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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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The Future of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Drienová, Michaela ; Pauknerová, Monika (advisor) ; Dobiáš, Petr (referee)
The main aim of this thesis was to discuss whether the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) is satisfactory and whether it can still fulfil the needs of modern business practises, or if it needs reform. The discussion whether the NYC is or is not in need of reform was carried out though examples of decided cases. This paper does not doubt the importance of the NYC, it appreciates that it is one of the most effective and successful treaties ever created in the entire history of commercial arbitration, if not in the whole field of rule of law. It had accomplished its goals in simplifying the whole process of enforcing foreign awards but, as the discussion in this paper suggests, NYC is not satisfying the business needs anymore. This is mainly due to the vague interpretation of various provisions within the NYC, which are not specifically addressed as to their meaning. The paper focuses on three articles, namely Article I, II and V, as those ones are the most troublesome. Those three articles provide the biggest lacuna and possibilities for interpreting judges' discretions of what they feel should be the meaning of certain NYC provisions. The discussion in this paper further shows that municipal courts are interpreting the NYC as they think best fits the facts...
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Corporate Mobility within the European Union
Laurincová, Lucia ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
This thesis deals with the mobility of companies within the European Union and the actual scope of freedom of establishment. The aim of this thesis is to analyze the possibilities of conducting business with cross-border element taking into account the developments in this area with a special focus on options to transfer the seat in the light of the milestone judgments of the Court of Justice. European law also offers an opportunity for conducting business using European entities, which shall reflect the needs of cross-border activities. The present state is moreover evaluated with respect to the currently proposed legislation.
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The Rome Convention and Rome I Regulation on the Law Applicable to Contractual Obligations
Aubrechtová, Karolina ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
Rome Convention and Rome I Regulation on the law applicable to contractual obligations The purpose of my thesis is to analyse some main aspects of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (the Regulation) especially with regard to the Rome Convention on the law applicable to contractual obligations from 1980 (the Convention) and to provide an overview of changes compared to the Convention. The Convention was published in the Collection of the International Treaties as notification No 64/2006 Sb. m. s. and it applies to contracts concluded after 1 July 2006. The Regulation oblige the courts of all EU Member States except Denmark to determine the applicable law for contracts with an international element entered into on or after 17 December 2009 according to the Regulation's provisions. Where neither the Convention nor the Regulation applies, the Czech courts will generally look to the relevant national law, Act No 97/1963 Sb. on Private International and Procedural Law as amended. From 1 January 2014 would be applied its superseder Act No 91/2012 Sb. on Private International Law. The thesis is composed of ten chapters, each of them dealing with different aspects of choice of law rules applicable to contractual...
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European international law - selected issues
Ondrušová, Miroslava ; Pauknerová, Monika (advisor) ; Kučera, Zdeněk (referee)
1 ABSTRACT European international law - selected issues The subject of this thesis is an analysis of a new procedural measure of European law - European order for payment (hereinafter as "EOP") and exploration of its application in practice from the perspective of the Czech plaintiff and Czech court. I have chosen this topic because of my own experience concerning cross-border debt recovery through the EOP. In this context, I decided to find out how this legal measure works in practice with regard to its purpose of providing a simplified, accelerated and cost effective procedure for the recovery of uncontested pecuniary civil and commercial claims in cross-border cases. In the final part of the thesis, I made the conclusion that the Council Regulation 1896/2006 of 12 December 2006, in creating a European order for payment procedure, (hereinafter as "REOP") meets its objectives and its implementation is a valuable asset to the creditors against non paying debtors. The thesis is divided into 3 parts. The first part is as an introduction to European private international law containing five chapters. The first and second chapters explain the concepts of private international law and European private international law. The third chapter deals with their mutual relationship. The fourth chapter describes the...
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Companies in Private International Law with a Special Focus on the Relocation of the Seat of a Company within the European Union
Čuboňová, Jitka ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
The purpose of my thesis is to analyse the current legal situation, both from the Czech and European legislation point of view, concerning the transfer of the seat of a company within the area of the European Union. As evident from the title, the paper focuses on the topic from the European perspective primarily and the issue of the relocation of the seat from, or into, a non-member state is not dealt with in details. The thesis consists of four chapters. The first one introduces a necessary terminology connected with the relocation of the company's seat. Firstly the terms "personal status" on the one hand and "nationality" of the company on the other hand are compared. Then the incorporation theory and the real seat theory are briefly outlined, as well as the conflict that may arise between these doctrines. The second chapter relates to the relevant Czech legislation in this matter which is currently in force. The chapter is divided into three subchapters. The first one concerns the analysis of the important topic related paragraphs of the International Private Substantive and Procedural Law Act, the second one aims at interpreting the substantial provisions of the Commercial Code, finally the Conversion of the Companies and Cooperatives Act is reviewed with the special focus on the recent...
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Contractual and Non-contractual Obligations in International Private Law
Lesňáková, Katarína ; Pauknerová, Monika (advisor) ; Dobiáš, Petr (referee)
In this paper we examine contractual and non-contractual obligations in situations involving a conflict of law. The special emphasis is given to overriding mandatory rules, the importance and impacts of these rules of law on civil and commercial relations with international element. This thesis is composed of four parts and each of them is subdivided into further sections and paragraphs. In the first part, we introduce the general theory as theoretical base of the subject and we define the key terms. The question concerning the role of Czech courts in the application of foreign law is also mentioned. Subsequently, we analyze national Czech legislation and we focus on the relevant provisions contained in the draft of new Private International Law Act. By becoming Member State of the European Union in 2004, Czech Republic undertook to accede to the 1980 Rome Convention on the law applicable to contractual obligations. Second chapter is dedicated to this international treaty which has clarified the concept of "mandatory rules" but has also given rise to some qualification problems. We discuss the relationship between overriding mandatory rules and protective mandatory rules (particularly rules of consumer and labour law) and present the main approaches to this problem. Rome I and Rome II regulations...
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Legal Regulation of International Arbitration Procedure in the Czech Republic and Argentina
Milerová, Sylvie ; Pauknerová, Monika (advisor) ; Růžička, Květoslav (referee)
Legal Regulation of International Arbitration Procedure in the Czech Republic and Argentina The purpose of my thesis is to describe the legal regulations of international arbitration in the Czech Republic and Argentina, find the differences between them and draw appropriate conclusions. The thesis begins with an introduction, where I outline the reasons why I chose this topic, the method used and the outcome that I plan to reach. Following the introduction, the thesis is divided into six chapters. The first chapter provides the reader with a general overview of basic concepts of arbitration. The chapter begins with an attempt to define what arbitration is by putting it in a historical context and then placing it within (or beyond) the scope of alternative dispute resolution. Next, the four main theoretical concepts, which are crucial for the understanding of arbitration, are outlined. The last part of the chapter contains the advantages and disadvantages of arbitration, which explain the popularity of (international) arbitration. The next chapter deals with the legal regulation of international arbitration in the Czech Republic. It opens with a brief description of development of arbitration throughout Czech history and then is divided into sub-chapters dealing with specific elements of...
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