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On Private International Law Regulation of Cross-Border Peripatetic Employment
Authors: Maria V. Kaurakova
Number of views: 308
The right to employment commonly considered as a privilege exclusive to individuals to dispose their capacity for work in the form they wish is the essential or fundamental unalienable individual right. In this quality this right is kept in all supreme laws of advanced states starting from the second half of the twentieth century making clear to all that the wage-earning labour is one of the most important phenomena produced by a social life to tie up members of different social groups. Thus it is enshrined in relevant legal forms (laws, codes, regulations etc.).
Being a product of legislation and forming logically complete bodies of rules to deal with labour as a particular social phenomenon, these forms evidence of a separate field of law (labour law) in national systems of law. With respect to this it can hardly be necessary to state that in line with other fields of law underlying modern systems of law much has been changed in labour law since the time when this right of employment was first introduced into national law forms in the nineteenth century as a fundamental individual right of those closely connected with a territory of a corresponding community. Now we may say that there is little or sometimes even no connection between domicile and place of employment, when individuals change locations for a better life by crossing borders of different sovereign states. This accordingly affects concepts underlying labour law in national systems of law with a corresponding effect to labour environment.
But what remains unchangeable is fundamental principles and rights at work to take appropriate measures in dealing with labour (nature, character and effect of this particular social phenomenon). These are universally accepted material law principles guiding and encouraging employees, employers and sovereign states around this increasingly interconnected world in accordance with a particular pattern. That is the balance of interests of capital and labour. The main idea is to prevent burdensome forms of work organisation in accordance with a general principle of our time advanced in most jurisdictions that the work should be adapted to the worker.
For this very reason, in this short article we would like to take an opportunity to address the issue as to whether in the age of sanctity of property and labour, nature and character of employment exert substantial influence on private international law regulation, on devices used by legislators in this particular sphere of regulation. These are directly applicable rules, conflict of law rules, uniform material law rules and international jurisdiction rules, which make up a separate field of law in national systems of law to deal with legal and jurisdictional conflicts of the time and place arising in a private law sphere. Here we would also like to uncover the employment status of an individual in private international law paying particular attention to expression, recognition and protection of labour rights exercised on a cross-border basis and make practicable proposals. This all in order to try to think of tomorrow as well as of today private international law and treat accordingly particular legal issues coming before it.
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