Conflict of Private International Law - Essay Example

Conflict of laws Case Study I – Jones v. Les Sports En Ligne SA (LSEL) Conflict of laws or in other words, private international laws, refers to that part of international laws that deal with the jurisdiction of international cases, or international cases, where the influence, or involvement, of more than one country is envisaged. The term conflict of law seems to be a misnomer, since what is being done is the resolution of conflict rather than provocation of the same. Conflict of laws, or private international laws, seek to pin the jurisdiction of determining judicial action, or in other words, the courts of which country could possibly go ahead on deciding the case. Les Sports En Ligne SA (LSEL : It is apparent that in the event the employer is based in Paris, France, and the business conducted from France, the French courts have jurisdiction in this case. Thus it would not be possible to suggest English courts in this case, and this has to be settled, either with French, or EU laws. (Etgen Reitz 2006, p.90). This case study could be divided into two parts: 1. The part that deals with the claim of Jones, the ex- marketing employee of LSEL in UK who is seeking commission and compensation in lieu of notice of termination of his services. The main aspect is whether English or EU laws could be applied in this case. 2. The second part would deal with whether Reilly could have a substantive claim for alleged defective computer console which the company is not willing to settle, claiming that the fault lay with the installer and not the product. Whether English law would be able to be used in this case. Commission and compensation claims of Jones: Under French employment laws, it is imperative that most employment contracts need to be in writing and duly conveyed to the respective employees. This is more so in the following cases: Contract with a limited duration (“Contrat à durée déterminée”), Contract for a part-time work (“Contrat de  travail à temps partiel”), Contract for a temporary work (“Contrat de travail temporaire”), Contract with apprenticeship (“Contrat d’apprentissage”), Contract with a foreign employee, etc... (French employment law 2007). It is seen that the concept of “employment at will” is non-existent in France. Dismissals from work, even in the private sector are subject to controls and susceptible to procedural constraints. It is indeed to the benefit of employers that French state agencies have the powers to intercede in, and even authorize dismissals should it so warrant. However, it is also seen that it is not difficult for any employee to initiate a lawsuit against his ex employers under labour courts. Labour Relations Courts (Conseils de Prudhommes) are generally made up of lay judges who are elected from the ranks of employer/employee organisations. It is rare that the plaintiff be other than an employee and just as rare that claims be dismissed with no award whatsoever being made against the employer.” (Employment law: French employment law). Thus, it is seen that although Jones is a foreign employee, his employment terms are in congruence with French laws and such laws prevail. In this case, English laws may not apply, since his employment is held by French Company registered and controlled in France. However, it may be necessary to consider the European Laws on employment which could possibly impinge upon this contract. Termination of Jones’s services by former employers, Les Sports En Ligne SA (LSEL). Notice period: By far, the most important aspect of any existing employment is that of either the employer or the employee serving notice before leaving the employment. Under French law, it is one month’s notice for ordinary employees and three months’ for executive personnel. In written employment covenants, the terms of appointment and termination are well documented. However, it is when written contracts are not available that the risk of litigation is possible. In the case of Adams v.GKN Sankey Ltd. (1990) IRLR 416, it was held that when the discharged employer is paid for notice period, his services cannot be said to be over, until the expiry of said notice period. (Byrne 2006, p.39). With regard to the discretion on the part of the employer to terminate employees it would well be impossible for any employment contract to negate, or limit its scope. Thus, except for time schedule work, or project works, which entail time and mission completion, nearly all employment, is subject to termination from either end, keeping the legal aspects in mind. In case there is a notice period to be fulfilled, it could be with regard to notice or pay in lieu thereof. Under common law, the employer has the discretion to dismiss the services of employee for any reason as long as notice period clause is served. This has been reinforced in the case of Sheehy v. Ryan and Moriarity (2004) ELR 87 and again in the case of Carey v. Independent Newspapers (Ireland) Ltd (2004) ELR 45. (Byrne 2006, p.39). In the event, the employee felt that the unlawful termination was prejudicial to his interests, either with, or without notice period or pay in lieu thereof, he is under liberty to seek appeal from labour Court to set right his claims. In the case of Marshall (Cambridge) Ltd. V. Hamblin (1994) IRLR 260, it was held that if the employee serves resignation along