Posts Tagged 1241

Heller v Uber at the Ontario Court of Appeal: arbitration clause requiring arbitration in the Netherlands of disputes between drivers and Uber invalid.

Thank you Christopher Burkett for alerting me to Heller v. Uber Technologies Inc., 2019 ONCA 1.  The case is reminiscent of California’s Senate Bill 1241 (review here) and of an article that I co-authored with Jutta Gangsted [‘Protected parties in European and American conflict of laws: a comparative analysis of individual employment contracts]. The starting point of the California, the EU rules, and the Canadian judgment is the same: employees cannot be considered to really consent to either choice of law or choice of court /dispute resolution hence any clause doing same will be subject to mandatory limitations.

Here, an arbitration clause requiring arbitration in the Netherlands of disputes between drivers and Uber was held to be invalid and unenforceable, because it deprives an employee of the benefit of making a complaint to the Ministry of Labour under relevant Ontarian law.

Of note is that the judgment applies assuming the contract is one of employment – which remains to be determined under Ontarian law. Of note is also that the Court of appeal rejected Uber’s position that the validity is an issue for the arbitrator to determine because it is an issue going to the jurisdiction of the arbitrator. Uber invoked the “competence-competence” /kompetenz kompetenz principle in support of its position.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 2.2.8.3, Chapter 3, Heading 3.2.5.

, , , , , , , , , , , , , , , , , , , ,

Leave a comment

Going European: California S.B. 1241. Employee protection for choice of law and choice of court.

Thank you Cozen O’Connor for alerting me. California’s Senate Bill 1241 was signed into law at the end of September. It will apply to employment contracts entered into, modified, or extended on or after 1 January 2017.

The Bill will feature in a forthcoming article that I am co-authoring with Jutta Gangsted. I have not (yet) studied the preparatory work in detail however the Bill immediately calls for comparative analysis with the EU’s’ approach to this particular ‘protected category’: what is a labour (employment) contract; how does ‘primarily resides and works in California’ compare with ‘habitually carries out his work’ and ‘domicile’; when exactly is a contract ‘modified’ (on this see for the EU, Nikiforidis). The starting point of both the California and the EU rules is the same: employees cannot be considered to really consent to either choice of law or choice of court hence any clause doing same will be subject to mandatory limitations.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 2.2.8.3, Chapter 3, Heading 3.2.5.

, , , , , , ,

Leave a comment

%d bloggers like this: