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Mediation of Commercial Disputes: Domestic and International Perspectives
Svatoš, Martin ; Pauknerová, Monika (advisor) ; Balaš, Vladimír (referee) ; Poláček, Bohumil (referee)
SUMMARY: MEDIATION OF COMMERCIAL DISPUTES - DOMESTIC AND INTERNATIONAL PERSPECTIVES Dr. Martin Svatoš This paper addresses the mediation and its use in the both domestic and international commercial disputes. The milieu that serves as a source of the problems to be resolved during mediation is a specific one. It demands quick, cost-effective and confidential resolution of complicated disputes involving several parties. In general, this cannot be granted by the traditional ways of dispute resolution - litigation and arbitration. Mediation is regarded as a cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. On the other hand, there are several legal and legal-related issues that have to be discussed. And thus, the question that remains to be answered is: Is mediation really as effective as it is told? And in the case of a positive answer - why it is not the most commonly used dispute resolution procedure? The main goal of this thesis is to answer these queries. Its first part focuses on the issue of mediation in general. Quite surprisingly, there is no exact definition of mediation neither in the legal acts, nor in the opinion of the ADR experts. In contrast, plenty of definition can be found after short...
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Companies and their mobility in the European context
Belloňová, Pavla ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee) ; Poláček, Bohumil (referee)
With regard to the gradual economic globalisation markets of States become more and more interconnected, especially so in the European Union which aims to create a single internal market without internal borders and barriers to the free movement of goods, persons, services and capital. Naturally, it influences behaviour of economic participants on the market. With increase of competition it is necessary to be more innovative, active and to search for new opportunities for expansion not only in one's own State but also abroad which entails entering into relations with foreign entities. In the course of time it might be useful or even necessary to relocate the place of business. Such need might not and, indeed, does not concern only natural person but also legal entities such as companies. However, the status of companies in cross-border relations has some specific features in comparison to the status of natural persons. A company is only an artificial product of law, a mere legal fiction, and therefore, its existence is much more closely linked with a specific legal order. A company has legal personality only insofar as some legal order acknowledges it. Different approaches how to link a company to a certain State have been evolved in different States - either the connecting factor is the statutory...
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Lex causae of consumer contracts with international element
Bambulová, Barbora ; Pauknerová, Monika (advisor) ; Brodec, Jan (referee)
The thesis is based on the previous work of the author written as a thesis to terminate undergraduate studies in law. In the beginning, it covers two main sources of the EU law regarding the lex causae of contracts with an international element in the area of civil and commercial obligations, i. e. The Rome convention and the Rome I Regulation. In order to better capture the evolution in determination of the lex causae in commercial and civil contracts with an international element, the author introduces first the former and consequently in a comparative way, also the latter. Since this part of the thesis is presented in more general way, it follows that the author deals with the particular issue of consumer protection in the second part. The second part of the thesis covers the issue of consumer contracts as regards the Rome convention and the Rome I Regulation. While generally, contracts are characterized by their nature of performance, in the case of consumer contracts, it is the nature of contractual parties which is decisive. Regarding the consumer contracts, the author analyses the basic terminology of therein in the Czech and the EU context and also indicates possible linguistic problems. Furthermore, the author focuses more in detail on the Consumer Rights Directive which revises by the...
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A Criterion of Habitual Residence in Private International Law
Pfeiffer, Magdalena ; Pauknerová, Monika (advisor) ; Dolanská Bányaiová, Lucie (referee) ; Zavadilová, Marta (referee)
This dissertation deals with one of the most significant concepts of contemporary private international law - the concept of habitual residence. The concept of habitual residence was introduced into the field of private international law within the context of the unification work of the Hague Conference of Private International Law in the interest of finding a compromise between the traditional connecting factors of domicile, dominant in the sphere of common law, and nationality, that is historically closely bound to continental legal systems. Thanks to the long and systematic unification work of the Hague Conference of Private International Law, the connecting factor of habitual residence has gained a permanent indisputable position in private international law. The concept of habitual residence has also forcefully made its way through into the rapidly developing sphere of European private international law. The European Union has followed in the footsteps of the Hague Conference of Private International Law: habitual residence is today the central, most frequently adopted connecting factor in the unified conflict-of-laws rules, that determine the applicable law, as well as in the rules that determine the jurisdiction of the forum. Building on the recent intense development in this field of...
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Damage compensation in cross-border cases focused on sport injuries
Stránská, Kateřina ; Pauknerová, Monika (advisor) ; Kunz, Oto (referee) ; Poláček, Bohumil (referee)
The dissertation deals with the relationship between sport and the law, in conjunction with private international law. For more than a century sport passed through an important period of development. Many sports have been successfully forgotten, some have survived, and many can be included as the new sports with a tradition of several years or decades. Legal theory and legal practice so far took no particular need to take the issue of sports opinion. Sport is an objectively existing category in nature regardless the law. However, questions regularly associated with sports injuries and their resulting consequences emerged. The growing need for legal regulation of sport industry is primarily related to risks that sports bring to their surroundings and also to athletes. In the foreground there is the application of civil law, which affects compensation for damage to health and sports injuries. Clear solution has not been found to this day. The main goal of this thesis is to evaluate the current state winter sports legislation with an emphasis on skiing. The main topic of the dissertation is responsibility for damages in connection with ski injuries. Another objective is a certain attempt to process selected issues of mutual relations between sport and the law with a particular focus on the comparison...
