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Arbitration and mediation in international commercial disputes
Hanajová, Tereza ; Brodec, Jan (advisor) ; Růžička, Květoslav (referee)
Arbitration and mediation belong to the popular methods used for the international commercial disputes. In the diploma thesis, the author mainly describes the combinations of the processes, focusing on the med-arb with one neutral. Med-arb is considered by the academics to be a controversial method. Since the topic is examined in the context of international commercial disputes, the author analyses not only the Czech law but also foreign jurisdiction and rules of the international organisations. She also refers to recently published researches, such as the International Arbitration Survey 2018 safeguarded by Queen Mary University or the reports of the Herbert Smith Freehills, Pricewaterhouse Coopers and International Mediation Institute. In the first chapters of the thesis, the author describes the individual ADR methods and their combination. The second and third chapter focuses on positives and negatives connected with the method. The effectivity of the process, flexibility, possible loss of impartiality of med- arbiter and conflict of interest are discussed. Following this information, the author presents in the fourth chapter how to work with med-arb in order to eliminate the negative aspects. She gives the attention to the demands on the mediator and arbitrator which the med-arbitrator has to...
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Variations and other changes to public contracts under FIDIC standard forms
Müller, Petr ; Klee, Lukáš (advisor) ; Brodec, Jan (referee)
Variations and other changes to public contracts under FIDIC standard forms Abstract This thesis deals with variations and other change institutes according to the FIDIC Red Book (hereinafter referred to as "CONS") enforced under the Act No. 134/2016 Coll., On Public Procurement, as amended. The main aim of this thesis is to analyze the possibility to effectively implement complex construction projects in the Czech legal environment, especially with regard to the fact that individual complex construction projects deal with, in their implementation phase, the necessity to change the work, the price for the work, but also the time of completion and handover of a work due to unforeseeable or unforeseen circumstances. The law of public procurement, with reference to the principles of free competition and, in order to ensure the effectiveness of the management of public funds, limits the possibility of the public contract modifications by means of the doctrine of the substantial and non-substantial modification. Large construction projects often exceed the estimated value of the public contract by more than 100 %, which puts a great deal of pressure on the correct and lawful subsumption of changes under the legal grounds of modifications of the contract according to section 222 of the Act on Public Procurement....
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Companies in private international law
Lembas, Jan ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
The objective of this thesis is to analyze legal framework of companies in private international law with focus on cross-border mobility of companies in the EU. The work consists of an introduction, five chapters and a conclusion. In the first chapter, the basic terminology used in the work and terms of private international law, collision standards, legal entities (persons) and companies are presented and defined. The second chapter is devoted to the personal statute of company and analyzes main theories of determining a personal statute - the incorporation theory and the real seat theory, their advantages and disadvantages are discussed and their comparison is mentioned at the end of the chapter. Incorporation theory enables cross-border transfer of company seats and defines law applicable to company forever, real seat theory has a protective function. Whereas incorporation theory uses the foundation of a company to determine applicable law, real seat theory uses the real seat of a company, the actual place where the company centers its activity. The third chapter discusses the subject from the point of view of the EU law. The freedom of establishment as legal basis for the movement of companies within EU is analyzed as well as basic articles of primary law regarding right of establishment....
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Compensation for damage arising from breach of competition law from the perspective of private international law
Línek, David ; Černá, Stanislava (advisor) ; Brodec, Jan (referee)
1 Abstract The thesis deals with the topic of damages claims arising from breach of competition law. In particular, it focuses on the cases in which is involved a relevant international element. The thesis reflect the thought that even after adoption of Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, there are still significant differences between the legal systems of the Member States, which to a large extent affect the compensation for damages. The thesis is divided into six chapters, the first and last of which are general introduction and conclusion. The second chapter deals with the definition of private enforcement of competition law and its relation to private international law. The third chapter can be divided into two relatively separate parts. The first one deals with the general construction of damages in the Czech Civil Code and performs a basic comparison with the Germany and England. The second part deals with selected specific areas of competition law. In particular, with the topics such as: who is eligible to bring an action; who can be considered as liable; or the basic procedural specificities (the distinction between stand alone and follow-on actions, the...
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Liability of carrier in international carriage of goods with respect to road carriage
Pravda, Jan ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
Liability of the carrier in international carriage of goods with respect to road carriage Abstract The content of this thesis is carrier's liability in international carriage of goods focused on carriage of goods by road, which is one of the crucial branches of carriage for landlocked states. The introducing part explains basic terms which are common in international carriage, defines subjects participating in the carriage and its possible plurality. Moreover, the thesis presents individual types of carriage and a specific chapter is dedicated to cabotage. The second part of the thesis describes both international and national legislation of carriage contract. This part includes the relation between these two from the private international law point of view. Different types of contracts are also mentioned as another possibility of carriage. Common interpretation is enclosed in the third part with issues of liability from legal doctrine perspective. This part also analyses particular presumptions in generating of liability and differences among strict liability and liability for fault. The liability of the carrier as a main point of this thesis is expanded in the adjacent passage. Fundamental types of carrier's liability for loss or damage of goods as well as for any delay in delivery are found in the fourth...
