CEEOL - Browse Subjects Result

We kindly inform you that, as long as the subject affiliation of our 300.000+ articles is in progress, you might get unsufficient or no results on your third level or second level search. In this case, please broaden your search criteria.

Praktické aspekty stavění promlčecí doby při neplatné podnikatelské rozhodčí doložce

Author(s): Stanislav Bílek,Radka Vaníčková / Language(s): Czech Issue: 3/2017

Arbitration was an effective and cost-effective alternative to civil justice, in particular for entrepreneurs. Private arbitration companies that have not and still do not have the status of arbitral tribunal have also been using private lawsuits to make decisions on property disputes. In the application practice of general courts, in recent years, the issue of cancellation of null arbitration awards issued by these private arbitrators resonates in favour of a conflict of arbitration clauses, according to which the competence of private arbitrators was based on Act No. 216/1994 Coll., On arbitration proceedings on the performance of arbitral findings in the valid Or, in case of conflict with another legal regulation. The purpose of the paper is to point to one of the many interpretative difficulties in connection with the annulment of arbitration awards issued on the basis of invalid arbitration clauses, whether by applying the claim to an arbitrator by an annulment of an arbitration clause, the running of the limitation period is established and under what conditions. Further, carry out a brief analysis of the current judicial practice in the annulment of arbitrarily arbitrary judgments and a legal interpretation of the implications of this approach of general courts in the matter of the limitation of property rights, especially with a focus on legal relations between entrepreneurs. The effects of a non-arbitrary award cannot be automatically applied to an act of filing arbitration in respect of the principle of legal certainty as a fundamental prerequisite for the rule of law. The filing of an arbitration award based on an invalid clause, based on the views of the authors of the contribution, results in a certain amount of limitation. The authors split the contribution into two parts. In the first part, they provide an introductory explanation of the subject matter and take positions on the case-law on invalid business clauses. In the second part, they define the impact of the jurisprudence of courts in the area under review in relation to the question of setting the limitation period and submit proposals for solutions in accordance with the valid legislation.

More...

Právo sell-out z pohledu teorie a praxe

Author(s): Michala Špačková / Language(s): Czech Issue: 1/2017

The sell-out right represents an important instrument of the protection of minority shareholders, despite its limited application in practice. The Czech regulation of the sell-out right reflects its meaning only partially. The explicit formulation of the sell-out rule (general clause) can be judged positively. On the other hand, the particular rules of the sell-out procedure don’t fully respect the specific characteristics of the sell-out right. The aim of this article isn’t only to point on the legislative shortcomings, but also to offer some applicable solutions, including the use of the functionally comparable exit right.

More...

Nad charakterem porušení fiduciárních povinností člena voleného orgánu

Author(s): Zdeněk Houdek / Language(s): Czech Issue: 4/2016

The ongoing debate over the nature of the relationship between a member of an elected body and business corporation apparently has not yet produced a unanimous opinion. In particular, the question is whether a breach of fiduciary duties should be considered as breach of contract or breach of the statutory provision, and whether a member of an elected body of a corporation exercises a contractual representation or a representation of law. This paper describes previously published views on these questions and brings the author’s own conclusions on the issue.

More...

Ustanovení o použití jiných právních předpisů v dvoustranných dohodách o podpoře a ochraně mezinárodních investic

Author(s): Ivan Cisár / Language(s): Czech Issue: 2/2016

Provision on application of other rules is one of the common provisions included regularly into the bilateral investment treaties. Although, the provision itself is raised by investors or host states in investment arbitration sparsely, it has been raised by the investors to overcome negative decisions on more standard provisions under the bilateral investment treaties. Investors have attempted to interpret this provision either as variation of umbrella clause or most-favoured nation clause. This article is analysing interpretations provided by the investors and the determinations of the arbitral tribunals. The aim is to provide own interpretation of purpose and content of these provisions.

More...

Pravidlo podnikatelského úsudku v německém právu

Author(s): Alena Pokorná / Language(s): Czech Issue: 2/2015

The legal regulation of the so called business judgment rule has been stipulated in the Czech Law since February 1, 2014. This rule enables the board member to approve that he had respected the established procedure while making a decision and that he bears therefore no liability for a possible loss caused to the company due to his decision. This article is dealing with the business judgment rule in neighboring Germany as a possible source of inspiration for the Czech legal system.

More...

