University of Melbourne Law School Research Series
Last Updated: 12 June 2008
Melbourne Law School
 UMelbLRS 1
Towards and Beyond an Australian Private International Law of Cross-Border Communications Disputes
Megan Richardson and Richard Garnett
(2006) 11(4) Media and Arts Law Review 331
Towards and Beyond an Australian Private International Law of Cross-Border Communications Disputes
Megan Richardson[*] and Richard Garnett[**]
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.
In May 2006 a round-table conference on cross-border communications was held at the University of Melbourne. Organised under the auspices of the Centre for Media and Communications Law, the conference brought together experts on private international law, intellectual property as well as defamation and privacy to present to an Australian audience some of the recent problems and developments in the area of cross-border communications and to make tentative suggestions for their resolution. The papers are published in this issue of the Media & Arts Law Review. Rather than seek to summarise them in a comprehensive way, in this introductory paper we have elected to draw on them selectively in giving 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.
Origins of Australian PIL
The body of law known as ‘private international law’ or ‘conflict of laws’ was first developed in mediaeval Europe but arrived comparatively late to England in the 19th century. One of its original aims was to define the scope and limits of national sovereignty over situations and activities that in various ways crossed national borders. As the above different labels suggest, corresponding to the titles chosen for textbooks of the day, this was an area much influenced  by scholars. English courts had traditionally ignored cases containing a foreign element, only asserting jurisdiction and applying their law to events and persons within their territory, over which they considered themselves absolutely sovereign. However, the vast expansion of trade and interaction particularly with Europe and the colonies, the need to protect local English plaintiffs in dealings with foreigners, and scholarly writings which brought European approaches to the attention of English audiences led to a change of policy. English courts increasingly felt impelled to determine whether they or a foreign court should adjudicate a matter with connections to more than one country and whether local or foreign law should be applied. What also drove this movement was a sense of reciprocity, which suggested that legal recognition of foreign laws and judgments was ‘a matter of enlightened self-interest.’ Such utilitarian concerns were inevitably likely to be more appealing to a British audience than the older, more (European), moralistic concerns about ‘comity’ or goodwill towards foreign laws and institutions.
The Common Law Procedure Act 1852 (UK) was a significant manifestation of this change. This legislation made it possible, for the first time, for a plaintiff to initiate proceedings against a defendant outside England with leave of the court. For many years, this legislative jurisdiction was regarded as ‘exorbitant’, an interference with the sovereignty of other countries, and to be exercised in limited cases, although doctrines of forum non conveniens were developed under the laws of all Commonwealth countries to prevent forums from exercising too wide a jurisdiction over foreign defendants. More recently, there has been a further general trend to liberalise the grounds and conditions under which personal jurisdiction will be exercised, with cases involving a foreign element no longer regarded as rare and exceptional. Similarly, in the area of recognition and enforcement of foreign judgments, courts in the 18th and early 19th centuries displayed some reluctance to concede their sovereignty in matters of giving relief. Recognition was in this period still explained by the vague and elusive concept of comity. However, later in the 19th century the rationale became the more secure notion of obligation. A judgment of a foreign court was to be recognised in England because it created an obligation on the defendant to pay the debt (in a sense the plaintiff’s ‘property’) which the English court was bound to enforce. Unfortunately the same reasoning was not extended to non-money judgments with the result that foreign injunctions and  performance decrees could not be enforced.
