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Legal Basis of Parties’ Duty to Maintain Confidentiality in International Commercial Arbitration

Author(s): Klára Drličková / Language(s): English Publication Year: 0

Confidentiality is traditionally taken as one of the main advantages of arbitration and is often automatically connected with it or it is simply assumed. However, there are lot of questions that remain unsettled. One of key issues is the legal basis of parties’ duty to maintain confidentiality in international commercial arbitration. The aim of this paper is to analyse the legal basis of the parties’ obligation to maintain confidentiality. At present, it is widely accepted that notions privacy and confidentiality have different meanings and the privacy itself does not ensure confidentiality of arbitration. In various jurisdictions, three positions as to what can constitute the legal basis of the parties’ duty to maintain confidentiality occur.

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Considerations on the Company’s Name and the Trademark as Parts of the Trade Fund

Author(s): Cristina Cojocaru / Language(s): English Publication Year: 0

The identification attributes of a company belong to its trade fund and are mandatory for the registration and development of the activity. Sometimes these elements borrow characteristics, but they must be used within the limits established by the legal provisions. The recent decision of the High Court of Cassation and Justice no. 104 of 25 January 2022 brings into focus the company’s name and the trademark as indispensable elements for conducting commercial activity, as well as the conditions for using the company’s name as a trademark. Without attempting to treat the subject exhaustively, the article highlights some of the most important aspects of the identification attributes from the perspective of corporate laws.

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Adherence to the Principle of Proactivity to Ensure a Healthy Competitive Environment

Author(s): Manuela Niță / Language(s): English Publication Year: 0

The frequency of the infrigement of competition rules by committing anti-competitive practices, led the competition authorities, both national and European, to identify both measures to prevent possible anticompetitive practices and measures to identify and sanction such serious deviations from normal conduct, healthy in business. In the field of competition, we find a rich legislative package, but practice has shown that beyond normativity, in order to be effective, a proactive attitude of companies is also needed, and in this study, we proposed to realise a depth analisys regarding this isuess. The principle of proactivity in the matter of competition is neither promoted nor respected enough, as is natural, so that companies in their actions refrain from any action/inaction that could endanger the competitive market. In our research, we want to show the concrete ways in which this principle is respected, who is competent for its application and what are the effects on the competitive environment. We will also show what is the role of the competent authority and its degree of involvement in this issue, identifying possible solutions that could be implemented to give added value to this principle.

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Risk Assessment for Power Purchase Agreements as a Tool for Promoting Green Energy

Author(s): Adrian D. Tanţău,Elena Niculescu / Language(s): English Publication Year: 0

In a world where the climate neutrality commitments is increasing and the states are starting to take serious measures regarding the achievement of a zero carbon economy and the stopping of pollution, renewable power purchase agreements can be a very suitable solution for reaching these targets. Although we can see an improvement of the demand of these contracts, the energy market has some gaps, especially from a legislative point of view. The goal of this research is to identify and analyse the risks that may occur in the performance of the PPAs as a tool for promoting green energy. For this research there are used the comparative analysis and survey based on questionnaires completed by different categories such as producers, financial and energy experts, industrial and small consumers. The article reduces the gap regarding the understanding of the associated risks of the PPA, on one side, ans on the other side it tries to find the most suitable way in which these could be divided between the parties in the contract. The results suggest that although there have been made some changes in the legal framework regarding these types of contracts, there is still place for improvement, the lack of confidence in the law being the main factor that leads to the hesitation to enter in such contractual relations non-legislation or insufficient legislation of the PPA representing one of the risks most often assumed by the parties. The implications of the study are at the theoretical level: approaching a little-studied topic in the context of the development of some legal frameworks in order to promote green energy, clarification of some theoretical aspects regarding the assumption of contractual risks.

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Legal Regime of Competition in Audiovisual. Comparative Aspects

Author(s): Ovidiu Horia Maican / Language(s): English Publication Year: 0

The exercise of competition in the audiovisual field is closely linked and cannot be separated from the maintenance and expansion of pluralism in the mass media field. Media pluralism has a crucial role for the democratic process within the community space. The European Union is determined to protect media pluralism to the same extent as the right to information and freedom of expression. As an expression of these realities, the European Commission elaborated in 1984 a Green Paper on the creation of a Common Market in the field of radio and television, and in December 1992 a Green Paper on media pluralism and concentration within the internal market. Reports in this sense were developed by the European Parliament and the Council of Europe. The application of competition legislation in the audiovisual field plays an important role not only in preventing the creation of a dominant position or the abuse of a dominant position, but also in ensuring the access of new competitors (competitors) to the market. Thus, pluralism is ensured, both in the traditional television markets and for the new markets.

