7 Modern principles - Rome 1
The Supreme Court’s reference to the EU rules of law (see 5.1 above) requires some remarks. Our question is what result the rules promulgated in Rome I (Regulation (EC) no. 593/2008 of the European Parliament and of the Council of 17 June 2008) would lead to if applied in the Eimskip case.
The rules apply to “contractual obligations”, with general rules and special rules for i.a. “individual employment contracts” (Art. 8).
Art. 3 on freedom of choice says, in sub. 1, that a choice “shall be made expressly” or shall be “clearly demonstrated by the terms of the contract or the circumstances of the case”. In the Eimskip case there was no express choice, and in the circumstances - as presented in the descriptions given by the courts - it is doubtful whether the criteria “clearly demonstrated” is met. Accordingly, we have to turn to Art. 8 on individual employment contracts, with its three layers of rules.
The first rule of Art. 8 is in sub. 2, referring to “the law of the country in which or from which the employee “habitually carries out his work in performance of the contract”. Since the vessel did not fly the Norwegian flag, the greater part of the work was, technically speaking, not performed in Norway, even though the vessel, for the better part of the relevant period, was in Norwegian waters.
Then we come to the second layer in sub. 3, referring to the law of the country “where the place of business through which the employee was engaged is situated”. This means Norwegian law for our mate.
The last resort is that failing a decision according to sub. 2 or sub. 3, sub. 4 states that the applicable law is that of the country “that the contract is more closely connected with”, than one of the countries indicated in sub. 2 or sub. 3. In the present case, this country is obviously Norway: We have a Norwegian mate, engaged by a Norwegian company, signing the contract in Norway, working on board a vessel that only occasionally trades outside Norwegian waters, and when outside the Norwegian area sailed to England and the Netherlands, i.e. countries that clearly are of no significance when deciding upon the choice of law question.
The indicated rules are, however, subject to “overriding mandatory provisions”, as spelled out in Art. 9. But this reservation is of no interest in the present context.
One possible objection may be based on Art. 25, which says that the Rome 1 rules “shall not prejudice the application of international conventions to which one or more Member States are parties”. Assuming that Norway is a Member State, it may be questioned whether UNCLOS’ principle in Art. 92, on the exclusive jurisdiction of the flag state, prevents the Norwegian court from applying the employment laws of another state than Antigua. As I see it, the answer is clearly no.