DO THE PROVISIONS REGULATING THE TERMS OF EMPLOYMENT OF POSTED WORKERS, AS MANDATORY PROVISIONS, ENSURE THE PROTECTION OF THE EMPLOYEE?

All employment relationships, including strictly employment relationships, may be related to the legal areas of two or more countries, which raises the question of the law applicable to a specific legal relationship. The Rome I Regulation has a key importance in determining the applicable law to which the employment relationship is to be subjected. In this respect, the decree of Art. 8 of the Regulation has a fundamental importance, which was analyzed in the first part of this publication. However, the mechanism according to which the lex labori will be corrected by the provisions forcing their application, the issues of which are presented later in the publication, should be distinguished from the scheme presented in the above-mentioned regulation. According to the EU legislator, one of the matters of employment relationships regulated by such provisions is the standardization of the terms and conditions of employment of employees posted to perform work in the territory of a European Union Member State. Answers to the question whether it is appropriate to assign a nature of the rules enforcing its application provisions to this regulation (concerning the terms and conditions of employment of posted workers) has been made at the end of this publication.

Wybór prawa dla umowy o pracę. Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 15 lipca 2021 r. w sprawach połączonych DG, EH c/a SC Gruber Logistics SRL (C-152/20) oraz Sindicatul Lucrătorilor din Transporturi, TD c/a SC Samidani Trans

This paper comments on a recent ruling concerning the choice of law to the individual employment contract according to the Rome I Regulation. In the judgement in the joined cases C–152/20 and C–218/20 (DG, EH v. SC Gruber Logistics SRL and Sindicatul Lucrătorilor din Transporturi, TD v. SC Samidani Trans SRL), the Court of Justice of the European Union (CJEU) provided the interpretation of Article 8 of the Rome I Regulation on two issues. At first, the EU Court was asked about the freedom of choice of law applicable to the individual employment contract if (a) national law required the inclusion of a clause into that contract under which the contractual provisions are supplemented by national law and (b) the contractual clause concerning that choice was drafted by the employer. The second issue was connected with the concept of the employee’s protection, under which the choice of law may not have the result of depriving the employee of the protection afforded to him (her) by provisions that cannot be derogated from by agreement, under the law that would have been applicable to the contract in the absence of choice. Regarding the first question, the CJEU admitted that the parties to an individual employment contract dispose of freedom to choose the law applicable to that contract, even if the contractual provisions are supplemented by national labour law under a (relevant) national provision, if “the national provision in question does not require the parties to choose national law as the law applicable to that contract”. Secondly, the Court found that the parties to an individual employment contract were “to be regarded as being, in principle, free to choose the law applicable to that contract, even if the contractual clause concerning that choice is drafted by the employer”. Therefore, the CJEU confirmed the application of the rules concerning the choice of law resulting from Article 3 of the Rome I Regulation to the individual employment contracts. Referring to the second issue of the commented ruling, the CJEU confirmed that Article 8 (1) of the Rome I Regulation must be interpreted as meaning that, where the parties have chosen the law governing the individual employment contract, the application of the law that would apply to the contract in the absence of choice must be excluded, with the exception of “provisions that cannot be derogated from by agreement”, if those provisions offer the employee concerned greater protection than those of the law chosen by the parties. The EU Court underlined that rules on the minimum wage could be treated as “provisions that cannot be derogated from by agreement” and the law that, in the absence of choice, would be applicable should decide about it. Unfortunately, it is necessary to follow the commented judgment’s justification to correctly understand the concept of an employee’s protection applied in Article 8 (1) of the Rome I Regulation. The thesis of the ruling in this regard seems to be too laconic, and it can be misinterpreted.

