Abstract
LL.M. (International Commercial Law)
“It is in this very context of employment relationships which have a cross-border
dimension that conflict of law between individual legislative systems in the area of
employment law raise complex questions of law. One of the consequences of this is that
they often present the courts … which are called upon to determine the law applicable to
an employment contract with considerable problems. Alongside the customary difficulties
associated with interpreting the employment contract comes the uncertainty as to what the
best approach is to determining the applicable law. These difficulties in judicial practice
are on the increase as it becomes more common for workers to be posted, more EU citizens
avail themselves of the freedom of movement for workers and more undertakings enter
into relationships with firms overseas or operate places of business in other countries. The
– temporary or indefinite – posting of large numbers of employees has become an
important aspect of international economic relations, not only within the European internal
market but, more generally, throughout the world. It is for that very reason that there is an
urgent need for conflict of law rules which offer the contracting parties foreseeable
solutions to the numerous problems that affect employment relationships...”Like Advocate General Trstenjak, South African writers are not ignorant of the
complications that international contracts of employment bring. As correctly pointed out by
Calitz, globalisation has resulted in many South African employees increasingly working for
South African employers outside of South Africa and the determination of any disputes that
may arise in these unique employment relationships requires the application of conflict of
laws. This is problematic and the present author submits that there is a lacuna in South
African private international law in respect of employment contracts involving a foreign
element. A number of factors have contributed to this gap in South African private
international law, namely the infrequency with which judges in South African courts have
been called upon to determine such issues.