Nekalé obchodní praktiky mezi podnikateli a smluvní svoboda

Author(s): Josef Bejček / Language(s): Czech Issue: 1/2015

The relationship between an entrepreneur (businessperson) and a consumer (B2C) is usually considered to be asymmetric due to its very substance. It is termed as structure-based power imbalance. Important difference in bargaining power may nevertheless occur in B2B relations, too; it concerns at least small and middle-sized entrepreneurs (SME). The reasons thereof are similar – different economic power of contracting parties, limited rationality, and information asymmetry. Therefore, general customer protection (instead of consumer protection) against unfair trade practices is being considered.European Commission has issued Green Paper „Unfair Trade Practices in the Business-to Business Food and Non-Food Supply Chain in Europe“ in 2013. It concerns B2B relations and aims at covering all supply chains regardless of food supply sector. Several unfair practices are indicated (retroactive misuse of unspecified, ambiguous or incomplete contract terms; excessive and unpredictable transfer of costs or risks to the counterparty; unfair use of confidential information; unfair termination or disruption of a commercial relationship). The article critically comments this attempt to safeguard the fairness and proportionality of commercial terms by means of centrally aimed, EU-wide and across-the sectors intended public law measures. It might endanger the coherence of the existing and well-working selective tools and the private law autonomy of contracting parties. Public law means should be used in protecting competition and consumers. The protection of generally weaker party should be accomplished by private law means.

More...

(Niektoré) Zmluvnoprávne aspekty práva proti nekalej súťaži

Author(s): Kristián Csach / Language(s): Slovak Issue: 1/2015

The author tried to elaborate on the issue whether an invalid contract term could be also considered unfair commercial practice or a violation of rules on unfair competition which could be enforced not only by the contractual party, but also by competitors. In accordance with the recent Austrian and German case-law the author pleaded for the applicability of general clause of unfair commercial practices on breach of consumer contracts regulation (unfair term). Thereby a void contractual term (unfair term) may fulfill the criteria set for an unfair commercial practice. However, not every conflict with mandatory contract law regulation fulfills the criteria of unfair commercial practices or unfair competition in general as the applicability of the general clause – whether within unfair competition or unfair commercial practices – is to be tested in concreto.In order to equal a violation of the regulation on contract law to a violation of the regulation on unfair commercial practices or unfair competitions, the nullity of a contractual stipulation should fulfill at least following criteria. The contract law rule which was violated had to address the commercial behavior of the party, its violation had to have an economic impact on the competitor and shall not be directed solely towards the contractual parties and their protection. Moreover, the general clause of unfair commercial practices requires a breach of professional diligence. Not every violation of contract law regulation shall be sufficiently relevant to establish a violation of professional diligence (i.e. if the unfairness of a contractual stipulation has yet not been settled by case-law nor legal science). The same should apply to the general clause of unfair competition.

More...

O variantách uspořádání podnikatelského seskupení

Author(s): Stanislava Černá / Language(s): Czech Issue: 1/2015

The introductory part of the paper characterizes the horizontal and vertical types of group of companies (in German and Swiss terminology called as Gleichsordnungskonzern or Koordinationskonzern). Unsubordinated group of companies is characterized by the uniform business management together with the absence of the controlling linkage between its members. The main part of the paper is dedicated to the vertical type of group of companies, called as a concern, which represents the supreme form of the vertically organized group of companies. The paper analyzes the interest of the concern, uniform policy and uniform business management as the key attributes of concern. Furthermore, the paper is focused on the possible types of organization of vertical type of group of companies. Within such a group of companies, a number of concerns may exist. Also the organization, in which some of the controlled members form together a concern, whereas the other members are only controlled without being uniformly managed, is possible. The group of companies may also be organized in a way that the person standing on the top of the group controls the parental company, which creates a concern from its controlled subsidiaries and sub-subsidiaries. The paper also highlights further types of organization of the group of companies.

More...

Zákaz konkurence členů představenstva akciové společnosti: „uvolněné“ mravy zákona o obchodních korporacích?

Author(s): Ján Dědič,Jan Lašák / Language(s): Czech Issue: 1/2015

This article analyzes the duty of non-competition as concerns directors in a Czech joint-stock company. The relevance of this issue has become more evident following the adoption of the new Business Corporations Act (No. 90/2012 Coll.), which eases the burden by allowing the duty to be breached, provided the director informs the joint-stock company and does not receive an explicit instruction to refrain from the competing activity. However, the liberal approach taken by Czech lawmakers raises some very serious questions, such as it conforms to the mandatory rules governing the fiduciary duties of directors, most importantly the obligation of loyalty. Throughout this article, legal analyses of the Czech legislation in force are enriched by the comparative approach of the authors, who support their arguments by giving examples of similar issues in Great Britain, France, Spain and Germany. The conclusion aims to synthesise the problem and argues that even a legally permitted breach of a duty of non-competition cannot free directors from their fiduciary duties, which represent the cornerstone of modern corporation law.

More...