As to the choice of law rules themselves, the principles of freedom of contract and security of property, themes of 19th century commercial discourses, found parallels in courts’ readiness to accommodate party preferences as to applicable law on matters concerning contracts, while taking a more rigidly territorial approach to property rights. Property rights were, broadly speaking, treated as vesting where the property was situated and in the case of immovables (land) were also exclusively under the jurisdiction of the local courts. The latter conclusion was as much about national sovereignty as security of property. As said in Story on Conflict of Laws, quoted by Lord Herschell in the Moçambique case where the rule was confirmed, ‘as property of this kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state on which it depends’. Conversely, in the field of torts, Commonwealth countries long clung to a choice of law rule that effectively gave control to the law of the forum. The decision in Phillips v Eyre, holding that the claim must be actionable under lex fori as well as lex loci delicti before a remedy would be granted, involved deep questions of colonial policy, concerning conduct in the brutal putting down of an uprising in Jamaica by the British Governor who was subsequently recalled amidst controversy in England but indemnified from liability under Jamaican law. However, the lex fori constraint was not widely understood as a simple constraint of public policy in the late 19th century. If it had it might have been accorded a more flexible treatment later on (as it was in the US). Rather, it was elucidated as a firm rule derived, according to a leading textbook of the day, from an understanding that British citizens entering a foreign country ‘submit ... to its special laws only so far as legal science selects them as the rules of decision in each case’. In the 20th century, legal positivism ensured that the rule in Phillips v Eyre became crystallised. So it lasted across the Commonwealth world for much of the century, requiring statutory reform in the UK to ameliorate its rigidity, only abandoned by the High Court in Australia in 2002, and in some parts of the Commonwealth still remaining in much the original form.
Implications for Cross-border Communications Disputes
 The broad classification of choice of law rules into preference-based for contracts, situational for property, forum governance for torts (later modified in some jurisdictions), coupled with an increasing readiness on the part of courts to take jurisdiction over disputes with a foreign element, has had profound implications for cross-border communications disputes. Although not many cases came before the courts before the First World War, some emerged and their treatment according to the tripartite system noted above paved the way for resolution of like disputes. There was a certain arbitrariness involved in applying the system to matters concerning information. For one thing, it was already becoming evident at the turn of the century that information easily transcended national boundaries and might even operate in more than one place at the same time. For another, the distinctions to be drawn between matters of ‘property’, ‘tort’ and ‘contract’ were more attenuated when the value of information lay in its ability to be exploited and transmitted rather than possessed and held against the world, and conversely any harm that might be suffered derived from its misuse rather than physical damage. Yet, rather than consider appropriate rules tailored to particular features of cross-border communications disputes, Commonwealth (and non-Commonwealth) courts and legislatures simply sought to extend their established principles from the real world.
A good example is intellectual property. In Potter v Broken Hill Pty Co Ltd the Australian High Court after some debate classified patent infringement as akin to trespass to land. Trespass to land was a matter for the law and courts of the situs according to the House of Lords in the Moçambique case (at least where there were questions of title raised in the proceedings). Thus the decision in Potter was that, applying the Moçambique rule, the law of New South Wales, where the patent was issued, applied and only its courts could take jurisdiction over the question of infringement (at least where combined with a claim going to its validity). As Richard Garnett explains in his essay which follows, the Moçambique rule still continues to apply to IP rights in Australia (although to a lesser extent the UK as a result of its membership of the EU), subject to statutory modification in New South Wales. Although the High Court has hinted that the rule might be reconsidered if a  suitable case arose, as yet there is no sign of it. The Moçambique rule has been most problematic for copyright cases (where the absence of a registration system makes the land analogy more strained) and trade mark cases (where common law rights, which lie outside the rule, may substantiate and continue alongside registered rights). And it is especially problematic in cases involving internet transactions which very commonly have cross-border features. These are difficult to reconcile with the Moçambique rule’s notion of a single situs/forum and are also sharply at odds with the traditionally territorial nature of intellectual property laws themselves.
These issues are closely investigated in one of the IP–PIL papers in this symposium: Graeme Austin’s paper on the Kazaa music-downloading case. Professor Austin concludes that a narrowly territorial approach to questions of copyright infringement sits uncomfortably with the practical fact that on the internet ‘massive amounts of copyright infringement [are] facilitated by technologies that link primary infringers in every nation in which there is internet access’, and notes that Wilcox J was able to avoid this problem because the Copyright Act 1968 (Cth), as recently amended, specifies that the music owner’s right to communicate ‘to the public’ means ‘to the public within or outside Australia’ (and also does not impose any apparent territorial limit on ‘authorisation’ which was the gist of the complaint against the Kazaa parties). That said, Professor Austin expresses some concern about the lack of attention paid by the court to the decision’s obvious international implications — a point equally made for the US Supreme Court’s parallel decision in the Grokster case which also has clear implications for downloading practices worldwide. On the other hand, Professor Ricketson’s conclusion is that the narrowly territorial approach adopted by Merkel J with respect to trade mark ‘use’ in the Ward Group case, requiring deliberate targeting of users within the jurisdiction (not just use within the jurisdiction!), means that ‘innocent’ foreign internet advertisers are privileged when it comes to potential trade mark infringement within the jurisdiction (compared, say, to those whose activities occur wholly within the jurisdiction) and that there is an unreality in this approach which ‘ignores the universal and seamless character of the internet’.
