Posts Tagged california

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 (recently illustrated e.g. by the Brisilian Supreme Court in Petrobas) 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.

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Rincon. Overriding mandatory law or ‘lois de police’ in California.

Rincon ((2017) 8 Cal. App 5th 1) is another case suited to comparative conflicts classes. It applies California’s restrictive regime on waiver of jury trial to a contract governed by New York law and with choice of court for New York.

‘Lois de police‘, also known as lois d’application immédiate or lois d’application nécessaire,  are included in the EU’s Rome I Regulation (on applicable law for contracts) in Article 9. (I reported earlier on their application in Unamar).

Jason Grinell has background to the case. Parties had made choice of law and choice of court in favour of New York. The link with New York was real (in EU terms: this was not a ‘purely domestic’ situation), inter alia because of the involvement of New York-based banks, parties being sophisticated commercial undertakings, and the contract having been negotiated in NY. However the real estate development is located at San Francisco, giving CAL a strong link to the case. Under CAL law,  parties generally cannot waive a jury trial before the commencement of a lawsuit unless they use one of two methods approved by the legislature. New York law does not have the same provision and choice of court clauses in favour of New York do not include reference to the only options available under CAL law.

In the case at issue, the boilerplate choice of court clause was set aside by the Court of Appeal. The lower court had denied a substantial enough Californian interest in the case – the CA disagreed. The relevant part of the judgment runs until p.22.

That comparative conflicts binder is filling out nicely.

Geert.

 

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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.

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