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Abusive Clauses and Challenge to Enforcement Proceedings in the View of the Court of Justice of the European Union

Author(s): Cătălin Lungănașu / Language(s): English Publication Year: 0

The present study aims to present the peculiarities of invoking unfair terms in the conditions in which the contract becomes an enforceable title and the consumer acquires the status of a foreclosed debtor. In such a circumstance, different institutions of substantive and procedural law both become incidents, without, however, being a full timing. Moreover, certain inconsistencies are felt throughout the legal context in the light of the case-law of the Court of Justice of the European Union and the principle of the priority application of European law. As a result, without exhausting the subject, the present research analyzes the specifics of the incidental sanction in the case of finding the unfairness of the contract terms both depending on the evolution of the national legislation specific to the challenge to enforcement and through references to the recent judgments of the CJEU.

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Drag-along and tag-along clauses in shareholder agreements - Czech law perspective

Author(s): Bohuslava Horáková / Language(s): English Publication Year: 0

Drag-along and tag-long provisions are customary components of rights granted to investors within the terms of venture capital and private equity transactions. The drag-along right entitles a shareholder or a group of shareholders wishing to sell their shares in the company to, under certain conditions, compel all other shareholders to sell their shares under the same terms. Conversely, the tag-along right ensures that, again under certain conditions, shareholders wishing to sell their shares cannot do so unless they also arrange for sale of the other shareholders’ shares. Both drag-along and tag-along clauses are adapted from common law jurisdictions wherein the clauses often form a part of constitutional documents of companies, i.e., usually articles of association or certificates of incorporation. When used in the Czech Republic and other civil law jurisdictions, drag- and tag-along clauses are primarily included in shareholders’ agreement as agreements standing aside articles of association, i.e., outside of corporate constitutional documents. This paper assesses the functionality of the drag- and tag-along clauses in the context of Czech law and analyses the challenges imposed by the local law on the effectiveness and enforceability of such clauses.

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Preventive Restructuring: Business Viability in Impending Insolvency

Author(s): Klára Vítková,Ondřej Zezulka / Language(s): English Publication Year: 0

The Directive (EU) 2019/1023 on restructuring and insolvency lays down rules on preventive restructuring frameworks available for debtors in financial difficulties when there is a likelihood of insolvency, with a view to preventing the insolvency and ensuring the viability of the debtor. The impending insolvency represents a critical condition on the verge of total economic and business failure. Until now, the Czech legal system has only offered the tools of formal insolvency proceedings to resolve such difficulties (particularly the concept of formal reorganization). The article examines whether the impending insolvency can also be averted by using the new procedure of preventive restructuring and to what extent the maximum degree of economic distress of the debtor may be still accepted. For such purposes, the authors assess a concept of a viability test.

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Exclusivity clause in lease agreements for commercial premises from the perspective of Slovak and European competition law

Author(s): Martin Winkler / Language(s): English Publication Year: 0

A relatively frequent practice when concluding lease agreements for commercial premises in shopping centres is the tenants' requirement towards lessors for so-called exclusivity, i.e. the requirement not to lease commercial premises in the same shopping centre to their competitors or vice versa – the landlords' requirement towards tenants to include a so-called radius clause in lease agreements, where the tenant may not conclude a lease agreement for another commercial premise in a certain area within a specified distance from the shopping centre. In this paper, we look at this issue from a competition law perspective. A lease agreement with an exclusivity clause or radius clause may fulfil the defining features of an agreement restricting competition, which is prohibited under Article 101 of the Treaty on the Functioning of the EU and Section 4 of Slovak Act No. 187/2021 Coll. on the protection of economic competition. Although the courts in the Slovak Republic have not yet dealt with this issue, it has become the subject of judicial review of decisions of antimonopoly offices in other European countries and also the Court of Justice of the EU has entered into the valid legal regulation with its decisions. The aim of this paper is to define, after an analysis of the valid legal regulation and the case-law in several European countries and of the Court of Justice of the EU, the criteria under which lease agreements with exclusivity clause may be considered to be in compliance with European and Slovak law.

