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Kritická analýza judikatury Soudního dvora EU ve věcech určení mezinárodní příslušnosti soudů v případě pomluvy a porušení osobnostních práv na internetu

Author(s): Tereza Kyselovská / Language(s): Czech Issue: 4/2018

This article deals with the analysis of the jurisdictional rule “place of the harmful event” for disputes arising out of defamation and infringements of personality rights by information published on the internet. This rule is governed by Article 7 Para 2 of the Brussels Ibis Regulation. The subject of the analysis are decisions of the Court of Justice of the EU, namely Bier, Shevill, eDate and Bolagsupplysningen, in which the Court, inter alia, created a so-called „mosaic“ approach for damages and a new jurisdictional criterion „center of interest“. The aforementioned decisions are critically analyzed in terms of the nature of dissemination of information on the internet and the appropriateness and usefulness of this interpretation in the context of the objectives and principles underlying the Brussels Ibis Regulation.

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Role suverenity při analýze vztahu Evropské unie a České republiky jako členského státu EU – slepá větev, nebo odrazový můstek?

Author(s): Miroslav Knob / Language(s): Czech Issue: 2/2017

This paper builds on the conclusions of Pavel Molek’s book „Material Core of Constitution – an Eternal Obstacle to EU Integration?” Basics of this paper are based on the book’s conclusions regarding the concept of material core of the constitution and the concept of sovereignty as a part of the material core of the constitution. The article first analyses basic approaches to the concept of sovereignty, especially focusing on the issue of European Union law and the relationship between the EU and its Member States. The article further outlines six substantial judgements of Constitutional court and the role of the concept of sovereignty in relationship between the Czech Republic as a member state of the EU and the Union itself. The conclusion of this paper is the finding that concept of sovereignty has no relation to the analyzation of the relationship between the Czech Republic as a member state of the EU and the Union itself. That is because the sovereignty is more a limitation for this relationship than its part. If the next academic debate wants to deal with relations among the EU and its Member States, it is necessary to focus on the issue of transfer of competences.

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Rozhodovanie podľa zásad spravodlivosti v prípadoch dotknutých korupciou v medzinárodnej obchodnej arbitráži

Author(s): Michaela Garajová / Language(s): Slovak Issue: 2/2019

Decision-making ex aequo et bono in international commercial arbitration is a relatively common phenomenon. The strictness of national rules does not allow the parties flexibility in disputes, that they need in view of long-standing business relationships. The fact that national law does not apply to arbitration does not mean that the arbitrators do not have the tools they can use in cases where they detect the corruption of parties directly related to the dispute in question. While arbitrators cannot go beyond their powers, they still have an obligation to investigate and enforce public order. This must also be done in cases where they decide ex aequo et bono.

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Evropeizace českých zákonů 1998-2013: Empirické údaje o míře vlivu práva EU a dopadech na legislativní proces

Author(s): Robert Zbíral / Language(s): Czech Issue: 3/2015

Europeanisation affects almost all aspects of social relations in the EU Member States and law is no exception. Yet we still know quite little about the overall extent of EU influence on Czech legal order, also because the research concentrates on more particular issues. This article presents results of a long-term empirical research that collected data on EU impulses on all bills submitted to the Chamber of Deputies between 1998 and 2013. After discussing methodology and data sources, the overall impact of EU law on Czech bills is determined through various innovative methods. Across them, it was found out that the influence is relatively stable after the accession, but varies profoundly between different thematic fields. The second part of the article explores the divergences between bills based on their level of Europeanization, namely in selected features of the legislative process and content of the proposal. A central hypothesis predicting lower involvement of Members of Parliaments in the case of Europeanized proposals is tested. The quantitative analysis offers inconclusive results, in some variables the differences are clearly visible (success rate of EU affected bills, length of plenary discussions), in others there is almost no variance (duration of the legislative process, voting results).

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Vyšší moc, hardship aneb Smluvní doložky v mezinárodní praxi

Author(s): Naděžda Rozehnalová / Language(s): Czech Issue: 1/2015

Force majeure and hardship – two legal terms connected with drafting contracts (with or without cross-border element); two concepts having some common features; however, two concepts which are different in their preconditions, and in their legal consequences.

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Nový občanský zákoník a licenční smlouva k předmětům průmyslového vlastnictví

Author(s): Matěj Myška / Language(s): Czech Issue: 4/2014

This paper analyses and compares the regulation of industrial property licensing agreement before and after the effective date of the new civil code. The general section introduces the conceptual change in the understanding of the licensing agreement as well as the new concept of immaterial things. The special part presents in further detail the regulation of the formation, form, parties and content of the licensing agreement as well as the possible disposition therewith. The broadening of the scope of the licensing agreement (industrial and other intellectual property rights), the possibility to negotiate a royalty-free license, the changes in the subject entitled to enforce the rights from the license, the preference of an exclusive license as well as to possibility to assign the license with written consent of the licensor were identified as major changes. Overall, the new legislation concerning licensing agreements is evaluated as adequately reflecting the needs of practice.

