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6 Choice of Law

From: Employment Contracts and Private International Law (2nd Edition)

Louise Merrett

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 16 April 2024

Choice of law clauses — Jurisdictional agreements and the common law — Express choice — Implied choice — Contractual obligations — Employment contracts — Jurisdiction over contracts of employment — Applicable law to non-contractual obligations

This chapter assesses the choice of law rules which apply to employment contracts. At common law, if the parties had not themselves chosen a law, the applicable law was that of the country with the closest and most real connection to the contract of employment. The common law rules were replaced, first, by the Rome Convention, which itself was replaced by the Rome I Regulation and which in turn has now become part of retained EU law following the UK's exit from the EU. The choice of law rules applicable to employment contracts are now contained in specific provisions of the Rome I Regulation. Absent an express or implied choice of law, employment contracts will usually be governed by the law of the place where the employee habitually works. However, that law can be displaced if the contract is more closely connected with another jurisdiction. The question of what weight should be given to the presumption, and the proper approach to be taken to displacing it, raises difficult and fundamental issues. In particular, it raises the question of whether the underlying purpose behind the employment rules can and should be reflected in the balancing exercise. The chapter then looks at choice of law in non-contractual claims.

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