Non-statutory IP rights were even less easily able to be classified like land and generally they have been treated as personal property for choice of law purposes — as, for instance, in Lecouturier v Rey where the House of Lords held that the secret recipe and associated foreign — most notably English — reputation of the Carthusian Order of Monks in their Chartreuse liqueur belonged to the monks notwithstanding dispossession of their properties in  France by French legislation. Lord Macnaghten said
[t]o me it seems perfectly plain that it must be beyond the power of any foreign Court or any foreign legislature to prevent the monks from availing themselves in England of the benefit of the reputation which the liqueurs of their manufacture have acquired here.
As to the tort of passing off and the equitable wrong of breach of confidence, while the first and possibly the second were subject to the rule in Phillips v Eyre the proposition was not tested in early cases. The inability to enforce an injunction granted by a foreign forum was sufficient reason (when cases were relatively few anyway) to limit claims to the place where the conduct sought to be enjoined occurred. Nor was it considered whether breach of confidence might better be classified as akin to breach of contract for choice of law purposes and subject to its flexible party-centred rules — although it might have been the most logical conclusion if the claim involved a relationship of confidence, especially considering such cases often involved a claim for breach of contract as well. However, a tort analogy arguably appears to have been used in the recent privacy/breach of confidence case of Douglas v Hello! Ltd (No 3). In this case, concerning confidential information obtained in New York but published in the UK, it was held that, although breach of confidence is not ‘a tort’, an analogy might be drawn to ‘delict’. Under current UK law tort is governed by lex loci delicti (subject to displacement in appropriate cases in favour of the proper law, that is the law of closest connection). Similarly, for breach of confidence the Court of Appeal decided that, since ‘[t]he cause of action [was] based on the publication in this jurisdiction and the complaint [was] that private information was conveyed to readers in this jurisdiction’, English law applied.
Cross-border defamation was held to be subject to the rule in Phillips v Eyre in the ‘Brazilian pamphlet’ case of Machado v Fontes. However, by 1897 when the case was decided, the possibility of cross-jurisdictional publication of newspapers, magazines and pamphlets could be seen, as well as the possibility that the real damage to a plaintiff’s reputation might be suffered in the place that the plaintiff resided rather than the place, or places, where actual  publication occurred — as in this case where the pamphlets complained of were distributed in Brazil but both plaintiff and defendant were in England. The Court of Appeal opted for a very liberal reading of the double actionability principle as satisfied, once liability under lex fori is established, by either civil or criminal liability being available under lex loci delicti. This heretical treatment of Phillips v Eyre was roundly criticised as giving even less of a role to lex loci delicti than the double actionability rule as originally conceived. But it remained law in the UK for some 70 years (when it was overturned in a personal injury case), and was also applied in Australia, notwithstanding cautionary expressions from Australian courts. English law still struggles with defamation, the one category exempted from statutory abrogation of the Philips v Eyre rule. Indeed, as Campbell McLachlan points out in his contribution to the symposium, England has become a ‘magnet forum’ for defamation suits (even in cases with limited connections to the UK), because plaintiffs are aware that English defamation law will likely favour them. In this respect at least Australian courts have gone further towards modernising Australian cross-border communications law. Having already determined in Renault v Zhang that for tort actions generally the double actionability rule should be replaced with a simple lex loci delicti rule, in the internet defamation case of Dow Jones & Co Inc v Gutnick, the High Court accepted that ‘locus’ may characterised differently depending on the ‘nature’ of the tort and may have a flexible component — so that, for instance, in the case of internet defamation the place of the tort is ‘ordinarily’ the place (or places) the information is downloaded and read.
