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  Conflict of Laws
Baldwin, Jeffrey E., "International Human Rights Plaintiffs and the Doctrine of Forum non Conveniens", Cornell International Law Journal v. 40 (2007) p. 749-791

This article argues for a limited application of the traditional doctrine of forum non conveniens in cases involving the Alien Tort Claims Act (ACTA), a law dating from 1789 that grants U.S. federal courts subject matter jurisdiction over certain civil actions filed by aliens against U.S. or foreign defendants. The doctrine of forum non conveniens permits federal courts to dismiss a case that otherwise satisfies jurisdiction and venue requirements if an adequate alternative forum exists and the balance of private and public interest factors tilts strongly toward adjudication in an alternative forum. In ATCA claims, the private and public interest factors often weigh against U.S. federal courts retaining jurisdiction due to the significant foreign element inherently present in such cases. Thus, while ACTA was intended to open U.S. courts to suits by alien plaintiffs who have suffered human rights or labor rights violations abroad, forum non conveniens doctrine typically operates to bar access to U.S. courts precisely because the plaintiffs are aliens and the alleged human rights violations have occurred overseas. The article generally endorses the approach adopted by the Second Circuit in Wiwa v. Royal Dutch Petroleum, in which the plaintiffs alleged that the Nigerian government had imprisoned, tortured and killed their family members at the instigation of the defendant oil company and its subsidiary. In reversing the district court’s dismissal of the case, the Appeals Court urged federal courts to give significant weight to the United States' strong public interest in adjudicating international human rights violations. Citing language from the Wiwa decision, the article argues that if federal courts fail to adopt this approach, they run the risk of "facilely dismissing" international human rights claims on the mistaken "assumption that the ostensibly foreign controversy is not our business."

Subjects: Alien Torts Claims Act, Case Studies: Company-Specific, Conflict of Laws, Corporate Accountability, Labor Rights as Human Rights
Newsletter: Vol 7, Issue 1
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Benvenisti, Eyal & Downs, George W., "The Empire's New Clothes: Political Economy and the Fragmentation of International Law", Stanford Law Review v. 60 (2007) p. 595-624

In this article, the authors argue that “fragmentation” in international law, which they define as the increased proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries, is a more serious problem than is commonly accepted among scholars of international relations. Specifically, the authors criticize the tendency to view the growth of competing international legal institutions as an almost natural or haphazard phenomenon, when, in their view, powerful states actively promote fragmentation because it enables them to preserve their dominance. In this view, fragmentation allows more powerful states to exploit the diversity of interests among weaker states by channeling reform efforts into a plethora of atomized institutions, by increasing the transaction costs for less powerful states to pursue claims in international tribunals, and by resisting the emergence of broad, multi-issue fora in which less powerful states might coalesce around a variety of issues, including environmental regulation, protection of domestic markets, and improved labor standards. They note, for example, that when the United States encountered increasing demands for reform within the General Agreement on Trade and Tarriffs (GATT), it withdrew and, along with the European Union, formed the alternative World Trade Organization (WTO), whose treaties were not burdened with matters seen as “unrelated” to trade, such as human rights, labor standards, or environmental protection. Ironically, they note that the very process of delegitimizing international law that results from fragmentation furthers the imbalance of power among states.

Subjects: Conflict of Laws, International Monetary Fund, NAFTA/GATT, Trade Conditionality, World Bank, World Trade Organization (WTO)
Newsletter: Vol 7, Issue 3
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Bisom-Rapp, Susan, "Exceeding Our Boundaries: Transnational Employment Law Practice and the Export of American Lawyering Styles to the Global Worksite", Comparative Labor Law & Policy Journal no25 (Winter 2004) p. 257-356

In this article, Susan Bisom-Rapp explores the growth of international labor and employment law as a distinctive field of legal practice. Specifically, the author argues that the traditional understanding of labor and employment law as quintessentially local is changing as practitioners deal more with transnational clients. Bisom-Rapp provides a case study of the firm Littler Mendelson, a leading United States labor and employment firm, that has developed an International Practice Group to increase global client and practitioner contacts. The author conducted e-mail interviews with twenty-one lawyers in thirteen countries who are affiliated with Littler's International Practice Group. She reports that the practitioners are deeply engaged in transnational legal strategies and are enthusiastic about and implementing some of the tactics of American-style employment practice. Bison-Rapp also predicts that some aspects of American employment law are not likely to globalize, such as the concept of at-will employment. The author concludes that commonalities in lawyering styles and some substantive employment law issues are emerging across national jurisdictions, indicating that the field may be less localized than traditionally thought.

