Tuesday, July 20, 2010
Harry W. Arthurs (York - Osgoode Hall) has just posted on SSRN his article (forthcoming Stanford Law & Policy Review) Extraterritoriality by Other Means: How Labor Law Sneaks Across Borders, Conquers Minds, and Controls Workplaces Abroad. Here's the abstract:
This Article challenges the state-centered description of labor law and impoverished view of extraterritoriality. It suggests that transnational flows of technology and capital, goods and services, and ideas and information have brought in their wake changes in political economy and social relations that have transformed regimes of public and workplace governance in all countries. It proposes that the extraterritoriality doctrine operates, if at all, only in the formal sense of not allowing one state to overtly project its law into the territory of another. But extraterritoriality does little to prevent the rules governing employment relations in one country from taking root elsewhere, from shaping foreign labor market norms, institutions, and practices, and from being reproduced, in their original or mutant forms, in foreign systems of labor law. The result is the extraterritorial projection “by other means” of labor law and policy - a form of extraterritoriality that has the potential to enhance as well as undermine labor standards in global enterprises.
I think Harry is absolutely right. The globalization of commerce and of legal ideas enables countries to "shop" in a global marketplace for the best labor/employment laws and policies. On the other hand, it also facilitates a race to the bottom.