What Is Non Contractual
To avoid confusion, manuals should be divided into sections that clearly indicate which section contains contractual rights and which section contains discretionary benefits. As an additional protection, non-contractual services should not be referred to as “claims”. A clear identification of contractual and non-contractual benefits avoids confusion. A recent European Union regulation (Council Regulation (EC) No 864/2007 (Council Regulation (EC) No 864/2007, known as Rome II) allows parties to commercial contracts to choose the law that applies to certain non-contractual disputes between them. As part of a fundamental change in the way most EU Member States resolve non-contractual conflict-of-laws rules, the law applicable to most non-contractual disputes, if no choice of law is made, is now that of the country in which the damage occurs and no longer the law in which the act was committed. Finally, it should be noted that if an employer wishes to change a contractual claim, these changes must be agreed with the employee after a consultation phase – see Modifying a contract. However, the advantage of such universal application is that contracting parties from third countries have the possibility to choose an applicable law of which they are familiar in order to apply it to some of their non-contractual obligations. This should increase legal certainty for the parties and ensure the consistency of the legislation to which they are subject. Accordingly, undertakings and financial institutions carrying out cross-border transactions for which a Union court may have the opportunity to exercise its jurisdiction should familiarise themselves with the new rules and negotiate a choice of law clause applicable to non-contractual and contractual obligations when concluding new contracts. If the event giving rise to the damage has already occurred, it is possible, under the new rules, for the parties to subsequently choose the law applicable to the dispute, provided that they are able to reach an agreement. Since the new Regulation provides that the applicable law also regulates factors such as the burden of proof and the nature and extent of compensation for any damage caused (a significant departure from the previous position), the parties should consider this choice of clauses with the utmost care. It is important to remember that not all conditions that must be set out in the written statement of employment need to be contractual.
For example, while it is necessary to make arrangements for disciplinary and complaint procedures, jacS would advise making it clear that these are not contractually bound. In other words, the procedures specify how disciplinary measures or complaints are handled, but the fact that they are not contractual means that the procedure does not have to be followed to the letter. “Non-contractual obligations” may include tort claims such as negligence, misrepresentation and pre-contractual deception or requests for surrender or unjust enrichment. As a result, parties transacting across borders with a number of counterparties may risk that an act committed in one country that causes harm in a number of jurisdictions may result in multiple claims subject to a number of different applicable laws, resulting in a related increase in the complexity and cost of litigation. Another risk is that, since the new regulation has “universal validity”, it is possible that the applicable law is the law of a non-EU member state, for example. B Uk courts could apply Nigerian law to a non-contractual dispute if the damage occurs in Nigeria. This could lead companies to conclude that they have breached non-contractual obligations that do not exist in their home country. If the Personnel Manual contains contractual rights, the Jersey Labour Court has indicated that employees should have easy access to them, otherwise the requirements of section 3 of the Employment (Jersey) Act 2003 may not be met.
Rome II applies to events that result in damage and occur after 20 August 2007 (the date of its entry into force), provided that a claim is made for such damage as of 11 January 2009. It applies throughout the European Union, with the exception of Denmark. The main objective of Rome II is to harmonise the rules governing the law applicable to non-contractual disputes, so that all EU Member States (with the exception of Denmark) apply the same rules to conflict-of-laws rules relating to non-contractual obligations. The aim is to increase legal certainty for parties doing cross-border business in the European Union and to prevent forum shopping by parties to a non-contractual dispute. Choice of law applicable to certain non-contractual disputes to be decided between the parties to commercial contracts. Parties to any type of cross-border pre-contractual negotiations should be aware that they may now be unexpectedly bound by the law of that contract in any non-contractual dispute, even if the contract is never concluded (Article 12). This is a significant change from the general position of English law, where pre-contractual negotiations are generally not binding. The parties to such negotiations may be bound by “bona fide” bargaining obligations and other obligations that do not exist under English law.
In order to avoid such risk, an explicit agreement on the law applicable to non-contractual obligations should be concluded at the beginning of the negotiations. Rome II is not concerned with the question of which courts of the country have jurisdiction to hear a particular claim, but rather which law of the country should be applied by the presiding court with respect to a non-contractual claim. Rome II has no influence on the applicable law in contractual disputes. With a few exceptions, Article 14 allows the parties to agree on the right that their future non-contractual arrangement will govern, provided that such choice is “expressed with sufficient certainty by the circumstances of the case and does not affect the rights of third parties”. When looking at the “employment package”, it can easily lead to confusion between the benefits to which employees are contractually entitled and the benefits that are at their own discretion, that is, . . .