Exemption Clauses, Employment Contracts and the Conflict of Laws

Abstract

Abstract Although the questions of principle raised in Sayers v. International Drilling Co. [1971] 1 WLR 1176 (CA) remain live ones, the actual decision in the case would now be different because the exception clause in such circumstances would be invalidated by the Unfair Contract Terms Act 1977. That Act was part of a general development to restrict the application of foreign law in order to protect the weaker party. The EEC Conventions on jurisdiction and on contractual liability also contain special provisions in favour of employees. The Brussels Convention (as amended in 1989) and the Lugano Convention contain similar (but not identical) provisions, the substance of which is that in matters relating to individual contracts of employment, the place of performance of the obligation in question will be the place where the employee habitually carries out his work, or if the employee does not habitually carry out his work in one country, the employer may also be sued in the courts of the place where the business which engaged the employee was or is situated: Article 5(1). The effect of Article 17 (as amended) of the Brussels Convention and Article 17 of the Lugano Convention is that, as against the employee, a jurisdiction agreement is to be effective only if it is entered into after the dispute has arisen.