Choice of Law in Employment Relations Involving Foreign Element: Problems of Current Regulation and Prospects for Modernisation of Ukrainian Private Law

Abstract

The article is devoted to the issue of determining the admissibility of implementing the principle of party autonomy in employment relations with a foreign element under the current legislation of Ukraine. The relevance of the study is dictated by the absence of a unified approach in Ukrainian legal scholarship regarding the possibility of choosing the law applicable to an employment contract, as well as by the need to harmonise Ukrainian legislation with the law of the European Union. The purpose of this article is to define the content and legal nature of Part 1 of Article 52 of the Law of Ukraine «On Private International Law» and to determine whether the general provisions on the choice of law may be applied to employment contracts. The methodological basis of this article consists of the systemic, historical-legal, and comparative-legal methods, which made it possible to perform a comprehensive assessment of the current conflict-of-laws regulation, the provisions of relevant international treaties of Ukraine, and foreign legislation. Particular attention is paid to the correlation between general and special conflict-of-laws rules, as well as to the role of mandatory and/or overriding mandatory rules in ensuring the protection of employees’ rights. The analysis has shown that the current wording of Article 52 of the Law of Ukraine «On Private International Law» is mandatory in nature and does not provide for the possibility for the parties to choose the law applicable to an employment contract, except in cases expressly provided for by laws or international treaties of Ukraine. It is proven that the application of general provisions on the choice of law to employment relations contradicts the specific nature of labour law and creates risks of circumventing laws aimed at protecting employees’ rights. At the same time, the comparative analysis shows that most European legal orders allow limited party autonomy in employment relations, provided that a certain standard of protection of employees’ rights is ensured. This approach is also reflected in the new Draft Civil Code of Ukraine, which fixes the possibility of choosing the applicable law, provided that the employee’s position is not worsened. In conclusion, the article argues that it is advisable to introduce into the national legislation of Ukraine the institution of limited party autonomy in employment relations complicated by a foreign element, with clear statutory guarantees for the protection of the employee as the economically weaker party.