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Recognition and Enforcement of foreign arbitral awards in the Czech Republic and in the United States of America
Braborec, Jan ; Pfeiffer, Magdalena (advisor) ; Brodec, Jan (referee)
Recognition and Enforcement of foreign arbitral awards in the Czech Republic and in the United States of America Abstract This rigorous thesis deals with the topic of recognition and enforcement of foreign arbitral awards, and the issues are illustrated by the legal regulations of the Czech Republic and the United States of America. The aim of the thesis is to clarify the issue of recognition and enforcement of foreign arbitral awards in both countries, to define their legal regulations and to point out their common and different features in the field of grounds for refusal to recognize and enforce foreign arbitral awards and in the process of such recognition. Apart from the introduction and the conclusion, the present rigorous thesis is divided into five separate chapters. The first chapter deals with the definition of arbitration in the ADR system and points out the advantages and disadvantages of the arbitration as compared to the proceedings at state courts. The author defines the concept of an arbitral award or a foreign arbitral award within all the relevant regulations in the next part. The second chapter deals with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The author discusses the individual provisions of the Convention, taking into account their substantive...
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Damages under the United Nations Convention on Contracts for the International Sale of Goods
Marková, Veronika ; Pfeiffer, Magdalena (advisor) ; Brodec, Jan (referee)
The subject of the rigorosum thesis is damages under the United Nations Convention on Contracts for the International Sale of Goods (hereinafter the "CISG"). The CISG can be described as one of the most important and most widely used legislative instruments providing a unified framework for contracts for the international sale of goods. The aim of this thesis is to make a critical analysis of the provisions concerning the right to damages, to confront misleading provisions and to clarify issues not expressly dealt with by the CISG in order to provide a comprehensive overview of the right to damages under the CISG, taking into account its core values and principles. The significance of the CISG in the business world and the purpose of the right to damages are introduced in the first part of the thesis. The CISG is fundamentally influenced by the UNIDROIT Principles1 and PECL2 , which help to interpret vague languages found in the provision and to supplement and to clarify the provisions of the to the CISG. The crucial goal of the right to damages, which is to place the aggrieved party in the same position it would have been in economically if the contract had been performed, is embodied in the principle of full compensation. The goal of the subsequent chapter is to describe all requirements for...
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Air carriers' liability for the carriage of passengers in the light of European and Private International Law
Benda, Matěj ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
Air carriers' liability for the carriage of passengers in the light of European and Private International Law The object of this rigorosa is air carriers' liability for the carriage of passengers, which is by its nature governed mainly by international treaties and secondary law of the European Union. The rigorosa is divided into six parts, which are focused on all aspects of air carriage. The first part informs about the historical development of aviation and its contemporary importance especially with regard to its impact on environment and economical situation. Basic concepts which are used by the author throughout the whole rigorosa and can be found by readers are not omitted as well. The second part focuses on the regulation of international air carriage from the perspective of International law, European law and Czech domestic law. As mentioned in this rigorosa, the carrier's liability when the loss event that is expected by legislators happens is governed mainly by international treaties and secondary law of the European Union, that is why the third part is focused on its most important legal sources and its possible development. Since it is necessary to complexly inform passengers about their rights, the author decided to do so in the fourth part of this rigorosa, which deals with the...
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Companies in private international law
Džoldoševa, Seda ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
This thesis attempts to summarise and analyse a legal treatment of companies in international private law. An important term used throughout the thesis is "personal statute of a legal person". Personal statute of a legal person is an institution that decides whether the organised entity has its own legal presence and which legal system governs its relations. We use two basic theories for determination of a personal statute of a legal person, the incorporation theory and the real seat theory. The incorporation theory is based on an idea that the personal statute of a legal person is a legal system the company is founded in. The real seat theory is related to the problematic idea of an actual residence, a place where the company actually conducts its business, where its management resides or where it is in fact controlled from. Since the consensus in determination of a private statute was not agreed upon, each state uses a different principle. Whilst the incorporation theory in its consequence supports the advancement of trade and is more flexible towards the companies, the real seat theory offers more legal certainties. The so called Delaware effect is considered to be a main weakness of an incorporation theory, which is a situation when the companies are based in states with favourable legislature,...
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Arbitration According Rules of the International Chamber of Commerce in Paris (ICC)
Žilinčíková, Ivana ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
Arbitration as an out-of-court form of business dispute resolution is becoming increasingly popular. One of the most important institutionalized arbitration on international level, is arbitration according the Rules of the International Chamber of Commerce located in Paris. One reason for choosing this type of arbitration is in particular the international importance and the authority that the International Chamber of Commerce and its affiliated institutions, in particular the ICC Court, have in the international trade area. I consider this type of arbitration to be one of the most appropriate forms of proceeding in international business disputes, what also confirms the history of its development, the benefits it provides by its principles and the authority that the arbitrators obtain. The process of adaptability of the proceeding and the highly skilled arbitrators provide a great ground for the smooth running of the whole process. The basic principles of this type of arbitration are the autonomy of the parties will, the principle of equality of parties, non-publicity, discretion, speed and economy. That 's why the greatest pressure is placed on arbitral tribunal members who, in addition to respecting the Rules ICC, must also strongly respect the imperative regulations and public order of the...
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