We have previously suggested that the Gutnick court’s flexible approach to locating ‘place’ comes close to a proper law of the tort approach given that a multiplicity of factors may be relevant to assessing place on the High Court’s analysis. But in his paper on multi-jurisdictional defamation in this symposium Matt Collins points out that there is one distinct advantage to a full proper law approach, being that ‘it leads in all cases to a court applying a single substantive legal standard, regardless of the number of the number of jurisdictions in which defamatory material has been published’. At present, as he puts it, defendants are left potentially subject to different national laws, and most importantly from a practical perspective ‘having to plead and prove defences from a myriad of different places’. Since Gutnick, there has been an important legislative incursion on the Dow Jones principle in 2005-06 uniform state and territory defamation laws which, for defamatory publications across borders  within Australia, provide a proper law choice of law rule based on closest connection. Like Dr Collins, who sees the legislation as an improvement over Gutnick, we might hope that this will become a model for further reform of the position with respect to international defamation cases.
The Future: A More International Approach Needed
However, there is only so much that can be done at the national level — especially when, as we have endeavoured to show, national approaches may vary significantly across jurisdictions even within the same broad family of Commonwealth nation states. Also, as Kimberlee Weatherall amply displays in her paper on alternatives to private international law, only so much can be achieved by way of substantive law harmonisation and the kinds of technological self-help measures that parties themselves might seek to employ. Thus the pressing need is for development of international private international law standards for cross-border IP and (other) communications disputes. By now it should be abundantly clear that national borders may count for little when information is dispersed through the internet, over radio or television, or via a mobile phone — or at least they may count differently when the physical locus of information may be no more than a place it happens to be at the moment, registration of rights may be an automatic process, and the forum may simply be the place where the defendant happens to be located or assets are held. In these circumstances, to have a potentially different approach to questions of jurisdiction, choice of law and recognition of judgments depending on where the action is brought is both illogical and impractical — as well as potentially undermining the principle of reciprocity on which the field of private international law is based.
As Professor McLachlan notes, one might have thought international reform of private international law was an appropriate task for the Hague Conference on Private International Law, established in 1893 with the goal of working for progressive unification of the rules of private international law. But, as he also points out, in part because of diversity in national standards on matters such as defamation, privacy and aspects of intellectual property (and the historically territorial approach applicable to the latter), it proved difficult to achieve uniform agreement on the approach to be applied. The result is that the Conference has achieved little for IP and (other) communications disputes — by contrast with the great harmonisation of substantive laws achieved in the field of IP law under the aegis of international institutions such as WIPO and the WTO. Fortunately, other institutions, such as the American Law  Institute, have taken up the cause. The American Law Institute (ALI) recently promulgated some Draft Principles on Jurisdiction and Enforcement of Judgments in Intellectual Property Matters. Richard Garnett’s paper deals comprehensively with the ALI Principles. In brief, these would:
It is noteworthy that, as with the field of private international law at its inception, the major inspiration for the Principles was the work of scholars. Two architects of the Draft Principles, Rochelle Dreyfuss and Jane Ginsburg, early on observed that:
There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, ... [t]he ability to consolidate claims ... in one court, with the expectation that the judgment of that court will be recognized in all convention States, could reduce costs for all sides, conserve judicial resources on an international basis, and promote consistent outcomes. Second, a convention drafted for intellectual property disputes can take account of issues uniquely raised by the intangibility of the rights in issue. ... [Third] [t]he strong link between culture on the one hand, and intellectual production and utilization on the other, means that ... individual nations must be able to retain some control over the local conditions under which these products are created, exploited, and accessed. ... Other issues of prime interest to the information industries can also be considered. For example; provisions on contract disputes can be tailored to deal with mass-market contracts, which are becoming prevalent in certain intellectual  property transactions; provisions on infringement can be made sensitive to the interests of the ‘new media,’ such as Internet Service Providers.
