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Objective arbitrability in International Commercial Arbitration
Svatoš, Martin ; Pauknerová, Monika (advisor) ; Dobiáš, Petr (referee)
Objective arbitrability in International Commercial Arbitration Martin Svatoš Abstract: The objective of this paper is to explain the issue of objective arbitrability of disputes in an international commercial arbitration. The approach of objective arbitrability argues what kind of disputes could be an object for an international arbitration. This paper is focused on comparing the Czech and the foreign approach. The paper consists of two main chapters, each of them dealing with different aspects of arbitrability. Chapter One is introductory and defines basic terminology used in the thesis: especially the definition of arbitrability, the distinction between subjective and objective arbitrability. The question of choosing of law is mentioned, too. It outlines the main coincidences of objective arbitrability with public order and examines relevant Czech and other legislations, especially the Austrian, the German, the French or US approach. Finally, it provides an outline of relevant international conventions. Chapter Two deals with the objective arbitrability in some special law fields. It is focused on Intellectual property law, antitrust and competition law, insolvency law, on the intra-corporate disputes, on the franchisee contacts and finally on bribery and corruption. Conclusions are made in last chapter....
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Procedural aspects of mediation in EC law
Rivera, Eva ; Tomášek, Michal (advisor) ; Pauknerová, Monika (referee) ; Zavadilová, Marta (referee)
Procedural aspects of mediation in EC law Eva Rivera, 2011 1 Abstract The objective of this dissertation is the determination of the significance of procedural aspects of mediation and the answer to the question to what extent it has been considered within European Union law. The research is based on the assumption that the acknowledgment of a procedural relevance of mediation is crucial for its overall effectiveness. Mediation is besides its feature as a communication technique becoming ever more important as a dispute resolution procedure for civil and commercial conflicts in Europe. In this context the role of mediation within and in relation to other procedures for the resolution of disputes has to be considered. While on one hand the terminology and the differences between mediation and other forms of Alternative Dispute Resolution (ADR) as well as certain judicial attempts of settling disputes may not always be easily determined, on the other hand, it can be stated that the ADR form of mediation is beyond its early stages and clearly shows its own procedural relevance. The comparison of European national jurisdictions in the field of mediation leads to a core definition of mediation as a voluntary process where a third person without the authority to pass a binding decision over the dispute between...
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Party autonomy in the Rome I Regulation and its limitations
Šarochová, Lucie ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
The thesis from the area of contractual obligations within the European private international law and its topic: "Party autonomy in the Rome I Regulation and its limitations" is divided into several parts. In the introduction it deals with and tries to explain to readers a historical development of the party autonomy principle that it has gone through. The thesis deals with the pillars on which this principle of party autonomy in the European private international law stands. Thus, legal certainty, freedom, predictability in contractual obligations and equal position of parties. Last but not least it is an international element. From 17 December 2009 a Regulation of the European Parliament and Council Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) (hereinafter referred to as the "Rome I Regulation")) came into effect. The thesis provides a comprehensive insight into the evolution of Rome I Regulation. The purpose of the thesis is an analysis of the party autonomy in its regime. The work seeks to confirm or disprove the following: "The principle of party autonomy within the area of contractual obligations still remains the cornstone of the Rome I Regulation, we cannot speak of it as unlimited though" The thesis also deals with the choice of law...
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State Aid in the international law
Traurig, Vojtěch Pavel ; Pauknerová, Monika (advisor) ; Poláček, Bohumil (referee) ; Dolanská Bányaiová, Lucie (referee)
State aid law is one of the most important categories of the competition law in the European Union. The state as such has an unprecedented advantage compared to other competitors: the state disposes of a huge amount of funds which could be easily distributed in favor of the privileged undertakings. The risk of the distorting effect on competition is high; thus, strict rules are necessary. The thesis is divided into five parts: introduction, the part focusing on international treaties, the general part, specific provisions and the conclusion. Part two of this thesis deals with the respective international treaties relevant for the aid schemes. There are three groups of such international treaties: the Agreement on Subsidies and Countervailing Measures adopted in the WTO system, the anti-aid measures in the European Economic Area and the anti- subsidies mechanism towards the third countries (i.e. non-members of EEA or WTO). This part describes these three mechanisms and their common principles. Part three of the thesis is dedicated to the general provision. Section 3.1 deals with the term "state aid", describes the main criteria for qualification of the aid as a state aid incompatible with the internal market. I also focused on two judgments of the Tribunal which I considered important for the used...