with notice period, and if, during this notice period, his services are terminated by his employer, it would be deemed to be termination or dismissal. However, if the employer waives the option of notice and pays cash in lieu thereof, it is deemed that the employee has resigned. (Byrne 2006, p.39). Applying the above laws in this case study, it could be said that in order for Jones to bring about a suit for recovery of compensation and commission due, he would need to prove that his dismissal was unlawful. The Courts would need to take into account whether his employers LSEL had acted according to the terms of appointment, oral or written. In case, the written service contracts has been enforced, whether his dismissal was in congruence with his terms of appointment, including the clause relating to notice period. It is also necessary that, in case there is no service agreement between LSEL and Jones, it is necessary that reasonable notice has been maintained, including the job functioning, length of service, age, experience and competency level of the employee. In the event notice period has not been given, in most cases, unless there are aspects to the contrary, salary in lieu of notice period id paid to the discharged employee. The English Courts may not have jurisdiction in this case; it could either be French laws since LSEL is a French company, or European Union (EU) laws, as applicable. The aspect of EU laws assumes importance since both France and UK are signatories to the EU Convention. Thus it is possible to invoke EU laws since the legal implications of this case is a termination of employment of a UK Citizen, employed by a French Firm, but having his place of business in the United Kingdom. Case Study II – Reilly v. Les Sports En Ligne SA (LSEL) : At the very outset, the aspect of jurisdiction in this case has been clarified, in that there is no jurisdiction clause limiting the legal validity of this sale transaction to French jurisdiction. For instance the sale contract for the goods sold by LSEL to Reilly does not specify that the parties irrevocably submit to the exclusive jurisdiction of French Courts for the determination of any disputes that may, or is likely to arise under this contract. A jurisdiction clause is a provision in a contract that refers disputes arising under the contract to a country, territory or place for hearing and determination. "The parties irrevocably submit to the exclusive jurisdiction of English Courts for the determination of disputes arising under this contract." (Term: Jurisdiction clause 2008). Since there is no exclusive jurisdiction clause stating that the disputes shall be settled by French courts, it could be argued that disputes could also be settled by Courts outside France, viz. English Courts. The main issue in this case is that goods sold by LSEL are defective and could not serve the purpose for which it had been purchased by the buyer, Reilly. The sellers, LSEL maintain that defects occurred due to bad handling on part of buyers. Under Section 13 of the Sale of Goods Act, sale of goods by description, it is incumbent on the part of the seller to ensure that the goods match the description; otherwise the buyer is at liberty to repudiate the treaty, and /or claim damages for compensatory damages. (Sale of Goods Act 1979: (Sale of goods act 1979). Again, considering Section 14 (2)(a) of Sale of Goods Act, it is seen that where a seller sells goods during business, there is an imperceptible term that the goods supplied under the contract are of satisfactory quality. What constitutes satisfactory quality is that they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price, if material and other and the other appropriate situation. Further, applying English law, it could be said that, applying Section 15, Sub section 1, of the UK Sale of Goods Act 1979 “Where in a contract of sale the seller is in breach of any term of the contract (express or implied), the buyer shall be entitled—(a) to claim damages, and (b) if the breach is material, to reject any goods delivered under the contract and treat it as repudiated.” (Part I contracts to which act applies). Again, under Sub sections 2 of the same Act, the breach by the seller if express or implied terms would ensure that the quality and fitness of the goods would conform to the specifications or product literature supplied by the buyer. In this case it is seen that console does not work as advertised in its product literature. This could be in violation of Section 4 (2) Supply of Sale of Goods and Services Act 1982, “where, under such a contract, the transferor transfers the property in goods in the course of a business, there is an implied condition that the goods supplied under the contract are of satisfactory quality.” (Part I supply of goods 2008). Even if we are to take the larger context of CISG laws, it is seen that quality and fitness standards are of paramount importance in sale of goods under international laws. Article 35 Sub sections 1 of Contract of International Sale of Goods clarified that the goods delivered by the seller must match the contract in quality, description, packaging, etc.