It might be questioned whether the line should be drawn at IP rights, albeit broadly construed to include protection of trade secrets and unfair competition, or whether a more holistic approach should be taken to the various kinds of claims that may arise out of cross-border communications (including privacy and defamation). That said, the Draft Principles are an important first step towards a uniform position on the vexed questions of jurisdiction, applicable law and recognition and enforcement of foreign judgments in IP disputes. Given the proliferation of such disputes in recent years here at least the need for common approaches and solutions at the transnational level seems overwhelming.
[*] Associate Professor and Deputy Director, CMCL–Centre for Media and Communications Law, Law Faculty, The University of Melbourne.
[**] Professor, Law Faculty, The University of Melbourne; Consultant, Freehills.
instance, K von Savigny, Private International Law: A Treatise on the
Conflict of Laws and the Limits of their Operation in Respect of Place and
Time (trans and ed by W Guthrie), Stevens & Sons, London, 1869; J Story,
Commentaries on the Conflict of Laws, Foreign and Domestic: In Regard to
Contracts, Rights, and Remedies and Especially in Regard
to Marriages, Divorces,
Wills, Successions and Judgments, 1st ed, Hilliard Gray & Co, Boston,
1834; J Westlake, Treatise on Private International Law: The Conflict of Laws
with Principle Reference to its Practice in the English and other Cognate
Systems of Jurisprudence, 1st ed, W Maxwell, London, 1858; A V Dicey, A
Digest of the Law of England with Reference to The Conflict of Laws, 1st ed,
Stevens & Sons, London, 1896.
 See R H Jackson, ‘Full Faith and Credit — The Lawyer’s Clause of the Constitution’ (1945) 45 Columbia Law Review 1 at 30. For a modern reworking of such themes see A-M Slaughter, ‘Court to Court’ (1998) 92 The American Journal of International Law 708; and further R Garnett, ‘Policy and Pragmatism in the Conflict of Laws by Michael J Whincop and Mary Keyes’  MelbULawRw 12; (2002) 26 Melbourne University Law Review 236 at 240.
 Siskina v Distos Compania Naviera SA (The Siskina)  AC 210 at 254 (Lord Diplock).
 Tyne Improvement Commissioners v Armement Anversois S/A (The Brabo)  AC 326 at 357 (Lord Normand).
 See, eg, in Australia, Voth v Manildra Flour Mills Ltd  HCA 55; (1990) 171 CLR 538.
 Schibsby v Westenholz (1870) 6 LR QB 155 at 159 (Blackburn J).
 Cf R H Graveson, ‘Philosophical Aspects of the English Conflict of Laws’ (1962) 78 Law Quarterly Review 337 at 356.
 British South Africa Co v Companhia de Moçambique  AC 602.
 Ibid, at 623.
 (1870) 6
LR QB 1.
 Willes J nevertheless held that forum law was not violated as such indemnity statutes were common: see especially ibid, at 20–4. An interesting discussion of the controversy surrounding the case is given in AN Wilson, The Victorians, Arrow, London, 2003, pp 269–72.
 See J Westlake, Treatise on Private International Law, 2nd ed, Sweet & Maxwell, London, 1880, pp 220–1. Cf G C Cheshire, Private International Law, Clarendon Press, Oxford, 1935, p 216.
 See Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42.
 Regie Nationale des Usines Renault SA v Zhang  HCA 10; (2002) 210 CLR 491.
 Note that this principle remains the law in Commonwealth countries apart from Australia and Canada and is still applied to defamation actions in England: Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42, s 13.
  HCA 88; (1906) 3 CLR 479.
 Ibid, at 493–4, where Griffiths CJ rejected the conclusion of some judges in the Supreme Court of Victoria that the proper classification was one of tort and therefore the rule in Phillips v Eyre should be applied.
 British South Africa Co v Companhia de Moçambique  AC 602.
 See especially Potter v Broken Hill Pty Co Ltd  HCA 88; (1906) 3 CLR 479, at 494–5, where Griffith CJ characterised a patent right as a ‘monopoly’ which derives from the state ‘sovereign’ power and is ‘appurtenant’ to its territory, thus is akin to land.
 See R Garnett, ‘An Overview of Choice of Law, Jurisdiction and Foreign Judgment Enforcement in IP Disputes’ (2006) 11 Media & Arts Law Review.
