International Jurisdiction Over Individual Employment Contracts

Abstract

This chapter addresses litigation arising out of seafarers and fishermen’s contracts of employment. Other litigation issues such as those arising from non-contractual obligations, social security matters and employer insolvency are also tackled, but the focus is on Section 5, Chapter II, of the Brussels I bis Regulation and the 2007 Lugano Convention (Sect. 3.2). International jurisdiction criteria laid down therein do not specifically refer to seamen, but their contracts are also dealt with by that Section. The issue is the location of their habitual place of work, given that their duties to the shipowner are usually performed on a non-sovereignty area, while the alternative forum established for the case work is not performed in one and the same country is susceptible to manipulation and thus not reliable in providing seamen’s access to justice. The chapter discusses the role of public international law in filling up this gap, which has been somehow contended by the Court of Justice. However, this role cannot be undermined, in particular in the light of the efforts made by ILO to level the playing field and to make flag states comply with minimum standards as laid down in the Maritime Labour Convention, 2006, and the Work in Fishing Convention, 2007. Anyway, access to justice requires taking into account business cooperation, and the forum of the branch can play a key role in the maritime and fishing sectors by entitling seamen to litigate in the country where the manning agency recruiting them is located. In a similar vein, other criteria contained in national law (Sect. 3.3) and, in particular, the 1952 and 1999 Conventions on the Arrest of Ships, which establish a forum arresti (Sect. 3.4), are tackled in this chapter given that seamen’s access to justice is only served by a wide variety of criteria to determine international jurisdiction (Sect. 3.5).