Následné chování smluvních stran a jeho (ne)samozřejmé využití při jednoduchém výkladu smlouvy

Author(s): Josef Kotásek / Language(s): Czech Issue: 1/2015

In recent times, contract interpretation has become one of the most contentious areas of the law of contract. The law relating to the interpretation of contracts varies around the world. Some civil law countries take a subjective approach which defers to the actual common intention of the parties. Some countries prefer an objective approach to the interpretation of contracts. The interpretation of contracts in the Czech Civil Code lies in the combination of the subjective and (subordinate) objective methods of interpretation. In determining the intent of a party, consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves and any subsequent conduct of the parties. The author argues that there are no convincing reasons of principle, policy or convenience for refusing to receive evidence of post-contractual negotiations and subsequent conduct, even though later recollections of what was meant may be unreliable. The parties‘ behavior may naturally better reveal their intentions in a transparent and objective way. Author deals with the extent to which post-contractual negotiations and another subsequent conducts are admissible to aid the interpretation of (commercial) contracts.

More...

Štátna kontrola v procesoch cezhraničného zlúčenia a splynutia podľa slovenského práva

Author(s): Mária Patakyová,Angelika Mašurová / Language(s): Slovak Issue: 1/2015

This article deals with a specific legal issue associated with cross-border mergers: state control of cross-border merger processes. The process of cross-border merger demonstrates a distinguished and often a very complicated process of “company transformation” because it causes a “collision” of at least two legal systems. The mandatory state control of the particular stages of merger plays an important part within these processes, especially on the ground of protection of creditors, employees and minority shareholders of merging companies. The Slovak legislative authority confided the state control in the preparatory merger phase to notaries whereas the final stage of merger was put into the authority of register courts. This study focuses on efficiency and scope of the mandatory control performed by these state institutions and its possible impact on the merger process. It also deals with the question to what extent the Slovak legal authority took into account the minimum requirements of the European law. In connection with the cross-border merger control we consider as very problematic the fact that under Slovak law the cross-border merger is not a subject to a sufficient material control on the part of none of the above described institutions, especially respective the capital maintenance rules and the rules on prohibition to return the invested contributions. Moreover, in the case of an export merger Slovak law does not regulate any obligatory period for the deletion of the company being dissolved from the commercial register by the register court.

More...

Jméno společníka jako součást obchodní firmy

Author(s): Jarmila Pokorná,Eva Večerková / Language(s): Czech Issue: 1/2015

The article deals with legal regulation of using partners names in the firm names of business companies. It is looking into the problem of giving and taking back consent to use the name of natural person in the firm of business company. The new Civil Code makes use of the name dependent on special relation between business company and natural person and on permission of natural person, but it does not provide how and when the permission should be given. By definition, there has to be a contract between bearer of he name and the company, the contract can also form a part of articles of association. If the bearer of the name dies, a permission can be given by his husband or descendant or ancestor. The person being authorized to give a permission can take the permission back, if circumstances have changed significantly. However, it is still unclear, how to proceed in case of large number of authorized persons.

More...

Protismluvní doplnění blankosměnky

Author(s): Zuzana Dvořáková / Language(s): Czech Issue: 3/2019

In case of the beneficiary deviates from the bill-filling agreement when filling the blank bill, the issuer of the blank bill has an objection to the non-contractual amendment of the blank bill. The paper discusses the influence of a non-contractual amendment of the blank bill on the obligation to pay a bill of exchange depending on the particular data and ways of their supplementation, the circle of persons entitled to object to the non-contractual amendment.

More...

Závazkové nástroje ochrany smluvního věřitele korporace začleněné do podnikatelského seskupení

Author(s): Zdeněk Houdek / Language(s): Czech Issue: 4/2019

The significance of corporate groups continues to increase, as well as their economic power. There is no uniform definition of corporate groups and the concept covers the spectrum from highly centralized to largely diversified groups. With limited shareholder liability for parent companies as the general norm, the leading question in the following is to what extent a parent company can be held liable for performance breaches of its subsidiary, who is actually contracting with the client, even though she is bound to follow instructions from the parent company. The following treatise analyses the preconditions of creditor protection in corporate group, which is based on the application of contractual instruments of creditor protection. It is concluded that subsidiary creditors can have a standing in a lawsuit against a parent corporation based on preconditions for the imposition of culpa in contrahendo by third parties and elements derived from the third party protection contracts.

More...

Umoření listin: ojedinělé řízení s dalekosáhlým dopadem

Author(s): Ondřej Placzek,Roman Šafář / Language(s): Czech Issue: 2/2020

This article examines selected problematic aspects of the contemporary regulation of amortization of documents, describes their practical effects and suggests possible solutions. The authors mainly focus on the impact of the transfer of the proceeding’s regulation to the Act on Special Judicial Proceedings on the character of the proceeding and usability of certain institutes typical for contradictory proceedings. The authors further focus on the participants of the proceeding, requirements imposed on the amortized documents and practical impacts of the final ruling act.