The Tango Between Art.17(3) Brussels Ibis and Art.6(4)(b) Rome I under the Beat of Package Travel Directive

Package travel tourists are explicitly protected as consumers under Article 6(4)(b) Rome I, but not under Article 17(3) Brussels Ibis since it does not even mention the term ‘package travel’. Such discrepancy is widened with the replacement of Directive 90/314 by Directive 2015/2302 with enlarged notion of package travel. As regards protecting package travel tourists as consumers with favorable jurisdiction and applicable law rules, this article argues that Article 17(3) Brussels Ibis is two steps behind Article 6(4)(b) Rome I. In order to close the gap, a uniform concept of package travel should be given. To this end, it is suggested that Article 17(3) Brussels Ibis should adopt the notion of package travel employed in Article 6(4)(b) Rome I. Despite this, these two provisions only cover packages containing transport, as an exception of transport contracts. Packages not including transport do not fall under the exception of transport contracts. Since all package travel contracts should be protected as consumer contracts, regardless of containing transport or not, it is more logical to delete the exception of transport contracts and create a separate provision to protect package travel contracts as consumer contracts.

OVERRIDING MANDATORY PROVISIONS IN CROATIAN PRIVATE INTERNATIONAL LAW

Overriding mandatory provisions are mandatory provisions that are applicable in situations with an international element. The author analyses overriding mandatory norms in the European private international law and in the Croatian national private international law. The definition of such norms provided in the 2017 Croatian Private International Law Act is almost a verbatim copy of the definition provided in the Rome I Regulation on the law applicable to contractual obligations. The 1982 Croatian Private International Law Act did not provide for a definition of overriding mandatory norms but it was uniformly accepted in the scholarly interpretations that those types of mandatory norms were accepted by the Croatian private international law system. Moreover, the 1982 PIL Act included a substantive family law provision, which was, in essence, an overriding mandatory provision. However, Croatian courts and practitioners have been reluctant to refer explicitly to an applied norm as an overriding mandatory one. The reasons behind that might be that that the courts were better acquainted with the public policy exception, since public policy was explicitly mentioned in the 1982 PIL Act, as well as in some other legal acts. In addition, the legislator does not explicitly note that a provision is an overriding mandatory one in the provision itself, which leads to the outcome that the courts and other practitioners are burdened with a complex task of interpretation of a provision they think might be an overriding mandatory one. The author aims at providing guidelines to facilitate that task.

Part I Legal and Practical Challenges to Traditional Trade Finance, 7 Letters of Credit and Stop Payment Orders Made in the Issuer’s Country

This chapter offers a critical examination of the significant, but largely unexplored, question whether, and to what extent, a foreign order restraining the issuing bank from making payment under a letter of credit can afford the issuing bank a good defence to a claim in a court outside that bank’s home jurisdiction. At common law, in England as well as in other jurisdictions, such as Hong Kong, Singapore and the US, such orders have only limited effect in the forum. This chapter argues that the approach of the English courts to article 4 of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations meant that such orders could defeat a claim against the issuing bank in England only in very narrow circumstances. It goes on to examine the extent to which the changes introduced in article 4 of the Rome I Regulation of 17 June 2008 on the law applicable to contractual obligations have altered the position under English law, so that stop payment orders made in the issuer’s home jurisdiction may now have a much wider reach in England. The chapter contends that notwithstanding the amendments to article 4, in the specific context of letters of credit, the approach of the English courts under the Rome I Regulation is likely to be broadly similar to that under the Rome Convention. The Rome I Regulation has not (even unintentionally) opened the door to stop payment orders made in the issuer’s home jurisdiction.

Comparación entre los criterios diagnósticos del síndrome de intestino irritable en una población latinoamericana. Estudio descriptivo de un hospital de atención terciaria

Background and aims. The appropriate diagnosis of irritable bowel syndrome is critical due to its association with impaired quality of life and high health care costs. We aim to explore the proportion of subjects with irritable bowel syndrome by the Rome IV criteria at a tertiary care hospital and compare them with previous diagnostic criteria. Material and methods. We conducted a cross-sectional descriptive study in a tertiary care hospital located in Buenos Aires. There were included to the consecutive adult patients who consulted for abdominal disorders and in whom an organic pathology had been excluded. Subjects completed a gastrointestinal symptom questionnaire and the proportion of patients with IBS, according to Roma IV criteria, was compare with the proportion of those who met the previous criteria (Manning, Rome I, II and III). Results. Of 178 patients included, 58% met the diagnosis criteria for IBS using the Rome IV criteria. Of these, 98% were also Rome III positive, 76.7% IBS Rome II positive, 93% IBS Rome I positive and 99% IBS Manning positive. The agreement was very good with Rome III (kappa = 0.87), good with Rome I (kappa = 0.76) and good, but lower with Rome II (kappa = 0.73) and Manning (kappa = 0.66). Conclusions. Good diagnostic agreement was established between Rome IV and the previous IBS criteria, except with Rome II and Manning, which were lower.

