Cross-Border Employment Contracts, Choice of Law, Choice of Forum, and the Enforcement of Cross-Border Judgments in the European Union
Global Labor and Employment Law for the Practicing Lawyer, Forthcoming
27 Pages Posted: 7 Jul 2010 Last revised: 23 Jul 2010
Date Written: July 7, 2010
The global labor markets require workable and predictable law, forums, and recognition of judgments for the enforcement of cross-border employment contracts. Global labor markets make traditional approaches outdated. Yet regulations in the EU now answer these questions for European postings, and provide a framework for building a predictable system generally in the emerging world-wide markets for labor. Party autonomy often controls, but yields to protective rules requiring application of the law of the place of labor regarding non-waiveable employment rights.
Traditionally, private international law affecting these questions found expression at the national or sub-national level. Choice of law rules in the UK might vary with those in Italy, and within the U.S., California and New York applied their own choice of law and choice of forum rules, albeit guided by the Restatements. The result has been a chaotic and unpredictable doctrinal framework variously described as “incomprehensible jargon” (William Prosser) and “gibberish” (Friedrick Juenger).
In Europe, building on an earlier Convention, the Rome I regulation (effective in 2009 and binding within the EU) generally adopts lex laborium for employment contracts, but allows party autonomy subject to non-waiveable employment rights in the place of work (“overriding mandatory provisions”). The Brussels I regulation (effective in 2002) sets forth rules for jurisdiction in EU cross-border disputes; an employer may be sued in the nation of the habitual place of work, in the EU nation in which it has a “branch, agency, or establishment,” or in which the employee is domiciled. The parties to an employment contract can chose a jurisdiction only after a dispute has arisen. Finally, under Brussels I, a judgment in any EU country “shall be recognized” in other EU nations without review of substance or jurisdiction.
In applying private international law to international labor markets the EU leads the way.
Keywords: Choice of law, Choice of Forum, Enforcement of cross-border judgments in the European Union, Rome I, Brussels I
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