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

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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.
Originele taal-2Dutch
Artikelnummer319
Pagina's (van-tot)251-273
Aantal pagina's23
TijdschriftNIPR
Volume2021
Nummer van het tijdschrift2
StatusPublished - jul.-2021

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