Subjects: Case Studies: Company-Specific, Case Studies: Industry-Specific, Conflict of Laws
Newsletter: Vol 5, Issue 3
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Freedland, Mark , "Developing the European Comparative Law of Personal Work Contracts", Comparative Labor Law & Policy Journal v. 28 (2007) p. 487-497

This article summarizes ongoing research into the comparative law of employment contracts in North America, Great Britain and continental Europe. The author argues that the continental European labor law is generally less inclined than its English counterpart to make categorical exclusions of temporary and contingent workers from "employee" status based on assumptions about long-term labor contracts as a societal norm. He also argues that continental European legal systems have generally had a more flexible notion of "employer," which, in turn, may be more useful for recognizing a continuous employment contract between a worker and successive proprietors or in situations involving employment contracts with joint or multiple employers. Further, the author argues that because different countries have different doctrines regarding the ability of individual employees to contract out of statutory labor standards, the resulting divergence of regulations has made it increasingly important for labor law scholars to examine labor law in a comparative perspective.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Conflict of Laws, Contingent Work, Employment Law, European Union, Flexibilization, Working Hours
Newsletter: Vol 6, Issue 12
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Linden, Thomas, "Employment Protection for Employees Working Abroad", Industrial Law Journal v. 35 no186 (June 2006) p. 186-195

This article discusses legislative and judicial attempts to clarify the rights of British employees who work outside the territorial boundaries of Great Britain. The author focuses primarily on the development of Britain's "unjust dismissal" law and considers whether an employees who is recruited in Great Britain for an overseas job is employed "in Great Britain" for the purposes of protection against unjust dismissal under Britain's 1996 Employment Rights Act. The author discusses a Court of Appeals case in which the Court articulated a threefold categorization for labor rights for overseas workers. First, there are what the court called "standard case" employees, who should be protected by the Act based on the fact of their employment was within Great Britain at the time of their dismissal without regard to previous employment overseas. Next, there are "peripatetic" employees, such as airline pilots, who, while working primarily abroad, do so for an employer who is "based in" Great Britain. Finally, there are "expatriate" employees, such as an employee who is recruited in Great Britain for work abroad. The Court suggested that the first two categories of employees were protected, but that the expatriate employees would generally not be protected against unjust dismissal. The article also considered whether the application of Britain's workplace anti-discrimination protections similarly applied to employees working abroad. Because of recent amendments to the anti-discrimination legislation, the author suggests that the same categorization may not be controlling. The article concludes with brief notes on the limits on the jurisdiction of British tribunals to enforce employment law rights and the implications of the doctrine of forum non conveniens for enforcement of British employment law rights for workers outside the UK.

Subjects: Conflict of Laws, Employment Law, Extraterritorial Application of Law
Newsletter: Vol 5, Issue 9
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McCallum, Ron, "Conflicts of Laws and Labour Law in the New Economy", Australian Journal of Labour Law v. 16 no1 (May 2003) p. 50-68

This article contends that Australia has become integrated into the new economy; that is, a global economy marked by a growth in the number of corporations doing business and employing workers across State and national borders and by an increase in the geographic mobility of workers. Part II argues that the integration of Australia into the global economy makes it imperative for labor law academics and practitioners to familiarize themselves with the Australian conflicts of laws rules because they have an impact upon the labor law obligations of transnational enterprises. Part III explains how the pertinent conflicts rules interact with other statutory and judge-made laws, both within Australia and beyond. Part IV explores the manner in which the most important of the conflicts rules operate when acts or transactions concerning employment matters bring into play the laws of two or more nations. Throughout the article, the author examines the operation of Australian conflicts of laws rules in employment situations through a survey of recent case law.

