International Labor Relations Law Applies

As international labor service trade dominates remarkable status in international trade,the various international labor service relations formed in international labor service trade are also becoming important social relations in the international economic development.As international labor service relations involve the civil and commercial legal systems of different countries and districts as well as international treaties and conventions,which differ in various aspects such as the validity of an international labor service contract,the treatment of a migrant worker,and the rights and obligations of those participants into the international labor service trade,etc.,different judgment would be made if different law is applied by a judicial tribunal. Therein arises the conflict of laws in international labor service relations.It would be impossible for all countries to unify their national laws into a uniform substantive law observed by all countries and districts to harmonize such conflict of laws in international labor service relations.Therefore,it is,and shall be,a necessary method to determine one of the conflicting laws as the applicable law through choice of law rules for the settlement of such conflict of laws.As an international labor service relationship involves various parties and covers both labor relationship and ordinary civil relationship.Before analyzing the application of law to such a complicated labor service relations,the legal relationships should be first clarified and then the choice of law rules are determined corresponding to each specific legal relationship.On the other hand,as the legal relationships within an international labor service relationship are interwoven with each other,the choice of law rules would be influential on each other and need to be considered as a whole.As the primary principle of private international law,the doctrine of party autonomy plays a significant role in the determination of law applicable to international labor relations.As a rule originating from contract autonomy doctrine,the doctrine of party autonomy reflects the common will of the parties,which should be respected.However,when an employee' s interests are involved,party autonomy shall be restricted that it shall not derogate the mandatory protection on the employee which would be applicable in the absence of a choice between the parties.Neither shall such mandatory protection be derogated even for the parties to the civil relationship when an employee' s interests are involved.The doctrine of most significant relationship puts objective contact points as the basis for judgment,also reflecting the justifiable expectation of the parties when signing a contract.A dispute in international labor service is fundamentally an interest dispute among the parties to the international labor service trade.Therefore,based on the principle of autonomy of private law,the law applicable to relevant contracts for the specification of the parties' rights and obligations should be determined with the parties' subjective intention considered first and the objective contact points considered later,as directed by the doctrine of party autonomy and the doctrine of most significant relationship.As general rules formed through long-term practice and universally recognized by international community, international treaties and conventions on labor services should be considered in settling disputes and determining the parties' rights and obligations.The mechanism of special protection of employees should be taken into first consideration in the application of law to international labor service relations.Firstly,the domestic mandatory rules,which can not be derogated by the parties' choice,should not be limited to those of the law of the place where the work is habitually carried out,but should include those of the law of the country with "sufficient contact".In addition,the international mandatory rules,which can not be derogated by the applicable law determined,should include not only those of the lex fori,but also those of the law chosen by parties as well as those of the laws of the countries with "sufficient contacts".Secondly,the "Most Favorable for Employees Principle" shall be used not only in the application of mandatory rules but also of non-mandatory rules.Thirdly, the expanding use of the "Most Favorable for Employees Principle" shall not mean to deny fundamentally the methods of private international law.As one of the three main types of international labor service relations,the Laborer Dispatching Cooperation(LDC) relationship is complex as there are normally three contracts among the three parties though with similar content.There is some connection among the choice of law rules.The employment relationship between the laborer and the employer abroad dominates the core status,while the laws applicable to the other two contracts shall be determined with consideration of the choice of law rule for employment relationship,in particular,the rule of special protection of laborers.In the determination of an applicable law,especially to those issues involving laborers' rights and interests, a court or an arbitral body can not exclude the mandatory protection of laborers provided by relevant countries with "sufficient contacts",and shall pursue the mandatory rules of the law most favorable for the employee. China needs to make improvements both in legislation and in practice as the basic legal relationship is seldom differentiated clearly enough on LDC,thus leading to vague legislations and inconsistent judicial practices.As another main type,International Project Contracting(IPC) labor relation is formed with three parties comparatively independent,while the owner is usually not on any contractual relationship with the IPC laborers.As the contracting relationship is related with the employment relationship,however,the determination of its applicable law would be influenced by the special rules for employment relationship.Considering the fact that the contractor and the IPC laborers hold the same nationality, the party autonomy shall not exclude the compulsory rules of the place where the work is carried out,the country of the laborer' s nationality, as well as the other countries with "sufficient contacts",and the mandatory rules of the law most favorable for the employee.The law of the parties' common nationality as well as other contact points should also be given more consideration in determining the place of the most significant relationship with the employment relationship.With legislation only on the applicable law of IPC contracts,China should add the choice of law rules on IPC labor relationship into its legislation. In an Overseas Expats Dispatching(OED) labor service relationship, the corporation law of the place where the subsidiary company is established is normally applied to the relationship between the parent company and the subsidiary company,thus the dispatching of employees is often seen as the internal affair of the multinational corporation.In practice,the expats may form labor relationship with the parent company or the subsidiary company,which needs to be differentiated.In analyzing the relationship of an expat with either the parent company or the subsidiary company,the conclusion should be drawn based on where the actual control on the expat comes from.Whether the expat forms an employment relationship with the parent company or with the subsidiary company,the general rules of the applicable of law to an employment relationship shall apply.When the expat forms an employment relationship with the parent company,however,the expat shall have not direct contractual obligations to each other,and any labor dispute can only settled with the parent company.Chinese courts should refrain from the habit of ignoring the rules of private international law in foreign-related labor service cases, determine the applicable law based on private international law rules, and enhance the scientificity and transparency in choice of law,so as to promote the international image of Chinese judicial authority,and to facilitate the development of harmonious international labor service relations.