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Abstract

This article focuses on the problems of jurisdiction in cross-border civil proceedings concerning an alleged violation of personality rights. There are no specific rules on jurisdiction for such torts in European Union law. In the current case law of the Court of Justice of the European Union (CJEU), Art. 7(2) of the Brussels I bis Regulation is applicable to such disputes. Nevertheless, the authors argue that the CJEU has misinterpreted this article when the claim is based on violation of personality rights, and has thus created a legal chaos in such disputes. The authors analyse the peculiarities of Internet infringements and the locus delicti connecting factor in the case law of the CJEU in this area. The Court has adopted the criterion of ‘centre of interests’ as the major connecting factor to establish international jurisdiction. The authors criticize this approach and argue that it has led to a structural misunderstanding of the infringement of personality rights. Finally, the authors propose a new rule on jurisdiction in cases concerning violation of personality rights, which should be established in the Brussels I bis Regulation to ensure legal certainty and proper international dispute settlement.
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Authors and Affiliations

Marek Świerczyński
1
ORCID: ORCID
Remigijus Jokubauskas
2
ORCID: ORCID

  1. Professor, Cardinal Stefan Wyszyński University (Warsaw)
  2. Associate Professor, Mykolas Romeris University (Vilnius)
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Abstract

This article proposes that the current Vietnamese conflict of law rules for tort actions, which presently use the place of damages rule to determine the applicable law (meaning applying the law of the jurisdiction where the damage occurred), should be supplemented with additional conflicts of law rules in order to address the problems presented by specific tort actions such as environmental pollution, product liability, intellectual property rights, and violations of competition rules. It is proposed that for these specific torts, the place of damages rule needs to be either replaced by other connecting factors, such as the place of acting or the rule of closest connection, or it has to be made more concrete. In other types of torts, the rule has to be rebuttable by the foreseeability defense or has to give way to a ubiquity rule granting the plaintiff the choice between the laws of the place of damage and the laws of the place of acting.
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Authors and Affiliations

Luong Duc Doan
1
ORCID: ORCID
Trinh Thi Hong Nguyen
2
ORCID: ORCID

  1. Associate Professor of Law, School of Law, Hue University (Vietnam)
  2. PhD, lecturer, School of Law, Hue University (Vietnam)

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