 See Regie Nationale des Usines Renault SA v Zhang  HCA 10; (2002) 210 CLR 491 at 520 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
 G W Austin, ‘Kazaa and Grokster Across Borders’ (2006) 11 Media & Arts Law Review; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd  FCA 1242; (2005) 220 ALR 1. The issues were also addressed in Sam Ricketson’s paper on the Ward Group internet advertising case: Ward Group Pty Ltd v Brodie & Stone Plc  FCA 471; (2005) 143 FCR 479.
 See Copyright Act 1968 (Cth) s 10.
 MGM Studios Inc v Grokster Ltd 125 S Ct 2764 (2005).
 Ricketson, above n 23, at [insert page no if published].
  AC 262.
 See especially ibid, at 264 (Lord Macnaghten).
 Ibid, at 265, concluding that the French appellant’s registered ‘Chartreuse’ trade mark was therefore invalid (even apart from the fact that the dispossessory law was penal and unenforceable). Cf Lord Shaw at 270.
 As, for
instance, in Lecouturier v Rey where the monks successfully maintained a
passing off action with respect to the French appellant’s use of their
Chartreuse trade mark in England.
  EWCA Civ 595;  QB 125.
 At least
this seems to us to be the import of the Court of Appeal’s discussion at
ff — although for a different analysis,
pointing to the fact that the
court also claimed to find ‘persuasive’ a suggestion in the current
edition of Dicey & Morris on the Conflict of Laws that a
restitutionary classification might be used, see Campbell McLachlan’s
contribution to this symposium: ‘From Savigny
to Cyberspace: Does the
Internet Sound the Death-Knell for the Conflict of Laws?’ (2006) 11
Media & Arts Law Review .
 See Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42.
 Douglas v Hello! Ltd  EWCA Civ 595;  QB 125 at .
  2 QB 231.
 See Boys v Chaplin  AC 356.
 Hartley v Venn (1967) 10 FLR 151.
Varawa v Howard Smith Co Ltd (No 2)  VicLawRp 84;  VLR 509 at 526–30 (Cussen J); Koop v Bebb  HCA 77; (1951) 84 CLR 629 at 642–4 (Dixon CJ, Williams, Fullagar and Kitto JJ).
 See Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42, s 13.
 McLachlan, above n 32, at [insert page no].
  HCA 10; (2002) 210 CLR 491..
 (2002) 210 CLR 575.
 Ibid, at 606–7 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
 See generally M Richardson and R Garnett, ‘Perils of Publishing on the Internet: Broader Implications of Dow Jones v Gutnick’  GriffLawRw 7; (2004) 13 Griffith Law Review 74.
 M Collins, ‘Approaches Towards Jurisdiction and Choice of Law in Cases of Multi-Jurisdictional Defamation’ (2006) 11 Media & Arts Law Review.
 See Defamation Act 2005 (NSW); Defamation Act 2005 (Vic); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (WA); Defamation Act 2005 (Tas); Civil Law Wrongs (Amendment) Act 2005 (ACT); Defamation Act 2006 (NT).
 K Weatherall, ‘Can Substantive Law Harmonisation and Technology Provide Genuine Alternatives to Conflicts Rules in Intellectual Property?’ (2006) 11 Media & Arts Law Review.
For the optimistic beginnings, although noting that there was more enthusiasm on
the Continent for this essentially European institution
than in Britain, see T
Baty, Polarized Law, London, Stevens & Sons, 1914.
 WIPO is the World Intellectual Property Organization which is responsible for treaties such as the Berne Convention on copyright and neighbouring rights, the Paris Convention on patents, trade marks and industrial designs, the Madrid Protocol on trade marks, the Patent Cooperation Treaty and the 1996 Copyright Treaties. WTO is the World Trade Organization, which responsible for the Agreement on Trade-Related Intellectual Property Rights 1994 (TRIPs).
 Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transactional Disputes: Preliminary Draft No 4 (3 January 2006). For other initiatives see ibid, pp 21–2.
 R C Dreyfuss and J C Ginsburg, ‘Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters’ (2002) 77 Chicago-Kent Law Review 1065, at 1066–7.