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Význam výhrady podle článku 95 pro aplikaci Úmluvy OSN o smlouvách o mezinárodní koupi zboží

Author(s): Jana Svěráková / Language(s): Czech Issue: 4/2014

This paper deals with the application of CISG under Article 1 (1) (b) in conjunction with the reservation under Article 95 of the Convention. This question is the most complicated problem of application of the Convention. The initial hypothesis is based on the assumption that the existence of the reservation under Article 95 of the Convention may, under certain circumstances, establish legal uncertainty for the parties. There are analysed all variants, which arise from using of two variable – location of the forum and applicable law. This paper outlines these issues, showing that a specific imperative statement that would be acceptable for all situations without reservations can hardly be achieved. Namely, there are many principles of the private and public international law in opposition to each other, though being of the same importance; and if one principle is applied, the other will necessarily have to be applied with limitations. Many experts recognised worldwide also contradict each other in this respect, e.g. Schlechtriem or Ferrari to be more specific. This facts do not speak for the maintenance of the reservation under Article 95 of the Convention.

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Europeizace a evropské správní právo

Author(s): Lukáš Potěšil / Language(s): Czech Issue: 3/2014

The paper discusses about the relatively new phenomenon, called „European Administrative Law“. At first points out that in its content means the polysem. Therefore, in the article is attention devoted into different meanings of this term. All of them are detailed described. Of these different meaning prevails, sometimes simplistic, identification of the European Administrative Law as an Administrative Law of the European Union itself. Therefore is in the article namely described the phenomenon of Administrative Law of the European Union, as well as are also mentioned new issues of this field. At the same time the contribution paid attention to related term called „Europeanisation“, which is an input into the issues examined. But this issue is described from the wiev of the Administrative Law, not from the scope of the legal order itself. At the end the post tries to answer obvious question, whether, in the case of European Administrative Law goes „now“ at the (new) legal branch, or „still“ on specific scientific (and teaching) discipline. The conclusion and answer is that the European Administrative Law is not legal branch in such extent in which is usually understand, but it is a special way of influence of the European union and the Council of Europe.

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Ústavní soudnictví Korejské republiky: Kontrola ústavnosti v podmínkách tradiční konfuciánské společnosti

Author(s): Daniela Dušková / Language(s): Czech Issue: 2/2014

The aim of this article is to introduce a system of the constitutional judiciary of Republic of Korea as the system Czech reader should probably not be very familiar with. Following the history of constitutional review in Korea, there are shown many forms the constitutional review institutions took on during the time. In Korea, there was adopted one after another almost every form of constitutional review we know from constitutional law textbooks – from judicial review á la Supreme Court of United States on the one hand to the kelsenian model on the other. The article mainly focuses on the development in last twenty years after the Constitutional Court of Korea was established in its present form. According to Tom Ginsburg the Constitutional Court of Korea is arguably the most important and most influential of all constitutional courts in East and Southeast Asia, this article submits possible reasons and circumstances leading to this success including political background and the most important cases held before the Constitutional Court of Korea. The article then analyses the real and possible conflicts between “imported” system of constitutional review based on Western society’s values and philosophy and approach of traditional Confucian society. Overview of relevant case law shows how sensitive this question is although we can conclude the clear tendency toward globalization at the same time.

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Interakce výlučné pravomoci a porušování práv k duševnímu vlastnictví na internetu v novém nařízení Brusel I bis, aneb jak se ignorují hlasy z praxe

Author(s): Jaroslav Králíček / Language(s): Czech Issue: 1/2014

According to the prevailing opinions the principle of territoriality is still the leading principle of intellectual property rights in relations with international element. This is the case even if those relations are carried out on the Internet. This principle, which had been completely understandable at the beginnings of the intellectual property rights, is reflected both in the stage of determining the jurisdiction and in the stage of determining the law applicable. There are many legal acts applicable to the above mentioned area in the European Union that reflect that principle. However, these acts are highly unresponsive to the “new” trend of exploitation of intellectual property rights on the Internet. These facts lead in practice to considerable problems. In December of 2012 the new regulation of the European Parliament and of the Council (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the so-called Brussels I bis regulation, has been adopted. The question whether the European legislator effectively responds to the above mentioned problems therefore arises. This article presents such selected problems of the most commonly used legislation of the European Union in the area in question. The emphasis is put on the interaction of the exclusive jurisdiction and the infringement of intellectual property rights on the internet. This article further analyzes how the European legislator actually dealt with those problems in the Brussels I bis regulation.

