Browsing by Author "Jonas, Martin"

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Good Faith in the Employment Eelationship: a Comparison between Common Law and Civil Law Countries
(Te Herenga Waka—Victoria University of Wellington, 2011) Jonas, Martin
The paper analyses the extent to which several common law and civil law countries recognise and operate good faith in the individual employment relationship. This entails a comparative analysis of the ideas, origins, developments and scope of good faith in the US, the UK, New Zealand, Germany and France. On the civil law side, Germany and France demonstrate that good faith is all-pervasive and operates at all stages of the employment relationship. On the contrary, good faith is almost absent in US employment law and attenu-ated in the UK. Good faith fragmentarily applies to the stages of the employment relationship in these com-mon law countries. However, New Zealand has introduced statutory good faith obligations in 2000, which apply to all aspects of the employment environment and of the employment relationship. In this regard, the other common law countries could learn something from New Zealand. The conventional wisdom that civil law countries rely more on legislation and that common law countries rely more on markets and contracts is challenged. However, although the supposed differences begin to blur, good faith is more entrenched in the civil law countries. Given the structural imbalance be-tween employer and employee, good faith is much more important in terms of employee protection, although the underlying concept of good faith is mutuality. The civil law approach is preferable in terms of employee protection since good faith provides an underlying safety net.
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Investor Responsibility for Human Rights: the Impact of Ruggie's Guiding Principles on International Investiment Law
(Te Herenga Waka—Victoria University of Wellington, 2011) Jonas, Martin
The paper examines the impact of Ruggie´s “Protect, Respect and Remedy” framework on international investment law in terms of investor responsibility. The approach is two-fold. First, it is argued that the framework should be the guiding principles for a multilateral investment agreement, which balances investor rights and responsibilities more adequately with regard to human rights. Second, notwithstanding the absence of such a universal agreement, Ruggie´s framework has implications on the current international investment setting. Several decisions indicate that arbitral tribunals increasingly take investor obligations into account. Although human rights have played a peripheral role in international investment arbitration, tribunals cannot ignore international human rights law per se. Given the corporate responsibility to “respect” human rights, tribunals could take Ruggie´s framework into account. In an addendum to his framework, Ruggie also provides specific guidance for negotiators of state-investor contracts. The paper tries to accommodate these ten principles for responsible negotiators within international investment arbitration.
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Who Is a Consumer?
(Te Herenga Waka—Victoria University of Wellington, 2011) Jonas, Martin
The paper examines the justifications for consumer laws and focuses on what constitutes a consumer. Several approaches to defining consumers are considered and it appears that each of them contains weaknesses. From this analysis it is suggested that New Zealand courts and tribunals should apply a multi-factor approach with additional guidelines to correct unjustified outcomes of the test in s 2 Consumer Guarantees Act 1993. Then, the consumer definition in s 2 is further examined and criticised. The current scope of protection under the Act is not broad enough and it should be reformed. Also, it is advocated that the consumer definition in s 2 should be harmonised with other consumer laws. It is further concluded that small businesses should not be protected by consumer laws. However, founders of new businesses who enter into a loan contract still appear to be worthy of consumer protection and should thus be protected.