III.EMPLOYMENT CONTRACTS IN THE UN CONVENTION
Employment relations seem at first sight to enter within the area of private law,…
The UN Convention on Jurisdictional Immunities of States and their Property, in…
“Article 2 Use of terms 1. For the purposes of the present Convention:…
(…)…
(c) “commercial transaction” means: (i) any commercial contract or transaction for the sale of goods or supply of services; (ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction; (iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons.…
2. In determining whether a contract or transaction is a “commercial transaction” under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction. (…)”As seen above, notwithstanding the broad definition given to commercial transactions,…
“Article 11 Contracts of employment…
1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.…
2. Paragraph 1 does not apply if:…
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;…
(b) the employee is:…
(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961; (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963; (iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or (iv) any other person enjoying diplomatic immunity;…
(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;…
(d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head …
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or…
(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”…
Thus, broad exceptions to adjudication by the host state are reserved in the UN Convention,…
An extract of the Commentaries of the draft article 11 confirms this provision and gives concrete examples illustrating the offices of the persons concerned:…
“(9) Paragraph 2 (a) enunciates the rule of immunity for the engagement of government employees of rank whose functions are closely related to the exercise of governmental authority. Examples of such employees are private secretaries, code clerks, interpreters, translators and other persons entrusted with functions related to State security or basic interests of the State. Officials of established accreditation are, of course, covered by this subparagraph. Proceedings relating to their contracts of employment will not be allowed to be instituted or entertained before the courts of the State of the forum.”…
However, in view to prevent a too extensive conception of immunities linked to the…
“The Commission on second reading considered that the expression “services associated with the exercise of governmental authority” which had appeared in the text adopted on first reading might lend itself to unduly extensive interpretation, since a contract of employment concluded by a State stood a good chance of being “associated with the exercise of governmental authority”, even very indirectly. It was suggested that the exception provided for in subparagraph (a) was justified only if there was a close link between the work to be performed and the exercise of governmental authority. The word “associated” has therefore been amended to read “closely related”. In order to avoid any confusion with contracts for the performance of services which were dealt with in the definition of a “commercial transaction” and were therefore covered by article 11, the word “services” was replaced by the word “functions” on second reading.”…
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