3. Impact of national regulation on cross-border services Julia Hörnle 3.1 JURISDICTION This section will look at the basic rules under International Law, which allow states to assert jurisdiction and how they apply to cross-border online gambling. The question this chapter addresses is essentially which state is to regulate gambling and how. 3.1.1 Public–Private Distinction First of all, a distinction must be made between public and private law. Most national laws related to gambling will be criminal laws, prohibiting certain conduct and rendering such conduct a criminal offence (such as offering gambling facilities, offering gambling facilities without the appropriate licence or advertising gambling not licensed within the jurisdiction) or administrative laws dealing with licence conditions. Such laws are clearly public laws. However, other laws regulating online gambling (such as a tort prohibiting unfair competition) can be classified as private law. In some cases this classification may be controversial.1 As far as the law governing private relationships (contract and tort) is concerned, states have developed conflict rules (Private International Law), which allow national courts to assert jurisdiction and to apply national or foreign law. In many instances, depending on the enforcing state’s public policy, such a judgment will then be recognized and enforced by the foreign country where the defendant or his assets are located. Private International Law will be discussed in detail in Chapters 5 to 7. This chapter is focusing on public law and regulatory and criminal jurisdiction. Jurisdiction in public law matters involving criminal or administrative...
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