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From Samengo-Turner to Duarte: Jurisdiction and Applicable Law in the Context of Employment

25th September 2008

Samengo-Turner v. J&H Marsh and Duarte v. Black and Decker may have serious implications for the litigation of international employment conflicts, in particular those relating to restrictive covenants. This seminar responds to the call for their critical consideration and discussion, and for the contemplation of their implications.

Samengo-Turner concerns the question whether a right not to be sued derives from mandatory European jurisdiction rules protecting employees warranting - in case those rules are violated - an anti-suit injunction constraining proceedings in a non-EU state. The Court of Appeal granted an anti-suit injunction to restrain proceedings brought by 'employers' in New York on the basis of a supposed breach of employees' 'statutory right' derived from Community law (Art. 20(1) Regulation No 44/2001; the "Brussels I Regulation").

  • Should this decision be accepted as a precedent for future cases?
  • Does it have implications for other matters covered by section 5 of the Regulation (e.g. in matters relating to insurance - Art. 12(1) - or consumer contracts - Art. 16(2)), or even other rules of jurisdiction in Chapter II of the Regulation (e.g., the defendant's domicile - Art. 2)?
  • What are the wider implications of this decision in terms of our understanding of the nature and effect of the Brussels I Regulation?

Duarte involved the question of which law governs restrictive covenants, and featured interpretations of the terms of the Rome Convention 1980 including "contract of employment", "mandatory rules", "manifestly incompatible with the public policy". Field J interpreted broadly, "contract of employment" to include restrictive covenants; restrictively, "mandatory rules" to exclude English rules concerning the enforceability and validity of restrictive covenants in employment contracts; and, finally, extensively, "manifestly incompatible with the public policy" to cover situations where covenants in employment contracts are valid and enforceable under the proper law but invalid and unenforceable under English law.

  • Are these interpretations correct?
  • To what extent are they a guide for parties involved in future litigation?
  • How would the decision have varied if the employee had not been working in England under a contract of employment governed by English law?

Case study

In addition to a critical assessment of Samengo-Turner and Duarte, the seminar includes the discussion of an original case study exploring the practical implications of both decisions.


The seminar will allow ample time for discussion and will be followed by a reception. Solicitors and barristers may claim 2 CPD hours through attendance at this event.

If you would like to receive updates similar Institute events, please sign up to this website. Those with a particular interest in private international law are also encouraged to sign up to the Institute's Private International Law Discussion List.

This seminar is part of the British Institute's 2007-2008 Seminar Series on Private International Law, which is kindly sponsored by:

This series explores issues which are of topical importance for current legal practice and study in the field of Private International Law. If you have any queries relating to this event please contact Jacob van de Velden.


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