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K přípustnosti přezkumu ústavnosti změn ústavy v Polsku ve srovnávacím pohledu

Author(s): Radosław Grabowski / Language(s): Czech Issue: 4/2013

The author analyses the problem of admissibility of the review of the constitutionality of amendments of the Constitution in Poland in comparative perspective. For that purpose he deals with the classification of a scope (competency, procedure or substance), forms of such a review and the organs entrusted with executing of it. The conclusions in the study are made on the background of materials taken from comparative study dealing with the amending of constitutions in 45 European countries. The author comes to the conclusion that the missing review of the constitutionality of the amendment of the constitutions is caused by a lack of traditions in this area. This also implies that in this direction could not be expect some significant shifts. It is related to the fact that this issue is already regulated in constitutions usually lacunary, sketchy and not very accurately. It doesn't help to develop a better solution, although the issue of the admissibility of such implementation is one of the most important questions in the field of constitutional system.

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Určení sudiště v případě pomluvy na internetu – několik poznámek k judikatuře Soudního dvora Evropské unie

Author(s): Tereza Kyselovská / Language(s): Czech Issue: 4/2013

This article deals with the topic of jurisdiction in online defamation. Focus of the article is on the Article 5 Paragraph 3 of the Brussels I Regulation. This provision contains jurisdictional rule for non-contractual obligations – “place of harmful event”. This rule was recently subject to the Court of Justice of the EU decision in eDate. In this decision the Court of Justice interpreted this rule in case of online defamation. It extended the Shevill rule and created new and additional interpretation of this rule consisting in claimant’s “centre of interest”. This decision raised many question regarding its applicability and suitability. This article tried to analyze some of the issues raised by this decision.

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Vyloučení osob podezřelých z terorismu z postavení uprchlíka dle čl. 1F c) Úmluvy o právním postavení uprchlíků

Author(s): Linda Janků / Language(s): Czech Issue: 4/2013

The article deals with application of the exclusion clause under Article 1Fc) of the Convention Relating to the Status of Refugees on terrorist suspects. This clause excludes persons, with respect to whom there are serious reasons for considering that he or she has been guilty of acts contrary to the purposes and principles of the United Nations. The article first analyses the notion of acts contrary to the purposes and principles of the United Nations and assesses its relation to the acts of terrorism. Then it turns to relevant issues of interpretation and application of the exclusion clause on terrorist suspects, particularly focusing on two dimensions of restrictive interpretation of the clause: (1) the character of acts to be subsumed under the exclusion clause in terms of their gravity and impact on international peace and security and (2) the position (ranking) of the person in relation to whom the exclusion clause may be applicable.

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Dohoda k energetické chartě jako klíčový nástroj mezinárodního energetického práva: 20. výročí jejího vstupu v platnost

Author(s): Martin Švec / Language(s): Czech Issue: 4/2019

The Energy Charter Treaty („ECT“) has proved to be a key instrument of international energy law. Given the 20th anniversary of the ECT’s entry into force, the author seeks to explore the principles on which the ECT is based and the historical context in which the treaty was concluded. Moreover, the author examines the ECT’s role in international energy against the background of recent developments of the energy sector. In particular, the paper is focused on the legal and political implications of the adoption of the EU’s Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Strategy in 2015 and the landmark judgment by the Court of Justice of the European Union in Slovakia v. Achmea BV for the ECT’s future.

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Vývoj konceptu nepřímé diskriminace ve Spojených státech amerických

Author(s): Tereza Skarková / Language(s): Czech Issue: 3/2013

The main purpose of this article is to present a basic overview of the history and current state of the concept of indirect discrimination, or disparate impact, in its birthplace, the United States of America. The article briefly covers all areas of law in which the concept is currently applicable, while it more closely focuses on Title VII of the Civil Rights Act of 1964 as it is in the context of employment law where the doctrine originated. The principal role was, and remains to be, that of the Supreme Court of the United States which in Griggs v. Duke Power (1971) interpreted the Act to proscribe not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The test formulated by the Court, which also served as an inspiration for its European counterparts, was however weakened by the Court itself in subsequent years. Most importantly, the concept of disparate impact as perceived in the U. S. nowaydays is not applicable in the context of the Equal Protection Clause. It is therefore still necessary to prove intent in order to find discrimination under this part of the Fourteenth Amendment to the United States Constitution. The burden and standard of proof have also changed considerably over time. The burden of persuasion now lies with the employee even after finding prima facie case, and the standard of proof for the employer shifted from business necessity to mere business justification. How far will the conservative Court go in its case law, or if the Congress steps in again as it did in the case of the Civil Rights Act of 1991 remains to be seen.

