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Set-off Defence in International Commercial Arbitration
Hock, Branislav ; Dobiáš, Petr (advisor) ; Brodec, Jan (referee)
Set-off is meant to be one of the most important defences in arbitration proceedings. About 15 - 20 per cent of all international arbitrations involve set-off defence. There is not much dispute about the possibility to virtually extinguish mutual claims of the parties however national concepts of set-off differ dramatically. Moreover, in contrast to most other legal mechanisms set-off is always formed by no less than two obligations. These obligations may be regarded differently and be subject to different laws which can lead to a series of difficult questions regarding not only choice-of-law but also judicial competence. The centrum of the controversy lays in the situation when the defendant raises his cross-claim, which falls outside the scope of an arbitration agreement, to be mutually offset. Arbitrators can be in a very difficult position as they have to find, in the absence of any clear rule, reasonable limits of the adjudication of set-off. This work aims to find out what should be the limits of the adjudication of set-off with the cross-claim over which the tribunal normally wouldn't be competent to decide. There is offered a legal framework with a set of good practices which should be followed in order to strengthen legal certainty, procedural efficiency and effective functioning of...
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Set off in commercial obligation relationships
Jäger, Marek ; Plíva, Stanislav (advisor) ; Marek, Karel (referee) ; Zahradníčková, Marie (referee)
1 Abstract Although set-off represents one of the most frequent processes of the discharge of obligations unlike performance, the contemporary specialized literature deals with it only in its fragmentary exposures. However, there is no systematic elaboration of this process of the discharge of obligations. The regress of the attention paid to the discharge of obligations by set-off apparently persists from the time, when set-off as a process of the discharge of obligations, which was unfamiliar with the central directed political economy, receded into the background. Therefore the exordium deals with the essence of set-off first of all, further with its relationship to the discharge of obligations by performance as well as with the position of set- off in public law. The chapter treating of the essence of set-off aims to void of its understanding by the economic connotation of this process of the discharge of obligations and to get near to its law essence. It is possible to think of this essence both from the viewpoint of the debtor who waives an obligation and from the viewpoint of the creditor who gains a substitutionary satisfaction of his receivable without an acceptance of the other party of an obligation relationship and without the necessity to enforce this receivable by a court or other authority....
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Other manners of extinction of obligations
Schwarzová, Aneta ; Lederer, Vít (referee)
Resumé This diploma thesis provides a basic insight into the issue of extinction obligations. In the first part, the author focused on the principles of the law of obligations, definition of related terms, legal enshrining and, in general, the origin, change and termination of the obligation. Subsequently, the thesis deals in general with the extinction of obligations. Furthermore, the author focused on selected ways of some of the other manners of extinction of obligations. These institutes are analyzed in more detail - set-off, withdrawal from contract, termination of an obligation and subsequent impossibility of performance. For the sake of clarity in reading the texts, the individual institutes are prepared according to the same outline - general introduction, admissibility, realization, effects and the final subchapter. In this subchapter, the thesis deals with some specifics that can be mentioned in connection with the institute and also how the institutes are used in their interpretation and application in specific situations. The thesis highlights some of the pitfalls of application practice. In addition to outlining the problem, the author tries in some cases to find a solution or to evaluate the current situation and the development of the problem in the future. Partial outcomes of this thesis...
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Set-off Defence
Vaněk, Martin ; Dvořák, Bohumil (advisor) ; Holčapek, Tomáš (referee)
63 Set-off Defence Abstract The thesis deals with set-off from the point of view of procedural law and using the method of functional interpretation of law, strives to provide answers to questions that appear in the court proceedings in connection with its use. It builds on theorists who dealt with the issue of inducing an effect of set-off in the proceedings in the late 20th century, but also takes into account the findings of current academic community and presents the judicial conclusions reached by (not only Czech) courts. The thesis is divided into 4 chapters. The first chapter briefly deals with the substantive legislation of set-off (especially the requirements laid down for the receivables that are to be set-off, and cases where set-off is prohibited by law). A declaration of set-off as a substantive act may be decisive in assessing the admissibility of set-off in proceedings. The second chapter describes the origin of set-off in ancient Rome and the different concepts of set-off in current legal codifications, which is the result of inconsistent interpretation and reception of this institute by medieval scholars. This is reflected by Czech legal science in existence of civilian and procedural theory of offsetting. In the third chapter, the thesis deals with purely procedural aspects of set-off. The...
