Browsing by Author "Erfurth, Julian"

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Binding Sovereign States as Non-Signatories to Arbitration Agreements
(Te Herenga Waka—Victoria University of Wellington, 2012) Erfurth, Julian; McLachlan, Campbell
The jurisdiction of arbitral tribunals is restricted to the parties of the arbitration agreement. As formal signatories of the contract containing the arbitration clause, those parties are usually easy to determine. In some situations, however, attempts are made to compel persons or entities to arbitrate that have neither signed the arbitration agreement nor have in any other way expressed their consent to be bound to it. Those parties are commonly referred to as non-signatories to the arbitration agreement. Although predominantly occurring in commercial contracts between private corporations, also states frequently face situations where a private party, after having entered into an arbitration agreement with a state-owned entity, claims that the state itself has to be considered as true party to the agreement. Apart from the problems arising from non-signatory situations in general, those constellations give rise to a number of specific issues, primarily rooted in the distinctive features of state contracts compared to private sector contracts. Against the background of those characteristics, the paper makes an argument for a more practical approach towards non-signatory issues. Instead of purely relying on the determination of the parties’ common intention, closer account should be taken of considerations of good faith and equity.
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The Employment Status of Temporary Agency Workers
(Te Herenga Waka—Victoria University of Wellington, 2013) Erfurth, Julian
In contrast to traditional standard employment relationships, various forms of atypical or nonstandard employment have emerged and established over the last century in practically all developed economies. A popular example for such non-standard employment constitutes the increasing use of temporary agency work. Instead of hiring their own employees, companies that are in need of workers can resort to temporary work agencies to get provided with workers without having to enter into an employment contract. As those workers are on the payroll of the temporary work agency, the hiring company is only obliged to pay a commission fee to the latter without however being concerned with typical employer responsibilities, particularly the dealing with dismissals and possible claims arising from them. While generally appreciated by companies, temporary agency work also gives rise to various concerns. Along with issues of discrimination and marginalisation, the general employment status of agency workers raises questions and problems stemming from the triangular character of the agency work constellation where three parties are actively involved. With respect to fundamental employment rights, it is crucial to determine the employment status of agency workers as otherwise, those workers are likely to miss out on fundamental legal protection. This paper presents the reasons for the increased popularity of temporary agency work and addresses the issues presented above. It analyses different legal approaches taken in different jurisdictions in order to tackle the problems and reveals advantages and weaknesses.
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Regulation of Distance Selling Methods
(Te Herenga Waka—Victoria University of Wellington, 2012) Erfurth, Julian
The ways in which traders are selling and distributing their goods on the market have undergone significant changes over the recent decades. The traditional way of shopping in store is more and more replaced by purchases conducted via modern forms of distance communication, following offers on teleshopping programs or in web shops online. While those sales methods are widely appreciated as they entail a number of benefits for both suppliers and consumers, they also give rise to serious concerns, particularly rooted in the lack of physical contact between the parties involved and the buyer’s inability to examine the goods prior to purchase. Although providing for a considerable level of consumer protection in general, New Zealand legislation has yet to react on the specific demands of distance sales in this respect. In order to shield consumers from potential drawbacks, enactment of comprehensive statutory provisions, addressing particular concerns, needs to be considered. Presenting the European Union’s regulations on distance selling as an example how problems related to consumer protection in distance contracts can be addressed successfully, this paper argues for an adoption of similar provision in New Zealand so as to further promote protection of consumers in the modern market place.