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Arbitration in the Czech Republic
Siška, Ondřej ; Smolík, Petr (advisor) ; Winterová, Alena (referee)
The theme of this thesis is the institute of arbitration in the Czech Republic. Arbitration is an institute enabling resolution of property disputes before an independent third. The result of an arbitration is publication of binding and enforceable arbitration award. Arbitration is a type of sui generis proceeding, meaning it differs both from the general court proceedings, as well as from other ADR methods. In this work I was mainly focused on a comprehensive analysis of Act no. 216/1994 Coll., on arbitration proceedings and enforcement of arbitral awards, in conjunction with the study of literature and case law. The thesis is divided into 9 chapters, which are further divided into subchapters. The thesis is further bounded by introduction and conclusion. The first chapter deals with the definition of arbitration and furthermore here we can find the characteristics, advantages and disadvantages, and explanations of theoretical concepts of arbitration. The second chapter focuses on the question of arbitrability of individual disputes. The third chapter examines in detail the process of conclusion of the arbitration agreement, including a description of requirements and division of arbitration agreements according to their nature. The fourth chapter deals with the figure of the arbitrator, the...
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Refusal to recognize and enforce arbitral award under Article V, paragraph 2 (b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958
Sojka, Štěpán ; Horáček, Vít (advisor) ; Růžička, Květoslav (referee)
(ENG) Refusal to recognize and enforce arbitral award under Article V, paragraph 2 (b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 Public policy exception is a deeply rooted instrument used in international documents governing the recognition and enforcement of foreign dispute resolution decisions. It was included in the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958 since its very first draft, which actually aimed to reform the system of recognition and enforcement of foreign arbitral awards at the time governed by Geneva Protocol and Geneva Convention. Article V section 2 b) of the New York Convention which embodies the public policy exception is quite commonly described as the weakest and the most problematic part of the Convention. In the thesis at hand, the author analyses this provision and conducts a research to find out whether and why the provision is problematic in the practice of the courts. In the first part of the thesis, the author describes the legislative process of the scrutinized provision. In the second part, author describes and analyses interpretation and application difficulties of the scrutinized provision using mainly various court decisions rendered by the relevant states' courts. In the last...
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The UNCITRAL Model Law and arbitration in the Czech Republic
Drzková, Veronika ; Pauknerová, Monika (advisor) ; Pfeiffer, Magdalena (referee)
v angličtině: International commercial arbitration is a type of arbitration that is on the rise. It should be in the interest of every state to provide favourable conditions for holding an international commercial arbitration on its territory. It brings not only international recognition and improves competitiveness and; the holding of an arbitration on a territory of a given states also brings new financial resources. One of the ways how to provide favourable conditions is the adoption of the UNCITRAL Model Law. Above all, it brings legal certainty and easy orientation to foreign entities that are not familiar with national arbitration laws. The adoption of the UNCITRAL Model Law by the Czech Republic would be a step towards more favourable conditions for international commercial arbitration and would bring the aforementioned advantages.
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The role of the Third parties in International Commercial Arbitration
Šedivý, Martin ; Pauknerová, Monika (advisor) ; Růžička, Květoslav (referee)
The role of the Third parties in International Commercial Arbitration This thesis precisely define the concept of third parties in the field of International Commercial Arbitration as well as the definition of the term itself. According to the author of this thesis, third parties are the key for the process of transformation of the contractual approach in an International Commercial Arbitration in the reaction on the economic reality. This work is based on analyses of laws, comments, literature, academic articles, arbitration awards and case law. This text was created using experiences from an international commerce and transforms actual theoretical contractual approach of the International Commercial Arbitration. Contribution of this thesis lies in completion of knowledges from decision making process and creation of a brand new theoretical concept of International Commercial Arbitration and capture the shift in view of consent to arbitrate. This theory further reflects actual state of the decision making process and the needs of an International Commerce. Using this approach entitles author's theory for the practical use as a model for decision making process of arbitrators and for judges of national courts with regard to recognition and enforcement of the arbitral awards. Thesis is divided into...
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The Binding Effect of Arbitral Awards in International Investment Disputes
Jančová, Nicole ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
in English The Binding Effect of Arbitral Awards in International Investment Disputes The purpose of this thesis is to analyse binding effect an award has on parties to the dispute and most importantly on future tribunals. Further discussed is the de facto precedent and its development in international investment treaty arbitration. Theoretical research is supported by an empirical study of case law. The reason for my research is the existence of conflicting awards in international investment law which undermines legal certainty of investors and States. The thesis is divided into three parts. The first part is introductory and concerns with the general characteristics of international investment dispute. This part describes the system of bilateral treaties for the reciprocal encouragement of investment and the dispute mechanism in which investors are left with a choice before which body the dispute will be heard. The chapter then distinguishes two different perceptions of tribunals: the principal-agent relationship where tribunal acts only as an agent of parties to the dispute independent of other tribunals; and tribunal as an agent of parties and also agent of the whole investment community. The second chapter focuses on the binding nature of an award. It looks at the wording of ICSID Convention...
