Legal Concerns Across Multiple Jurisdictions

Sometimes an organization may be in a situation where the laws of more than one jurisdiction may apply or do apply. Cross-border issues are complex, and sometimes the law of different jurisdictions creates contradictions. Questions may arise in the following areas as well as others.

Many cross-border issues apply in international human resources situations. For example, employment contracts typically are more valued in other countries than they are in the U.S. Consider carefully whether or not the employer should offer a contract—it may even be required. A contract is often a good way to protect the rights of both employer and employee. It may also be possible to define the choice of law—what law will apply in case of a dispute (but be aware that some countries do not permit waiver of certain rights). Local counsel may be needed to spot particular issues in contracts, or in the many other employment issues that may vary from country to country, such as union rights, vacation time, and so on.

Another area is secondment or other cooperative agreements between organizations (affiliated or unaffiliated). The responsibilities of the different parties should be carefully defined, taking into account possible joint employer liability. Insurance policies should also carefully follow the responsibilities of the organization that have been defined.

In all contracts that involve potential multijurisdictional problems, the choice of law and the jurisdiction should be specified where possible. If a dispute arises, defining ahead of time whose law will apply and where disputes may be handled is very helpful. For instance, you could apply the law of one country in the courts of another. If you do not define the law and jurisdiction that apply, expensive litigation could arise just to resolve the choice of law and jurisdiction.

A somewhat related issue is whether you include a mandatory conciliation clause in your contracts. Christian organizations may want to require that disputes be handled through Christian conciliation—mediation or arbitration. The parties can agree contractually not to engage in litigation. (Employment law may create possible exceptions to mandatory conciliation—and religious principles may create possible exceptions to the exception.)

Data protection is another sensitive area where the company is subject to the law of more than one jurisdiction. The most practical way of handling this problem (though not necessarily simple) is to gear policies to the most restrictive data protection laws that apply to the organization.

Reporting crimes such as child abuse is often a multijurisdictional issue. Reports may be made in the jurisdiction local to the incident, in the jurisdiction of the organization, or the jurisdiction of the mission. Some reports may be mandatory. Many may be advisable whether or not they are mandatory. Some reports could pose difficulties or even endanger people. A careful analysis of child safety and other concerns will be required.

Start approaching situations with the perspective that the law of more than one jurisdiction may apply, and consider how the organization should address those issues, possibly with the assistance of legal counsel.