More...

Právo rozhodné ve sporech z porušení práva k obchodnímu jménu

Author(s): Helena Pullmannová / Language(s): Czech Issue: 3/2021

The paper discusses an issue of determining the law applicable to disputes arising from the violation (or threat) of a right to a trade name in non-contractual obligations in the light of Czech private international law, especially the Rome II Regulation. Attention is paid, inter alia, to the question of whether it is possible to choose the law applicable in these disputes and how to deal with the many applicable laws in an infringement of a right to a trade name by acting with effects in several countries.Finally, the criteria contained in the Rome II Regulation for determining the law applicable to trade name infringement disputes in non-contractual obligations and related issues mentioned above are compared with the criteria set out in the CLIP Principles in order to emphasize a different approach to these matters.

More...

Dodatečné poskytnutí vysvětlení

Author(s): Michala Špačková / Language(s): Czech Issue: 1/2022

The additional obligation to provide information is kind of a novelty in Czech law, whose application raises a lot of questions. First of all, problems are concerned with the application prerequisites of this legal exception from the principle to provide an explanation during the General Meeting. Special attention must be paid especially to the question of the scope of the Board members duty to prepare thoroughly for the shareholders’ questions. Not less important is the issue of the means of protection of the right to information, especially the right to claim invalidity of a General Meeting resolution due to its conflict with the law. The shareholders’ protection must be assessed differently in the situation of the unfounded additional provision of information in contrast with another problem related to the failure of the Board to provide the previously promised answer. The goal of this paper is to illustrate possible interpretative solutions of the mentioned problems also with the use of the knowledge of the German legal system, which served as a main source of inspirations for the Czech regulation of the shareholders’ right to information.

More...

Vyvážení konkurenční doložky v obchodním zastoupení

Author(s): Ondřej Placzek / Language(s): Czech Issue: 2/2022

This article examines whether parties of commercial agency contract are required to agree on compensation of non-compete clause when such clause is included in the contract. In adition to discussing the duty to compensate as it pertains to non-compete clause, the author analyzes advantages and disadvantages of possible methods of compensation and examines the role of special indemnity in balancing a non-compete clause. Finally, the author considers the question of reasonableness of compensation.

More...

JUDICIJALIZACIJA MEĐUNARODNIH INVESTICIONIH ARBITRAŽA

Author(s): Radovan D. Vukadinović / Language(s): Serbian Issue: 1/2019

After decades of implementation of the ISDS mechanism for the settlement of arbitration disputes from bilateral and multilateral agreements on the protection and promotion of foreign investment, which has been contracted in various types of international investment agreements, in the last two decades there is intensive work on their revision or replacement. Discussions are conducted within UNCITRAL, UNCTAD, OECD and EU. The paper analyzes the proposal made on behalf of the EU by the European Commission in way of judicialization of arbitration. The European Commission proposes to replace the existing system of arbitration settlement of disputes by a judicial mechanism, by establishing a permanent international court and the Court of Appeal. Initially, a permanent court mechanism would be contracted into bilateral agreements that the EU would conclude with third countries. Subsequently, a special international convention would be adopted which would change bilateral agreements. The paper provides an analysis of the solution proposed by the EU, but the dilemma remains that it is only a "repackaged" ISDS mechanism and whether the proposed judicial mechanism can meet the expectations that exist in terms of greater transparency of the procedure, impartiality of judges and preservation of the legislative autonomy of the host countries.

More...

UTICAJ DIGITALIZACIJE NA RAZVOJ AUTORSKOG PRAVA U EVROPSKOJ UNIJI

Author(s): Njegoslav Jović / Language(s): Serbian Issue: 1/2019

Author's works in a classical, analogous form, through the development of digitization, leave the markets to acts in digital form. The European Union (EU) market is no longer just a single (internal) market, it is also becoming a single digital market. With the development of technology, copyright is also developing. Existing national laws as well as EU regulations can hardly adequately follow these changes. In this sense, several secondary regulations were adopted in the EU and the last was adopted in May 2019. Directive (EU) 2019/790 of the European Parliament and of the Council of 17 May 2019 on copyright and related rights in a single digital market and amending the Directive 96/9/EC and 2001/29/EC. The subject of this paper will be the analysis of EU regulations related to the development of copyright and related rights in order to adapt them to the digital environment. An analysis of EU regulations should give us an answer to the question of whether copyright law in the EU has been developed at a level that can track digitization and its accompanying phenomena.

More...