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European Private International Law - Domicile and Brussels I Regulation
Řápková, Lucie ; Pauknerová, Monika (advisor) ; Kučera, Zdeněk (referee)
European Private International Law - Domicile and Brussels I Regulation Abstract It is undisputable, that the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the so-called Brussels I Regulation, constitutes the cornerstone of the European Private International Law. The term domicile, employed as the most important connecting factor for the determination of jurisdiction under the Brussels I Regulation, is the key word thereof. Domicile as such is a very interesting, although complicated, legal concept. This holds true even in the case of domicile for the purposes of Brussels I Regulation. At the European level, the tradition of domicile, being the connecting factor in most cases of the determination of jurisdiction, was established by the Brussels Convention. Nevertheless, it did not provide for a uniform definition. Instead, it referred to the national laws of the then contracting states. By adopting, with an exception, a uniform definition of a legal person's domicile, the Brussels I Regulation has partially deviated from this practice. However, as regards the natural person's domicile, the reference to the national laws of the European Union Member States was upheld. As the understanding of this concept differs from...
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Non-contractual obligations in private international law
Holubová, Kateřina ; Pauknerová, Monika (advisor) ; Dobiáš, Petr (referee)
Non-Contractual Obligations in Private International Law This thesis deals with non-contractual obligations in private international law. The most important law in this area is the Rome II Regulation on the law applicable to non-contractual obligations that applies since 11 January 2009. The Regulation creates a common regime of conflict of law rules for most civil and commercial non-contractual obligations. The general rule is the law of the place of injury (lex loci damni). The rule is subject to two exceptions, the common habitual residence exception and a general escape clause based on the closer connection principle. Special rules are laid down for some non-contractual obligations, such as product liability, unfair competition and acts restricting free competition, environmental damages, infringement of intellectual property rights, unjust enrichment, negotiorum gestio and culpa in contrahendo. However, in most cases, the parties may agree on the law applicable to the non- contractual obligations between them. Post-tort agreements may be made between all parties whereas pre-tort agreements are allowed only where all the parties are pursuing commercial activity. Where the Rome II Regulation does not apply the courts will look to the relevant national legislation, which is the Private...
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Private international law in a comparative perspective: the determination of governing law for non-contractual relations in the law of the CR and the USA
Kadlecová, Kristýna ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
1 English Summary The aim of this thesis is to compare the determination of law applicable to non- contractual obligations in the Czech Republic and the United States of America. In the beginning I provide a brief overview of the international private law in general and then the substantial law of torts in both Czech Republic and the USA and the prospective changes in the new Civil Code which should be applicapble from 2014. The fifth chapter concerns with the law applicable to non-contractual obligations in the Czech Republic. In the first place there is a statute (Private International Law Act), but the majority of its provisions were overruled by the Rome II regulation, which unifies the privite international law of the EU states. According to the regulation, general rule for the law applicable to non-contractual obligation arising out of torts is lex loci delicti (the law of the country in which the dammage occurs). Rome II then provides special rules for product liability, unfair competition, environmental dammage, etc. In the Czech Republic the regulation does not apply to traffic accidents because the Czech Republic is a contracting state to Hague Convention on the Law Applicable to Traffic Accidents. The sixth chapter focuses on the law applicable to torts in the USA. The first subchapter deals with...
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Companies in Private International Law
Lörincová, Radka ; Pauknerová, Monika (advisor) ; Kučera, Zdeněk (referee)
- Companies in Private International Law The purpose of this diploma thesis is to examine regulation of companies in private international law in the Czech Republic and also from the European Union law perspective. The thesis is divided into four main chapters. First chapter provides a brief definition of the basic legal concepts that are central to this thesis - definition of a company and definition of a private international law. Second chapter explains the concept of lex personalis and two opposing conflict of law theories, which link companies to a certain system of law; the incorporation theory and the real seat theory. Third chapter focuses on the relevant Czech legislation, especially on the Czech Commercial Code, which contains provisions on determining lex personalis of a company as well as rules on cross-border transfer of seat of a company. Forthcoming re-codification of private law in Czech Republic is also discussed with regard to the regulation of companies in private international law. Fourth, the most extensive chapter of this thesis describes and analyzes the European Union law relating to the freedom of establishment of companies. First, the very concept of freedom of establishment is explained with references to primary EU law. Subsequently, six landmark decisions of the Court...
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Standardized forms of concluding contracts in international trade
Trojanová, Kamila ; Pauknerová, Monika (advisor) ; Dobiáš, Petr (referee)
Resumé: Standardized forms of concluding contracts in international trade The contemporary international trade is defined by the standardized approach to commercial transactions. The purpose of my thesis is to analyse legal issues concerning contract formation by means of standardized legal forms in international trade. Chapter One describes the development of standardization in international trade. It introduces and defines basic terminology covering standardized forms of contract formation: standard terms, standard clauses, boilerplate terms, form and model contracts and legal manuals. Chapter Two addresses the process of contract formation under the United Nations Convention on Contracts for International Sale of Goods (CISG) in comparison with the regulation in the Principles of European Contract Law (PECL), Principles of International Commercial Contracts (UNIDROIT Principles, UPICC), Draft Common Frame of Reference (DCFR) and the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law (CESL). The emphasis is placed on the incorporation of standard terms into a contract, i.e. into an offer or an acceptance. It is followed by an analysis of the battle of forms and its possible solutions including last shot rule, first shot rule, knock-out rule and...
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