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Arbitration in the Czech Republic
Grivalská, Andrea ; Smolík, Petr (advisor) ; Winterová, Alena (referee)
Resumé The theme of this thesis is Arbitration in the Czech Republic. I focus on the current regulation contained in the Act No. 216/1994 Coll., on arbitration and enforcement of arbitral awards. Arbitration is one of alternative dispute resolutions for and for which is typical extrajudicial proceeding with exclusion of the judicial authority. However is the subject of this thesis extensive and not all aspect of arbitration can be embraced; my goal is to try to give a complete look into arbitrations, which has become more often used method of resolution of property disputes. This thesis is divided into twelve main chapters, which are then systematically subdivided. The first chapter of these theses will try to define a term, types and a concept of arbitration in the Czech Republic with regard to the theoretical (contractual, jurisdictional, mixed and autonomous) doctrines. The second main chapter is dedicated to arbitrational agreement. I try to recognize two basic types of it, arbitration clause which is closed in the cases of any disputes from legal relationship between parties arising in the future and post- dispute arbitration agreement, which is, on the other hand, closed about disputes which have already arisen. Then I focus on the fundamental terms of the arbitration agreement, form of arbitration...
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Institutional international commercial arbitration
Řezníček, David ; Růžička, Květoslav (advisor) ; Kunz, Oto (referee) ; Ondřej, Jan (referee)
The subject of this thesis is Institutional International Commercial Arbitration. This thesis describes the fields of arbitration in international trade, especially the status of arbitration in international trade, qualifications of the arbitrators, the arbitration clause and the course of international arbitration. They are included changes to the Arbitration Rules of the major international arbitral institutions. Further, this thesis concentrates on questions relating applicable law in international commercial arbitration, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention and the UNCITRAL Model Law on International Commercial Arbitration.
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Challenge of an Arbitrator in International Arbitration
Čech, Ondřej ; Balaš, Vladimír (advisor) ; Pauknerová, Monika (referee)
in English In the past several decades, arbitration has become very popular method of settlement of international business disputes. One of the key factors behind this success is the possibility to choose the arbitrator. Nevertheless, the right of a party to select an arbitrator is subject to limitations as it may clash with some basic legal maxims such as the right to a fair trial. The specific definition of the right to a fair trial varies from one jurisdiction to another, but its essentials remain the same. In the context of selection of arbitrators, the right to a fair trial manifests itself in a form of the principle that all arbitrators must be and remain independent and impartial. That means that a person deciding a dispute must not be influenced by matters outside of the proceedings which would result in a bias towards or against either of the parties. In order to achieve this, rules applicable to arbitration contain a pro cedure to remove an arbitrator who fails to meet these requirements from the tribunal. One of the types of bias which impairs impartiality of an arbitrator is the so-called "issue conflict." This term refers to a relationship between an arbitrator and the subject matter of a case with a potential to cause prejudgment on certain issues. Various authorities, however,...
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The New Lex Mercatoria
Vítek, Michal ; Dobiáš, Petr (advisor) ; Pauknerová, Monika (referee)
NLM Abstract The topic of lex mercatoria does not represent any new nor revolutionary concept for the legal science, on the contrary it is a concept present in the european legal thinking since the middle ages. Despite of that it still remains without a clear and comprehensible theoretical framework thus in a stage of some sort of a legal hypothesis. This rigorous thesis describes in its five chapters the topic of lex mercatoria - specifically its up to date form: New Lex Mercatoria - not as a concept but as an applicable law and within the extent of this thesis attempts to come up with both the reasons for such perspective as well as with those which oppose it. For this reason it answers the following basic questions: Does a clear concept of the New Lex Mercatoria exist? Does such law have the historical continuity? Does such law have any clear distinctivness when compared to the legal orders of national states? Which norms create such legal order and who and under which conditions does enforce them?
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The concept of investment in international agreements on the protection of investments
Seidl, David ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
The concept of investment in international agreements on the protection of investments Resumé This thesis analyses the notion of investment in the context of international investment law. The thesis is composed of six chapters. The first chapter provides an overview of the international investment law, including its sources, specific features and goals. The second chapter provides an economic definition of the notion of investment. The author distinguishes between foreign direct investment and foreign portfolio investment and analyses their commonalities and differences. The third chapter deals with the basic types of definition of investment contained in international agreements on promotion and protection of foreign investments. These are the asset-based definition and enterprise-based definition. The fourth chapter examines the interaction between the economical and legal definition of investment. The fifth chapter explores the concept of investment in the context of the ICSID Convention. The authors analysed the negotiating history of the treaty as well as the case law of ICSID tribunals. The author indentified two basic approaches to the interpretation of the notion of investment. Whereas the subjective approach leaves the definition of the term investment to the sources of consent (notably...
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