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Carrier's Liability in International Carriage of Goods
Dvořáková, Adriana ; Pauknerová, Monika (advisor) ; Dobiáš, Petr (referee)
The purpose of this thesis is to offer an overview of current legislative situation in international carriage of goods. Special attention is dedicated to carrier's liability in international transport of goods. In a global world, it is vital to keep balance between the rights and duties of both the carrier and the shipper. Otherwise, international trade would become next to impossible to perform. Therefore, dealing with the topic of carrier's liability might clarify certain aspects and possibly bring benefits to both contracting parties. This thesis consists of nine chapters. The three initial chapters present private international law and its methods. Next, the question of liability is briefly introduced. Finally, basic terms such as the carrier and the shipper are defined. In one of its subdivisions, the third chapter also mentions national regulations relevant to the topic discussed. On the contrary, the thesis as a whole addresses rules contained in international treaties. The following chapters are targeted on individual modes of transport, in order of appearance: carriage by rail, carriage by road, carriage by air, carriage by sea, carriage by inland waterways. However, not all of them are granted equal attention. The chapters covering carriage by road and by sea are essential. The reason for...
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International insolvency law
Foľta, Vlastimil ; Brodec, Jan (advisor) ; Pauknerová, Monika (referee)
The thesis is denoted to two principal issues of European insolvency law - COMI notion interpretation and forum shopping. On the background of historic development, it interprets the current wording of European Insolvency Regulation in the light of case law issued by the Court of Justice of the European Union. It also analyses benefits and drawbacks of proposed legislative changes to COMI motion in the connection with the contemplated amendment of the European Insolvency Regulation. It proposes that COMI of companies is determined using irrebuttable presumption of COMI in the place of their registered seat. Further, it distinguishes between positive and negative forum shopping. Also, it provides an overview of risks and advantages related to forum shopping. The thesis evaluates the efficiency of current and potential tools for forum shopping elimination. It also deals with the relation of forum shopping to EU principal freedoms.
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Topical issues of the regulation of international air carriage
Soukup, Viktor ; Pauknerová, Monika (advisor) ; Kučera, Zdeněk (referee)
Executive Summary The thesis "Current Issues of Regulation of International Air Transport" is dedicated to the very up-to date issues of international air transport of persons and goods, especially focused not only on actual regulation in Warsaw and Montreal Convention but also on commercial, technical and operational issues. The thesis is specifically structured it consists of four basic parts (chapters), dedicated to above mentioned aspects. A the beginning it briefly mentiones conception and sources of of regulation of air transport, second chapter focuses on Warsaw and Montreal Conventions with a view to transportation documents. Third chapter presents commercial issues, especially the airspace concept and freedoms of air. The last chapter deals with selected technical and operational issues. Supplement to the thesis "Current Issues of Regulation of International Air Transport" from 2007 reflects a period of 5 years since its submition. Since than a European Regulation 261/2004 has played an important role regarding carrier's liability. Minor changes of Warsaw-Montreal system are described next. Part dealing with commercial issues contains "Open Skies" treaty which liberalized transatlantic market. At the end the author contemplates on future trends and related necessity of regulation.
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Cross-border transfer of the company's seat within the European Union
Molnári, Daniel ; Pauknerová, Monika (advisor) ; Kučera, Zdeněk (referee)
The possibilities of cross-border transfer of company's seat within the European Union represent contemporary issues in the European company law. Currently, there is a large development in this field. The development is mainly based on judgements of the Court of Justice of the European Union. Over the last decades, cross-border transfer of company's seat has been the subject of controversy. The main reason is the lack of political interest in this issue. On the other hand, some of arguments relate to the difference between the approaches of the member states and the controversy between two main conflicts of laws theories: the incorporation theory and the real seat theory. The purpose of this thesis is to analyse the possibilities of cross-border transfer of company's seat within the European Union in the context of private international law. The thesis is composed of five chapters, each of them dealing with different aspects of corporate mobility. The first part of this thesis explains the theoretical background of the topic and defines the basic terminology. This part continues with the specification of aspects and conditions as regards the recognition of foreign companies as legal subjects. The second part describes the conflict of laws theories, their specific features and legal principles. Next...
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Legal aspects of the securing of obligations in international trade
Mišoň, Petr ; Pauknerová, Monika (advisor) ; Dobiáš, Petr (referee)
Legal aspects of the securing of obligations in international trade The securing of obligations in the international trade is recently, possibly more than ever before, very topical issue, and the reason is quite clear - there is a strong need to secure international contractual obligations by effective and reliable securing instruments because of the economic and debt crises which started in 2008 and has been still a very actual problem. This thesis focuses on legal relations arising from the securing of contractual obligations in the international trade. The goal of the thesis is to describe legal aspects of securing obligations considering the determination of an applicable law, under which the securing is governed. Because of the author's long- term working bank experience, the final part of the text deals with a securing by a bank guarantee. In the first part of the thesis there are described legal relations in which an international element appears, and there are also described a purpose, function, categorization and different types of securing instruments respective of the international trade. The second part of the thesis deals with the problem how to determine which law is the applicable one for securing of obligations in the international trade. There are described legal aspects of...
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