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Carrier's Liability in International Carriage of Goods
Machej, Jan ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
The purpose of this thesis was to analyse and compare isseu of carrier's liability in international carriage of goods. Thesis is devided in seven parts, which offers outline of carrier's liability in particular modes of carriage. First part deals with term contract for the carriage according civil code, parts of this contract as well as another contracts which aim is carriage. Furthermore deals with term liability and put outline of distinction among strict liability and liability for fault. Last subchapter of first part describes term carriage. Second part describes legal framework of contract for the international carriage of goods and specifies distinction among choice of law and direct method. Remaining parts refer to carrier's liability according international treaties concerned with particular modes of carriage, i. e. international carriage of goods by road, by rail, by air, by sea and by inland waterways. Bigger attention is dedicated to third part which deals with carrier's liability in international carriage of goods by road. Emphasis to this part is given, because international carriage of goods by road is the most frequently one - especially from Czech point of view. International carriage of goods by road is for sixty years ruled by CMR Convention which was amended only twice. This mode...
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Contractual obligations in private international law
Haasová, Tereza ; Pauknerová, Monika (advisor) ; Růžička, Květoslav (referee)
The objective of this Master's thesis is to analyze the rules of law governing contractual obligations in private international law. First, the relevant sources of law and their concrete application are examined through descriptive and analytical method. The thesis is then focusing on two specific phenomena that have significantly influenced the development of the field in the last few decades. The first one is a gradual process of unification taking place at the legislation level. The second one is called "new lex mercatoria" and represents a non-sate source of rules governing contractual obligations with a cross-border element. Both of the phenomena are analyzed from both theoretical and practical point of view. The thesis is divided in five chapters and the analysis progresses from a general to a more specific level. The first chapter focuses on the legal definitions indispensable for a more detailed analysis provided in the following chapters. In order to better contextualize the rules governing contractual relationships in the international private law, the second chapter is dedicated to its historical evolution. Moreover, the chapter introduces and compares methods regulating contractual relationships in the international private law, while acknowledging the specific circumstances of their creation....
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Selected legal issues of international passenger transport
Vosátková, Karolina ; Pauknerová, Monika (advisor) ; Pfeiffer, Magdalena (referee)
Selected legal issues of international passenger transport The topic of the diploma thesis is 'selected legal issues of international passenger transport'. The aim of the thesis is to analyse the issues of substantive law related to the liability of carriers and rights of passengers in the international rail, road and air transport. The thesis focuses on applicable legislation of liability of carriers and rights of passengers, but also deals with the legislation proposed pro futuro. The diploma thesis is divided into seven chapters, further divided into subchapters. In the introduction the thesis defines the term 'international passenger transport' and summarises its key legal sources. Further, it addresses the conflict of law rules applicable to the contract on international passenger transport. The core of the thesis is in the following chapters that deal with the direct substantive rules governing the liability of carriers and rights of passengers in individual types of transport, which are contained especially in multilateral international conventions and secondary legislation of the European Union. The conclusion of the thesis summarises and assesses the analysed legal issues in the researched legislation. The first, opening chapter contains the introduction to the topic of legislation related...
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International arbitration and the Brussels' jurisdictional regime
Macháčová, Paulína ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
in English The purpose of this master's thesis is to analyse the interfaces between international arbitration and litigation within the Brussels' jurisdictional regime. Arbitration has always been excluded from the scope of the Brussels' regime. However, the exact scope of this exclusion was always unclear and subject to long lasting debates and disputes. The consequences of determining whether a certain issue falls within the exclusion or not are far reaching and may seriously jeopardise the enforceability of an arbitration agreement and the effectiveness of arbitration in general. The main problem connected with the uncertainty regarding the actual scope of the arbitration exclusion, is the risk of parallel proceedings and conflicting judgements. Firstly, this thesis provides a general characteristic of alternative dispute resolution with focus on international arbitration and sources of its regulation. The overview of the history of the arbitration exclusion follows in order to create a foundation for the following analysis of the exclusion itself. The core part of the thesis aims to determine the scope of the arbitration exclusion, mainly through the analysis of the CJEU's case law and relevant literature. Special attention is paid to the judgements on validity of an arbitration agreement and...
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Extending arbitration clause on third parties in (international) commercial arbitration - selected issues in comparison of international arbitration practice and Czech law
Cienciala, René ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
CIENCIALA, R.: Extending arbitration clause on third parties in (international) commercial arbitration - selected issues in comparison of international arbitration practice and Czech law; doctoral thesis ABSTRACT The purpose of my doctoral thesis is to analyse in the context of the (international) commercial arbitration whether at all, and if so under what conditions can an arbitration agreement be extended on third parties as its non-signatories - i.e., parties who have actually not undersigned the said agreement. The thesis is based on a critical analysis thereof by evaluating the selected and relevant case-law, both judicial and arbitral, and the key legal jurisprudence in comparison of the international arbitration practice and Czech law. The thesis consists of nine main chapters. After the introduction of the subject-matter (first chapter), I focus on a fundamental basis thereof - i.e., the doctrine of separability of an arbitration agreement from the underlying contract (second chapter), followed by a thorough analysis of a selected theoretical conceptions concerning the extension of arbitration agreement on third parties (third to seventh chapter). Accordingly, I evaluate the following issues: a succession and assignment or other transfers of rights in the third chapter, the position of guarantors in...
