parties to the transaction is located outside Australia. Jurisdictional issues in relation to interstate, albeit wholly Australian, transactions are not treated here.