Choice of Law Q

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itsfine
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Choice of Law Q

Postby itsfine » Thu Jun 02, 2011 8:31 pm

State A has B statute. Company X is headquartered in state A, but has overseas operations in another country, is Company X bound by B statute when dealing with its employees in the foreign country? No legislative intent shows any reason to think the State legislature intended the statute to apply overseas.... Does that even matter?

floggered
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Re: Choice of Law Q

Postby floggered » Thu Jun 02, 2011 9:26 pm

itsfine wrote:State A has B statute. Company X is headquartered in state A, but has overseas operations in another country, is Company X bound by B statute when dealing with its employees in the foreign country? No legislative intent shows any reason to think the State legislature intended the statute to apply overseas.... Does that even matter?


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Last edited by floggered on Wed Aug 29, 2012 9:09 am, edited 1 time in total.

itsfine
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Re: Choice of Law Q

Postby itsfine » Thu Jun 02, 2011 10:20 pm

floggered wrote:
itsfine wrote:State A has B statute. Company X is headquartered in state A, but has overseas operations in another country, is Company X bound by B statute when dealing with its employees in the foreign country? No legislative intent shows any reason to think the State legislature intended the statute to apply overseas.... Does that even matter?


It depends on a number of different factors that your "hypothetical" doesn't address. For starters:

What is the claim? Who is suing whom? Assuming the claim is under statute B, what does "B" actually say? Are these employees nationals or residents of State A or State [you never gave the foreign state a designation, so I'll call it "Z"] Z? Where is the claim brought, in State A or State Z? Is Company X a subsidiary of/working on behalf of/related to either State A or Z?


Ok so say a NY statute says you need to perform say, monthly health checkup for your employees. Now, say your company is conducting operations in foreign country Z (kinda like Nike going into China to make shoes), and the company doesn't want to perform monthly health checks on their employees (for whatever reason, say they save money this way)....when the company runs its operations in Z, is the NY statute applicable anymore? No one is suing anyone yet, its just a matter of whether or not the statute applies (which obviously down the line, could easily dictate whether one sues at all I suppose). The employees, who would be guaranteed monthly check ups are citizens and residents of the foreign country Z- they are not citizens of the US and are not US nationals (although one could safely assume that the people in charge of the overseas operation in Z are citizens of US....as if Nike sent over top American employees to conduct business in China, and these are the people who would rather not abide by the NY statute). To me this seems to be an issue of "extraterritoriality." The statute, as previously mentioned, does not mention anything about applying out of the NY territory.

floggered
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Re: Choice of Law Q

Postby floggered » Thu Jun 02, 2011 10:55 pm

itsfine wrote:Ok so say a NY statute says you need to perform say, monthly health checkup for your employees. Now, say your company is conducting operations in foreign country Z (kinda like Nike going into China to make shoes), and the company doesn't want to perform monthly health checks on their employees (for whatever reason, say they save money this way)....when the company runs its operations in Z, is the NY statute applicable anymore? No one is suing anyone yet, its just a matter of whether or not the statute applies (which obviously down the line, could easily dictate whether one sues at all I suppose). The employees, who would be guaranteed monthly check ups are citizens and residents of the foreign country Z- they are not citizens of the US and are not US nationals (although one could safely assume that the people in charge of the overseas operation in Z are citizens of US....as if Nike sent over top American employees to conduct business in China, and these are the people who would rather not abide by the NY statute). To me this seems to be an issue of "extraterritoriality." The statute, as previously mentioned, does not mention anything about applying out of the NY territory.


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Last edited by floggered on Wed Aug 29, 2012 9:10 am, edited 1 time in total.

itsfine
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Re: Choice of Law Q

Postby itsfine » Thu Jun 02, 2011 10:58 pm

floggered wrote:
itsfine wrote:Ok so say a NY statute says you need to perform say, monthly health checkup for your employees. Now, say your company is conducting operations in foreign country Z (kinda like Nike going into China to make shoes), and the company doesn't want to perform monthly health checks on their employees (for whatever reason, say they save money this way)....when the company runs its operations in Z, is the NY statute applicable anymore? No one is suing anyone yet, its just a matter of whether or not the statute applies (which obviously down the line, could easily dictate whether one sues at all I suppose). The employees, who would be guaranteed monthly check ups are citizens and residents of the foreign country Z- they are not citizens of the US and are not US nationals (although one could safely assume that the people in charge of the overseas operation in Z are citizens of US....as if Nike sent over top American employees to conduct business in China, and these are the people who would rather not abide by the NY statute). To me this seems to be an issue of "extraterritoriality." The statute, as previously mentioned, does not mention anything about applying out of the NY territory.


First, this is not legal advice and neither you nor anyone else rely on anything I say.

Second, you're asking whether a state law regarding mandatory health screenings is applicable outside of that state. The simple (and only) answer is: No. It's applicable only to events, transactions, or occurrences arising out of that state. The fact that the company is headquartered in the United States, and, in Nike's case, in Oregon, is immaterial to whether a New York law applies abroad. Even if we're talking about a federal law, I think you get the same result.

If, however, the claim is based on the product itself that is shipped to the United States, the analysis is a more complicated and may come out differently.

Third, the citizens are not Americans. The extraterritoriality principle has no bearing on the question. Generally speaking, a presumption against extraterritoriality exists in the United States judicial system. Unless the Congress intended the statute to apply abroad, it does not apply abroad. Read Morrison v. National Australia Bank (http://www.scotusblog.com/case-files/ca ... alia-bank/) if this stuff interests you.



thanks a lot, its people like you that give TLS a good name

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Zugzwang
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Re: Choice of Law Q

Postby Zugzwang » Fri Jun 03, 2011 12:22 am

I would also look at Aramco v. EEOC (scotus decision, 499 US 204)

An American company hired an American citizen to work overseas, Title VII employment law did not apply extraterritorially to alleged acts of discrimination committed by the American company against the American employee. (Applying US law to a non-citizen seems even less likely in view of that).

Regarding products, I don't think employment laws would apply. Not entirely sure on this matter and I have no idea what the answer is, but I believe one of the controlling issues is whether Congress' power to control international commerce applies (plus, banning goods made in other countries due to humanitarian concerns seems to be a matter of foreign policy), so a state probably wouldn't be able to pass a law which could impact foreign exports into the USA, nor could the law have that effect.

itsfine
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Re: Choice of Law Q

Postby itsfine » Fri Jun 03, 2011 7:57 am

Zugzwang wrote:I would also look at Aramco v. EEOC (scotus decision, 499 US 204)

An American company hired an American citizen to work overseas, Title VII employment law did not apply extraterritorially to alleged acts of discrimination committed by the American company against the American employee. (Applying US law to a non-citizen seems even less likely in view of that).

Regarding products, I don't think employment laws would apply. Not entirely sure on this matter and I have no idea what the answer is, but I believe one of the controlling issues is whether Congress' power to control international commerce applies (plus, banning goods made in other countries due to humanitarian concerns seems to be a matter of foreign policy), so a state probably wouldn't be able to pass a law which could impact foreign exports into the USA, nor could the law have that effect.


good stuff thanks! Yeah i wasn't thinking so much about products, as that certainly makes the analysis a bit more messy, but "(Applying US law to a non-citizen seems even less likely in view of that)" makes a lot of sense.

NotMyRealName09
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Re: Choice of Law Q

Postby NotMyRealName09 » Tue Jun 07, 2011 2:05 pm

Are you secretly setting up an international corporation and seeking choice of law advice from the TLS forums? For shame.... :?




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