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Selected aspects of Compensation in the Dieselgate case in Germany

Author(s): Tomáš Brandejský / Language(s): English Publication Year: 0

In September 2015, it was revealed that the German company Volkswagen AG had installed a so-called defeat device in more than 11 million vehicles between 2009 and 2015. The purpose of this device was to detect that the vehicle is being subjected to a laboratory emissions measurement and activate a low-emission mode for such a case. In normal operation, however, the emissions of affected vehicles greatly exceeded the limits set by relevant EU regulation. Courts around the world are still hearing claims for damages from millions of affected owners, mainly on the grounds that they were misled when they bought the vehicle that it met the mandatory emission standards. The aim of the paper is to explore insofar the reasoning developed by the German courts may be applied by other Central European courts, in particular the Czech ones. To this end, the paper will describe and analyse the German legislation and the case law of the Court of Justice of the EU (CJEU) and the German courts and also compare the wording of the corresponding Acts applicable to awarding damages for misleading consumers. The chosen task was addressed by means of reviewing relevant legislation, court decisions and academic texts. The research carried out revealed that, although a substantial part of the problems have already been resolved, some issues are still open and await the final word from the CJEU. The conclusions of the German courts are also applicable to the Czech legal environment. The results of this work provide an understanding of how the German justice has dealt with the claims of injured purchasers, and also to what extent are conclusions of German courts applicable to the Czech legal environment.

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Court practice in disputes over customary rent in a situation of dominant or more favourable economic position of the landlord

Author(s): Michal Pohl,Vít Švestka,Lukáš Bumbálek / Language(s): English Publication Year: 0

This paper examines how the determination of the local customary rent has historically been carried out through court decisions in areas where the landlord has a dominant or economically more advantageous position, especially in terms of the criteria for determining the amount of customary rent and the practice of the courts in taking into account the position of landlords (dominant position under the Act on Protection of Competition or more favourable economic position), its possible abuse in determining the amount of customary rent and the reflection of the phenomena of competition resulting from the position of the dominant company, such as e.g. „price leading“. The issue of rent increases by the court is examined in the cases of former corporate apartments privatised to investors in the rental business, where, if no rent increase was agreed by the parties, only the court was entitled to determine the rent pursuant to Section 2249(3) of the Czech Civil Code. The authors argue that the legislative regulation of customary rent and subsequent case law have led to an erosion of fundamental constitutional and legal guarantees, as well as to economic inefficiencies.

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Проблемни въпроси относно приложението на чл. 140, ал. 1 и 3 и чл. 231, ал. 3 ТЗ за вписванията на решенията на общото събрание в търговския регистър

Author(s): Grigor Naydenov Grigorov / Language(s): Bulgarian Publication Year: 0

Market security requires special provisions about entry into the Commercial register concerning merchants. These provisions encompass limited listed facts subject to entry. By reason of that if the fact is not subject to entry such entry is null. The main goal of the legislation is to protect the public interest by gaining genuine information about the merchants and their activity. The entry of facts in the Commercial register addresses the third parties acting in good faith. Even the Supreme Court of Cassation has interpreted the relevant provisions in a decision № 1/2002, they still are unclear. That’s why the subject matter of the report is the application of art. 140, para. 1 and 3 and art. 230, par. 3 of the Commercial Law (CL) concerning the entries in the Commercial register relating to the joint stock company and limited liability company. By practical reasons the report predominant deals with the application of art. 140, para. 1 and 3 CL. It is discussed whether the subject matter of the entry can be the General Assembly decisions and what is the meaning of "entry into force" according to the above-mentioned provision.

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Валидиране на действия, извършени от името на търговец без представителна власт

Author(s): Miroslav Dimitrov / Language(s): Bulgarian Publication Year: 0

The report deals with some issues regarding the scope of application of the provision of Art. 301 of the Commercial Law (CL) and the rule character as well. According to that provision the acts of an unauthorized agent performed on behalf of a merchant seems to be affirmed tacitly. The author argues that the provision of Art. 301 of the CL establishes irrebuttable presumption. The main thesis is for application the same rule to non-commercial transaction as the acts are performed by unauthorized agent on behalf of a merchant. The author criticizes the narrow interpretation by jurisprudence of that provision bringing argumentation in the opposite. He argues the scope of application of Art. 301 of the CL also regarding an arbitration agreement or a clause included in a commercial contract.

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"Злоупотреба с право" vs. "злоупотреба с интерес" при търговските сделки

Author(s): Zhana Koleva / Language(s): Bulgarian Publication Year: 0

The subject matter of this report is the concept of abuse of right (Art. 289 of the Commercial Law) compared with these of abuse of interest (Art. 303a, Paras 1-2 and Art. 309a, Para 3of the Commercial Law). Both abusive acts affect commercial transactions but are sanctioned in a different way by the law. Therefore, the abuse of interest seems to be a distinct concept. Whether is so or not, it is currently being discussed in this report. Both abusive acts are examined in respect of community acquis finding the right answer.