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Cross-border transformations of commercial companies
Rajdová, Denisa ; Dobiáš, Petr (advisor) ; Brodec, Jan (referee) ; Pauknerová, Monika (referee)
This thesis discusses a method of implementation of the freedom of company establishment in the form of cross-border transformations after the amendment of the Transformation Act, which came into force on 1 January 2012. This right which a company is guaranteed is analyzed in the context of relevant CJEU case law. This thesis follows the structure of the Act. The first part deals with general issues of cross-border transformations and is followed by a chapter on the types of cross-border transformations. The final part of this thesis is devoted to a discussion about the possible kinds of economic movation for the tranformations. The goal is to analyze the possibilities of cross-border transformations and to assess their historical development with respect to both major CJEU decisions and legislative activities of the EU and the Czech Republic.
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Monetary claims in intellectual property infringement cases
Sedláček, Václav ; Boháček, Martin (advisor) ; Macek, Jiří (referee) ; Pauknerová, Monika (referee)
The dissertation examines the enforcement of monetary claims in cases of intellectual property rights infringement. It focuses on the Act n. 221/2006 Sb. on the enforcement of intellectual property and on the directive 2004/48/EC of the European parliament and of the Council. The main aim is to evaluate the extent of monetary claims especially with regard on possible overlap or mutual consumption of the claims.The second aim is the analysis of English terminology in relation to the nearest Czech equivalents. The dissertation uses methods of logic induction and abstraction and the international multilateral comparative method, where the use of language plays a crucial role. The exact method of modelling combined with mathematical game theory is used. The dissertation progressively explains terms and relevant enactments. It introduces existing ambiguities. It tries to clarify them by analysing the EU legislation, the implementations in different member states, the statutory and common law in the USA. Consecutively it focuses on unjust enrichment in English law, then in the USA and in the continental system, where this institute is set negatively -- as the unjustified enrichment. Within the whole thesis the analysis takes place in relation to intellectual property rights infringement. In the penultimate chapter, TRIPS and ACTA are compared with the directive 2004/48/EC to provide further explanations. The dissertation concludes that a parallel award of damages and infringer's profits theoretically is possible, when it is not a single flow of value which is concerned by the infringement. The dissertation negatively replies to the question if damages and infringer's profits may be awarded concurrently in two separate lump-sum amounts according to § 5 (2) or (3) of the Act n. 221/2006 Sb. The reason is that the rate of the royalty is applied to sales of the infringer. These sales relate to the unjust enrichment of the infringer. If damages were again calculated by applying the same rate to the same sales, that would be double recovery. But theoretically this possibility cannot be excluded. A real-world example is very hard to find, even in the non-lump-sum form. Collateral sales awarded with lost profit in US law may serve as one. From the EU documents it seems, that infringer's profits is equalled to unjust enrichment and that is translated as unjustified enrichment. But English theory distinguishes restitution of unjust enrichment and gain-based recovery for wrong, the latter encompassing the award of infringer's profits in the form of damages. The broader Czech notion of unjustified enrichment is not to be equalled to unjust enrichment in the pure English notion, because the former encompasses also intentional wrongs. With regard to the restitution of infringer's profits based on unjust enrichment, the intent plays a role. The broader notion of unjust enrichment relevant to intellectual property rights infringement is called interceptive unjust enrichment, where enrichment "from the property of the plaintiff" is at stake and it is also possible to claim profits gained by the infringement. Focus is on the enrichment "from the property", not on the wrong. The dissertation examines the terms "account of profits", apportionment of profits", "disgorgement" and impure negotiorum gestio with regard to intellectual property infringement. In several countries reasonable royalty is regarded as good measure of net gain from the infringement of intellectual property. When the infringement was not innocent or wilful, it's possible to claim not only the objective enrichment but also the subjective enrichment -- profits of the infringer. In Czech law, that is represented by the emoluments from the enrichment. The aim of the last chapter is to evaluate, in the context of the operation of other relevant elements of legal environment, the preventive function of the double royalty claim introduced by the Act n. 221/2006 Sb. By construing a game theory model and using simulation, the thesis concludes that in lower royalty intervals, where attorney's costs are a high burden, the effect of the double royalty is insignificant. Where "more significant infringements" are at stake, and the royalty passes a given frontier, the application of the double royalty heightens the preventive function of the Act. Those "more significant infringements" have two intervals -- with the highest effect of the double royalty and with the "stabilized effect of the double royalty". But overall, in cases of "more significant infringements", the application of the double represents a heightening of the preventive power by a third and fifth respectively, and this is true only in the case, where the prospective infringers would try to calculate the effect of their infringement before infringing.
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