Subjects: Australia, Case Studies: Country-Specific, Conflict of Laws
Newsletter: Vol 3, Issue 3
Mundlak, Guy, "De-Territorializing Labor Law", Law & Ethics of Human Rights v. 3 (2009) p. 188-222

The author argues that labor laws heretofore territorial solutionsť are inadequate for toda's globalized world, where both capital and labor are increasingly mobile. He contends that labor law must b de-territorializeť in order to better countcapi's forum shoppiť through the unilateral choice of territory and in order to more capably address territorial disparities in pay and working conditions that result from artificial, political borders. Mundlak suggests labor law should take a cue from other fields such as environmental law, where extra-territoriality is more common. Moreover, he suggests that labor rights be more thoroughly integrated into the already de-territorialized regimes of corporate or trade law. Although he acknowledges that the de-territorialization process may upset traditional nationally-focused union and worker advocacy practices, he claims that de-territorialization can create new possibilities for advancing workers' rights through cross-national legislation, cross-border litigation,ť and codes of conduct.

Subjects: Conflict of Laws, Corporate Accountability, Extraterritorial Application of Law, Labor Rights in General (Misc.)
Newsletter: Vol 8, Issue 10
Nickson, Matthew, "Closing U.S. Courts to Foreign Seamen: The Judicial Exclusion of the FAA Seamen's Arbitration Exemption from the New York Convention Act", Texas International Law Journal v. 41 (2006) p. 103-172

This article criticizes Francisco and Bautista, two recent decisions by federal appeals courts in which foreign seaman bringing tort claims against their employers for workplace injuries were forced to have their cases heard before an arbitrator, pursuant to mandatory arbitration clauses included in their employment contracts and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The author argues that these decisions run counter to what had previously been well-settled law, including an express provision in the Federal Arbitration Act (FAA) making non-waivable the right of seamen to sue in the forum of their choice for employment contracts. The author notes that, since 1790, U.S. Admiralty law has recognized that seamen are deserving of greater judicial solicitude because of their special vulnerability as workers . The author contends that these decisions will negatively impact mostly low-wage foreign seamen from countries such as the Philippines, where all maritime employment contracts are required to include arbitration clauses. The author raises the concern that these decisions will pave the way for excluding the claims of other workers from U.S. courts, since the language of the FAA's exemption, which was severely limited by these decisions, applies to "seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."

Subjects: Case Studies: Industry-Specific, Conflict of Laws, Extraterritorial Application of Law
Newsletter: Vol 7, Issue 8
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Weiss, Manfred, "Convergence and/or Divergence In Labor Law Systems?: A European Perspective", Comparative Labor Law & Policy Journal v. 28 (2007) p. 469-486

This article engages an ongoing debate among labor law scholars over whether the spread of globalization and neo-liberal ideology necessarily lead to a "convergence" or homogenization of labor standards whether that convergence is accomplished by a "race to the bottom," i.e., a general decrease in workers' rights. The author argues that European Community labor legislation has in fact contributed to a "convergence" among member States, but that it has often done so by setting minimum standards whose overall effect is to increase workers' rights with respect to workplace discrimination, health and safety standards, wage and hour laws and alternative forms of employment. The article also points out how EC legislation has promoted worker "voice" by requiring employers to provide information and consult with designated workers' representatives. On balance, the author sees these developments as contributing at least as much to the creation and expansion of workers' rights as to a downward spiraling "convergence" of labor standards.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Conflict of Laws, European Union
Newsletter: Vol 6, Issue 12
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Zumbansen, Peter, "The Parallel Worlds of Corporate Governance and Labor Law", Indiana Journal of Global Legal Studies v. 13 (Winter 2006) p. 261-301

The author applies the lens of transnational law (TL)-a body of norms and a methodological approach to the study of legal regulatory systems throughout the world-to the area of corporate governance. Zumbansen argues that TL captures the "hybridized" mix of "hard" and "soft" regulations that characterizes corporate governance rule-making in the area of labor regulation in the twenty-first century global economy. Part I argues that the separate worlds of corporate and labor law are in fact parallel, in that both are affected by the same "denationalization of societal activity" that has led to a decline in state-based law and a rise in the number of foreign and transnational "norms-producers," both public and private. Zumbansen criticizes self-regulation mechanisms, such as codes of conduct, through the TL rubric, finding them lacking accountability. Part II describes the emergence of TL and discusses whether constitutionalizing TL can afford greater protection for core labor standards. The author claims that TL is positioned to address the magnitude of regulatory challenges inherent in a globalized labor market. He also contends that moving the analysis beyond the realm of the nation-state can help scholars assess the layers of regulations that govern both "regulated and self-regulating" firms.

Subjects: Conflict of Laws, Corporate Accountability, Corporate Codes of Conduct, Labor Rights in General (Misc.)
Newsletter: Vol 8, Issue 4
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