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За лихвата при договора за текуща сметка

Author(s): Blagoy Zlatanov / Language(s): Bulgarian Publication Year: 0

Due to the law is required to be paid the interest rate by commercial transactions even it is not agreed by the merchants as parties to the contract. Nevertheless, in some cases that rule is not applicable. Therefore, the main disputable question in the doctrine and case law is whether in general by a current account agreement the interest (usura) on due amounts included in an account (a conto) can drop.

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Производството по несъстоятелност в контекста на правото на справедлив процес по чл. 6, ал. 1 ЕКПЧ

Author(s): Neli Madanska / Language(s): Bulgarian Publication Year: 0

The report examines commercial bankruptcy through the prism of the fundamental right to a fair trial protected by Article 6, § 1 of the European Convention on Human Rights, and aims to highlight the principles established in the jurisprudence of the European Court of Human Rights (the criteria for a reasonable duration of bankruptcy proceedings, the right of access to the court, the positive obligations of the state to provide effective means of protection to the debtor, creditors, and bankruptcy table authorities, etc.). Where appropriate, a parallel will be drawn with the national legislation and case law.

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Security Testing for E-Commerce Applications

Author(s): Alexandru-Petrișor LAZĂRA / Language(s): English Publication Year: 0

Over the past decade, as the e-Commerce market has evolved into a shopping ecosystem involving multiple devices and store concepts, retailers have been continuously innovating the online shopping experience introducing convenient features like multi-device optimizations, product customization, quick and secure checkout processes, or recurrent payments to attract more customers and influence purchase decisions. The main guidelines that are followed in this paper are revolving around security testing and how it can be performed in the form of manual and automated testing, with aid from automated security tools. This paper looks at the threats e-Commerce Applications are facing in regards with cybersecurity and intends to assist preventing vulnerabilities being exploited by malicious intended users by showing the importance of performing security testing to identify weaknesses, mitigate risks and to raise awareness of the importance of strong security measures and procedures.

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The structure of limited liability companies with low registered capital

Author(s): Kateřina Mičudová / Language(s): Estonian Publication Year: 0

The extensive recodification of private law in the Czech Republic, which was actively taking place primarily from 2002 to 2012, was completed on January 1, 2014, when Act No. 89/2012 Coll., the Civil Code, and subsequent Act No. 90/2012 Coll., on Commercial Companies and Cooperatives (Business Corporations Act), came into effect. Since that date, besides other things, the amount of minimum registered capital necessary for setting up limited liability companies has changed. At present, the minimum member´s contribution is CZK 1. The paper aims to analyse the structure of limited liability companies with registered capital less than CZK 200,000. The first chapters will clarify the reasons that had led to the reduction of the minimum amount of registered capital, and also the advantages and disadvantages that this reduction has brought about. The next chapters will examine the distribution of companies with low registered capital by individual regions and industrial sectors in the Czech Republic. The paper will also answer the question of whether there is a relation between the amount of registered capital and the territorial, or more precisely sectoral structure of limited liability companies. A separate chapter will deal with the analysis of companies with registered capital from CZK 1 to CZK 1,000.

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Legal Background for an Expert Witness to a Corporate Name Valuation

Author(s): Roman Skalicky / Language(s): English Publication Year: 0

According to American Marketing Association, brand is a name, term, design, symbol, or any other feature that identifies one seller's good or service as distinct from those of other sellers. A corporate name is one of the possible forms of the brand. In the sense of the Czech Civil Code, a corporate name is a name under which the entrepreneur is registered in the commercial register. An entrepreneur may not have several corporate names. The role of an expert witness is to provide the court with an independent and neutral assessment (e. g. valuation) based on his expertise. The aim of this paper is within the legal system of the Czech Republic to define legal background of the institute of a corporate name so that it can subsequently result in a reliable valuation by an expert witness. For this purpose, the paper examines the legal nature of a corporate name and its possible dispositions that might require an expert valuation.

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ПОСЛЕДИЦИ ОТ ОТКРИВАНЕ НА ПРОИЗВОДСТВОТО ПО СТАБИЛИЗАЦИЯ НА ТЪРГОВЕЦ

Author(s): Meriyam Sapundzhieva / Language(s): Bulgarian Publication Year: 0

In the present scientific article are discussed the consequences of opening of preventive restructuring proceedings of a merchant – namely discussed are the judiciary act, issued by the court and what are its aims and legal consequences, the legal consequences regarding the merchant, the creditors and third persons,and lastly the consequences regarding the limitation periods.

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