Rechtskeuze in het ipr-arbeidsrecht: enkele gedachten over het begunstigingsbeginsel

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Abstract

This article discusses the preferential law approach that is enshrined in Article 8(1) Rome I Regulation. This provision limits the effects of a choice of law in the sense that the choice may not deprive the employee of the protection afforded to him by the mandatory provisions of the law that would have applied in the absence of a choice. It is generally accepted that the law that is most favourable to the employee merits application. The determination of this preferential law requires a comparison between the chosen law and the law that would have applied in the absence of such a choice. The article examines the method of comparison used throughout Dutch case law and shows that a preferential law approach is rarely applied. Instead, the majority of judgments apply the mandatory provisions of the objectively applicable, Dutch, law without further explanation. Since the application of the preferential law approach seems to be plagued by ambiguity, this article questions the desirability and practical feasibility of the comparison between the chosen law and the mandatory provisions of the law that would have applied in the absence of such a choice.
Original languageDutch
Article number319
Pages (from-to)251-273
Number of pages23
JournalNIPR
Volume2021
Issue number2
Publication statusPublished - Jul-2021

Keywords

  • conflict of laws
  • employment law
  • preferential law approach
  • art. 8 Rome I

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