EQUUSTEK V GOOGLE: LA RHÉTORIQUE DE LA VIRTUALITÉ EN DROIT INTERNATIONAL PRIVÉ
Keywords:Equustek, Private international law, International jurisdiction, Cyberspace, Territoriality, Legal discourse, Rhetoric
AbstractThis paper examines the case of Equustek v. Google, currently pending before the Supreme Court of Canada, and proposes a novel approach to the cyberspace debate in private international law. The author categorizes the rhetoric of the debate under two different themes: virtuality and internationalism. The virtuality rhetoric calls for the adaptation of traditional territorial connections as a result of their incompatibility with cyberspace. The rhetoric of internationalism calls instead for the adaptation of traditional territorial connections by highlighting the virtues of globalization and innovation. The author argues that the reform of Canadian private international law in the 1990s corresponds to the nature of the legal challenges associated with the democratization of a “borderless” cyberspace. Thus, cyberspace must be considered in light of the rules of private international law as shaped by internationalist rhetoric. This analysis provides insight into the forces at work in the Google case and the positions and attitudes underlying them. It also facilitates an adequate assessment of the legal ramifications of cyberspace in private international law. The author concludes by arguing that political and social considerations shape the development of conflict rules much more than the technical nature of any given medium. Conflict rules are not developed in the abstract and nor should the corresponding legal discourse.
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