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Ohrožuje Belgie volný pohyb osob?

Author(s): Lucie Rytířová,Jana Tepperová / Language(s): Czech Issue: 2/2013

Coordination of social security within the European Union is mainly governed by Regulation (EC) No 883/2004 and Regulation No. 987/2009. Interpretation of the coordination rules is also influenced by decisions of the Court of Justice of the European Union. In December 2012, Belgian Parliament adopted a legislation amendment which enables Belgian institutions to rescind a certificate A1 without any communication with the country which has issued the certificate. In practice, a certificate A1 confirms application of a single legislation as one of the basic principles of coordination of social security and therefore, it plays a crucial role in compliance with the coordination rules. Coordination of social security is very important for ensuring free movement of persons. It is thus questionable, whether the free movement of person is at stake.

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Práva a povinnosti advokáta k mandantovi v právní úpravě Spolkové republiky Německo

Author(s): Lenka Řehulová / Language(s): Czech Issue: 2/2013

The paper is devoted to the issue of the legal and moral obligations of an attorney with respect to a mandant, which form the fundamental basis for legal profession, in the legislation of the Federal Republic of Germany. These rules of professional conduct are analysed in the terms of the two fundamental codes – Federal Lawyer´s order – Bundesrechtsanwaltsordnung (BRAO) and Rules of professional conduct for attorneys – Berufsordnung für Rechtsanwälte (BORA). I have particularly focused on the general professional duties of an attorney, the duty of independence and dispassionateness, the duty of non-representing the contradictory interests, the duty to be insured, the question of responsibility to a client for any damage, the right and duty to refuse to provide legal services and the duty of information. A great emphasis is placed on the elementary duty of confidentiality (non-diclosure), the duty of further education (as an inspirational aspect for the Czech legal regulation), the issue of attorney´s fee and the duties during the attorney´s custody of his client ´s money, securities or other assets. The paper is written in the form of an overview essay used the Anglo- Saxon style which gives main emphasis on the nonambiguity and clarity of statements.

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Postavení a účinky mezinárodních smluv v unijním právním systému se zaměřením na povahu práva WTO

Author(s): Radek Fröhlich / Language(s): Czech Issue: 2/2012

This paper deals with the position of international agreements concluded by the European Union in the European legal system. It puts emphasis on specifics of this source of law in the legal order of the Union. The attention is focused mainly on the possibility of applying provisions of international treaties as criteria for review of EU legal acts in the annulment proceedings. The paper presents the crucial case-law of the Court of Justice of the European Union in this area and attempts to assess its justness. The author concludes that the case-law of the Court of Justice unduly emphasizes the direct effect of international treaties and does not take into account whether the actions for annulment are brought by private individuals or by Member States.

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Ochrana spotřebitele v závazkových právních vztazích s mezinárodním prvkem uzavíraných přes internet

Author(s): Simona Trávníčková / Language(s): Czech Issue: 2/2011

The enormous development of concluding cross border consumer contracts via internet brings a lot of new legal issues on consumer protection. One of the major issues in the area of European consumer protection is whether the consumer protection contained in Council Regulation (EC) No 44/2001 (Brussels I) and Regulation (EC) No 593/2008 (Rome I) is sufficient with the respect to the new ways of noccluding noctracts (via internet). Therefore the paper firstly comments the compatibility between consumer protection in Brussels I and Rome I. Then it focuses on interpretation of the concept “directing activities to that country or to several countries including that country“ (used in art. 6 of Rome I and art. 15 of Brussels to define limits of consumer protection) with the respect to the contracts concluded via internet.

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Situace ozbrojeného konfliktu a svévolného násilí jako důvod pro přiznání mezinárodní ochrany

Author(s): Renáta Klečková / Language(s): Czech Issue: 1/2010

This article deals with different forms of protection in the international law in the situation of armed conflict or indiscriminate violence. The subsidiary form of protection is used to describe any status, other than Convention refugee status, which is afforded to persons who may/can not be returned to their country of origin. In the context of EU, it examines Article 15 para c) of the Qualification directive. Article 15 para c) of the Qualification directive states the conditions for the subsidiary protection in the events of the armed conflict. Those conditions are: 1) the country of residence of the person is in the situation of international or internal armed conflict, 2) applicant for the international protection is a civilian, 3) this person faced a serious and individual threat to his life or person from the reason of indiscriminate violence. This article deals with the concept of international and internal armed conflict, civilian person, combatants, crimes against humanity, genocide, ethnic cleaning. At the end I argue that Qualification directive in the Article 15 para c) limits international law.

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