(UN Conventions on contracts for the International sale of Goods (1980): Section II: Conformity of the goods and Third party Gains: Art.35 (1) (United Nations Convention On Contracts for The International Sale Of Goods (1980)). Again, under section 79 (1) of CISG, it is seen that “A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.” (United Nations Convention On Contracts for The International Sale Of Goods (1980)). Thus, in this case it is seen that Reilly has to prove that the defect was one of manufacturing, or assembling on the part of the buyer and not due to any mishandling on his part. By pining the blame on the buyer Reilly, the seller, LSEL is trying to relinquish their own liability on the contract. Thus under the laws of Section 79 of CISG, the sellers need to prove that the defects arise not due to factors that beget lack of control on their part. Thus, although the aspects of damages are very much present in this case, it is quite possible that there could be avoidance of the contract by the buyer, Reilly in this case. Thus the claim for damages made by Reilly would need to focus on the fact that the goods supplied was not in congruence with the agreement, and also, although it was well within the control and jurisdiction of the seller, apparently it took no steps to remedy the situation. Courts may concur upon a reasonable sum as damages, taking into account the settings and circumstances of the case, the conduct of the parties and the quantitative amount that would truly reflect the state of the aggrieved buyer, had the breach of contract not taken place. It also needs to be considered that Courts would be circumspect and skeptical on verdicting a higher rate of damages than that could naturally and directly flow from the breach of contract and non-conformity of the seller. In the Hadley v. Baxendale (1854) 9 Exch. 341) case, it was seen that the remoteness of the damages was stressed upon by the courts. It is in the fitness of jurisprudential sentences that the causation of the losses and the proximity of damages need to be ensured. Thus, only losses which have a direct and near bearing upon the breach could possibility be compensated by the Courts, and not losses which are professed or assumed, or notional losses. Thus, if damages could be quantified it is to be paid, not the assumption that the damages to the crankshaft would result in future losses to the firm. As the Court observed in this landmark case that has sustained the test of time and changing legal settings, in terms of pining liability and loss determination, and proximity of causation, "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." (Hadley v Baxendale (1854) 9 Exch 341 2009). In this case it would necessary to consider the case of Delchi v. Rotorex CA 2d Cir. 6, in which the Court decided that “Under UNCCISG, Delchi is entitled to collect monetary damages for Rotorexs breach in "a sum equal to the loss, including loss of profit," although not in excess of the amount reasonably envisioned by the parties. UNCCISG, art. 74.” (CISG case presentation 2004). Thus, the Vienna Convention on which the CISG relies upon has delineated the broad guidelines that delineate the CISG and its application in empirical situations. While it is left to the Courts of Member States to consider the applications of lawsuits and deliberate upon its merits or otherwise, it is also necessary that the verdicts pronounced need to be in fairness and in the best interests of the parties, placing the aggrieved party in a position had the loses, or damages not taken place, and ensuring that a just and equitable solution needs to be found for the vexed and contentious issue. The role of the International Court of Justice in meeting justice in global litigation is well documented. As a dispassionate and independent arbiter, the ICJ has rendered distinctive service for the cause of individual and institutional litigative activities, and is the ultimate refuge for justice seekers. Conclusions: In this case, it could therefore be seen that since the English Courts, or the EU, do have jurisdiction since there is no jurisdictive ambit by the French Company or the French Court. As the option of the parties the final arbiter in this case could be the English Courts following the UK Sale of Goods and Services Act, or it could even be contested under EU laws following the United Nations Convention on International Sale of Goods Act. (CISG). Although in the case of Jones v. LSEL, the ultimate authority would vest on the French Courts, it is seen that in the case o Reilly v. LSEL, the English Courts do have jurisdiction to decide the case. However, since this is a transnational case involving two or more countries, the aspect of CISG or international sale of goods act also needs to be considered, in so far as the arguments of the case and its deliberations are concerned. EU laws take precedence over local laws and this has to be addressed to during the implementation of the EU verdict in these cases. While the final verdict would be delivered by the august Court, its implementation and executors functions would be bestowed on the local courts and authorities. However, it needs to be mentioned that major aspects in global litigation would vest upon the circumstances of cases and the conduct of parties. It is also possible that the litigating parties, would prefer an out of court settlement possibly through the use of arbitrators, or other such mediators which could go a long way in ensuring swift, speedy and cost free justice to all. 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