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Other manners of extinction of obligations
Schwarzová, Aneta ; Lederer, Vít (referee)
Resumé This diploma thesis provides a basic insight into the issue of extinction obligations. In the first part, the author focused on the principles of the law of obligations, definition of related terms, legal enshrining and, in general, the origin, change and termination of the obligation. Subsequently, the thesis deals in general with the extinction of obligations. Furthermore, the author focused on selected ways of some of the other manners of extinction of obligations. These institutes are analyzed in more detail - set-off, withdrawal from contract, termination of an obligation and subsequent impossibility of performance. For the sake of clarity in reading the texts, the individual institutes are prepared according to the same outline - general introduction, admissibility, realization, effects and the final subchapter. In this subchapter, the thesis deals with some specifics that can be mentioned in connection with the institute and also how the institutes are used in their interpretation and application in specific situations. The thesis highlights some of the pitfalls of application practice. In addition to outlining the problem, the author tries in some cases to find a solution or to evaluate the current situation and the development of the problem in the future. Partial outcomes of this thesis...
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Set off in commercial obligation relationships
Jäger, Marek ; Plíva, Stanislav (advisor) ; Marek, Karel (referee) ; Zahradníčková, Marie (referee)
1 Abstract Although set-off represents one of the most frequent processes of the discharge of obligations unlike performance, the contemporary specialized literature deals with it only in its fragmentary exposures. However, there is no systematic elaboration of this process of the discharge of obligations. The regress of the attention paid to the discharge of obligations by set-off apparently persists from the time, when set-off as a process of the discharge of obligations, which was unfamiliar with the central directed political economy, receded into the background. Therefore the exordium deals with the essence of set-off first of all, further with its relationship to the discharge of obligations by performance as well as with the position of set- off in public law. The chapter treating of the essence of set-off aims to void of its understanding by the economic connotation of this process of the discharge of obligations and to get near to its law essence. It is possible to think of this essence both from the viewpoint of the debtor who waives an obligation and from the viewpoint of the creditor who gains a substitutionary satisfaction of his receivable without an acceptance of the other party of an obligation relationship and without the necessity to enforce this receivable by a court or other authority....
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Set-off Defence in International Commercial Arbitration
Hock, Branislav ; Dobiáš, Petr (advisor) ; Brodec, Jan (referee)
Set-off is meant to be one of the most important defences in arbitration proceedings. About 15 - 20 per cent of all international arbitrations involve set-off defence. There is not much dispute about the possibility to virtually extinguish mutual claims of the parties however national concepts of set-off differ dramatically. Moreover, in contrast to most other legal mechanisms set-off is always formed by no less than two obligations. These obligations may be regarded differently and be subject to different laws which can lead to a series of difficult questions regarding not only choice-of-law but also judicial competence. The centrum of the controversy lays in the situation when the defendant raises his cross-claim, which falls outside the scope of an arbitration agreement, to be mutually offset. Arbitrators can be in a very difficult position as they have to find, in the absence of any clear rule, reasonable limits of the adjudication of set-off. This work aims to find out what should be the limits of the adjudication of set-off with the cross-claim over which the tribunal normally wouldn't be competent to decide. There is offered a legal framework with a set of good practices which should be followed in order to strengthen legal certainty, procedural efficiency and effective functioning of...
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Discharge of Obligations in Commercial Relations
Štembergová, Alena Miriam ; Kotoučová, Jiřina (advisor) ; Švarc, Zbyněk (referee)
First part discusses discharge of obligations by performance. Second part discusses discharge of obligations by other ways - agreement of contractors, withdrawal from a contract, frustration of the purpouse of a contract, compensation for withdrawal, subsequent impossibility of performance, not claiming the rights, termination, set-off of claims, settlement with creditor, merge of creditor and debitor, death of creditor or debitor. The text contains many examples of commercial praxis.
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