Remedies and the Conflict of Laws

This essay seeks to outline the theoretical basis underpinning the approach to remedies in the conflict of laws in light of the application of the rules contained within the Rome I and Rome II Regulations. It examines issues that have arisen in practice, in particular in cases before the courts of England and Wales, including with respect to matters of evidence, damages and interest, interim remedies and declaratory relief.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 46 Norway: Norwegian Perspectives on the Hague Principles

This chapter assesses Norwegian perspectives on the Hague Principles. To understand the significance in Norway of the Hague Principles, it is necessary to explain the Norwegian system of private international law and its sources. Historically, conflict rules in Norway were not codified. Nowadays, private international law, at least as far as civil obligations are concerned, is undergoing a process of codification. A proposal for a statute on the law applicable to obligations has been released for public consultation, which has been concluded, and the Ministry is expected to draft a Proposition on that basis. The proposal is largely based on the EU regulations Rome I and Rome II. The Norwegian system of private international law may therefore be said to have turned into a system that is de facto parallel to EU Private International Law. Should the proposed statute be enacted, the system will also formally, albeit unilaterally, be parallel to Rome I and Rome II. Generally, therefore, it can be assumed that conflict rules will coincide with the rules contained in Rome I. In such a picture, the role that the Hague Principles may play for the Norwegian regime of party autonomy is quite restricted, as Norwegian courts generally use sources of soft law as a corroboration of Norwegian law, but not as a correction.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 43 European Union: European Union Perspectives on the Hague Principles

This chapter evaluates European Union perspectives on the Hague Principles. The Rome I Regulation on the law applicable to contractual obligations is the most important instrument for determining the law governing international commercial contracts in the EU. It is a legislative act of the European Union and directly applies in all Member States of the European Union except for Denmark. For many issues, the Rome I Regulation is in conformity with the Hague Principles. Where the Hague Principles cover issues that have not yet been explicitly addressed by the Rome I Regulation, such as choice of law clauses in standard forms in Article 6(1)(b) of the Hague Principles, the European legislator may very well take the Hague Principles into consideration when amending the Regulation. In fact, the European legislator regularly takes inspiration from international and foreign law when legislating, amending the law, or covering new issues. In academic commentary, it has been suggested that the next revision of the Rome I Regulation shall, for certain issues, indeed take inspiration from the Hague Principles.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 51 United Kingdom: United Kingdom Perspectives on the Hague Principles: Beyond the European Union

This chapter highlights United Kingdom perspectives on the Hague Principles. On 31 January 2020, the UK ceased to be a member of the EU. Under the terms of the Withdrawal Agreement concluded between the UK and the EU, the UK will apply the Rome I Regulation to contracts concluded before the end of the transition period. The UK has taken a policy decision to continue to apply the Rome I Regulation to determine the law applicable to contractual obligations with respect to contracts concluded after the end of the transition period, and has adopted legislation to achieve that end. Following the ‘IP completion day’, UK courts will have no power to refer questions of law to the EU’s Court of Justice (CJEU) and will not be bound by decisions of the CJEU made after that date, although they ‘may have regard to’ such decisions. In the absence of a significant existing body of CJEU case law concerning the Rome I Regulation and its predecessor, the 1980 Rome Convention on the law applicable to contractual obligations, UK courts will seek guidance from the existing body of local case law, which will continue to bind them in accordance with common law rules of precedent. In this enterprise, the Hague Principles, as an instrument adopted by the members of a well-respected international legal organization of which the UK is a long-standing member, may prove to be an influential tool, especially when addressing novel questions.