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derecho comercial internacional, Apuntes de Derecho Privado Internacional

Universidad Carlos III de Madrid (UC3M)Derecho Privado Internacional

Asignatura: derecho internacional privado, Profesor: , Carrera: Derecho, Universidad: UC3M

Tipo: Apuntes

2013/2014

Subido el 22/06/2014

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Attendance: 50%
Participation in lectures: 50%
Presentations
Discussions
Test – three types of questions 50%
Two questions of private law and two of commercial law
Everything of private international law/commercial law
1. Concepts. Main Principles. Regulations of Business Law
1.a. New codification of Czech private law
1.i. Adopted in 2012 took effect this January 2014
1.1. New Civil Code (Act. No. 89/2012 Coll.)
1.2. Act on Commercial Corporations (Act
91/2012 Coll.)
1.3. New Act on Private International Law (Act
91/2012 Coll.)
1.b. Introduced new concept of Czech private law
2. Civil Code – main general sources of Czech private law
1.c. Basic source of Civil Code
1.ii. Applicable to everything in private la relationship
spheres sphere even with entrepreneurs and commercial
activities
1.d. General principles of private law (1º part): defining all the
basic terms
1.iii. Participant in private law relations (individual,
legal entities), legal positions and right of these participants
1.iv. Object of private law relations (things)
1.v. Legal acts an their validity, legal facts (time statue
limitation)
1.e. Family law (2º part)
1.f. Ownership and related issues (rights in rem including security
interests) succession law
1.g. Obligation (law contracts, liability for damage, unjust
enrichment, unfair competition)
3. Civil Code applicable to full extent to commercial relations including
1.h. Legal positions of participant to commercial relations
(entrepreneurs, companies, cooperatives)
1.i. Protection against unfair competition
1.j. Commercial obligations (contracts, liability for breach of
obligations)
4. Specifies of business relations included in special laws of private and
public law nature
1.k. Special regulations
1.l. Act on Business Corporation (this is applicable first and if not
regulates one must look in the CC)
Commercial Law and International Transactions
20/02/14 10:03
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Attendance: 50% Participation in lectures: 50% Presentations Discussions Test – three types of questions 50% Two questions of private law and two of commercial law Everything of private international law/commercial law

  1. Concepts. Main Principles. Regulations of Business Law 1.a. New codification of Czech private law 1.i. Adopted in 2012 took effect this January 2014 1.1. New Civil Code (Act. No. 89/2012 Coll.) 1.2. Act on Commercial Corporations (Act 91/2012 Coll.) 1.3. New Act on Private International Law (Act 91/2012 Coll.) 1.b. Introduced new concept of Czech private law
  2. Civil Code – main general sources of Czech private law 1.c. Basic source of Civil Code 1.ii. Applicable to everything in private la relationship spheres sphere even with entrepreneurs and commercial activities 1.d. General principles of private law (1º part): defining all the basic terms 1.iii. Participant in private law relations (individual, legal entities), legal positions and right of these participants 1.iv. Object of private law relations (things) 1.v. Legal acts an their validity, legal facts (time statue limitation) 1.e. Family law (2º part) 1.f. Ownership and related issues (rights in rem including security interests) succession law 1.g. Obligation (law contracts, liability for damage, unjust enrichment, unfair competition)
  3. Civil Code applicable to full extent to commercial relations including 1.h. Legal positions of participant to commercial relations (entrepreneurs, companies, cooperatives) 1.i. Protection against unfair competition 1.j. Commercial obligations (contracts, liability for breach of obligations)
  4. Specifies of business relations included in special laws of private and public law nature 1.k. Special regulations 1.l. Act on Business Corporation (this is applicable first and if not regulates one must look in the CC)

Commercial Law and International Transactions

1.vi. Regulates specifics od establishment, structure and existence of business corporations as a special law in relation to Civil Code 1.m. EC Law 1.vii. Became part of Czech law after accession 1.viii. Treaties and Regulations are directly applicable. Directives have to be implemented, and have been implemented even before accession.

  1. Specific law protecting economic competition on capital market 1.n. Antitrust regulation (Act No 143/2001) 1.o. Capital markets (Act No 256/2004)
  2. Entrepreneurs 1.p. Regulation of business relations – law of professionals (entrepreneurs) 1.q. Entrepreneurs is a person (entity) professionally engaged in a business activity 1.r. Business activity 1.ix. A continuous activity 1.x. Carried out independently 1.xi. At his own risk , in his own name 1.xii. For the focus of gaining profit 1.s. Professionally engaged means 1.xiii. The business activity is carried out on the basis of an authorization granted in accordance to some public laws. The most common trade authorization – trade license 1.t. Individuals / legal entities 1.u. Legal Entities – corporations, foundations 1.xiv. Main features 1.4. Defined organizational structure 1.5. Own assets 1.6. Ability to make decisions 1.7. Legally accepted objects 1.8. Ability to gain rights and assume obligations granted by law 1.v. Main forms of Entrepreneurs 1.xv. Business (commercial)companies – legal entities 1.xvi. Sole entrepreneurs 1.w. Distinguishing features of entrepreneurs 1.xvii. Seat/registered office – place of doing business 1.xviii. Trade name 1.x. Legal Entities – seat (registered address) 1.xix. Point of contact – factual place of headquarters – known to the public 1.y. Real seat v. registered (statutory) seat of legal entity 1.xx. Real seat address headquarters main administration and governance

1.xxv. Claim to desistance from further use of the trade name and to eliminate consequences of unlawful use 1.xxvi. Claim to damages and so surrender to unjust enrichment 1.xxvii. Remedies provided for the protection against unfair competition appropriate satisfaction, publication of judgment

  1. Acting on behalf of entrepreneur 1.pp. Entrepreneur – individually can act 1.xxviii. By their own acts (directly) or 1.xxix. Through legal representative acting on the basis of a power of attorney (proxy or more official legal representative) 1.qq. Entrepreneur – legal entity (companies) can act towards 3º persons. It is an artificial creation without it Own decision making power 1.xxx. Through legal representatives (agent) 1.9. Statutory body 1.10. Employee and other persons entrusted with performance of a certain activity within the company 1.11. Other persons on the trust of power of attorneys
  2. Statutory Body 1.rr. Is the main executive body of a legal entity/corporation/ business company which is authorized to act on behalf of the company in all matters 1.ss. The most typical or characteristic feature is its ability to act in all matters which cannot be restricted with internal regulations with effect to third parties 1.xxxi. Ex. They can enter into contract with everything that relates to the company. But an internal regulation restricts their power. But if they are not follow by the board of director. The contract will not be affected and will still be binding.
  3. Employee and other representatives 1.tt. General rule: Employees may represent the company to the extent which is appropriate to their position and task as it is known to the public (applicable to all legal entities, foundations… ) 1.xxxii. Repeated in the Act of Business Corporations 1.uu. Acting in excess of representative power 1.xxxiii. Different consequences depending on a type of representation 1.xxxiv. Statutory body – acts in all matters 1.12. Cannot exceed its powers 1.xxxv. Employees and other representative

1.13. May act on behalf of the company only in accordance with its own task 1.14. The excess acts are also binding on the company unless the other party knew about the excess 1.xxxvi. If the law requires the approval of the supreme body (general meeting) 1.15. Invalidity may be claimed within period of time set by the law

  1. Special General Power of Attorney – Procuration 1.vv. Special proxy 1.ww. Authorized to perform on behalf of the company in all acts even though a special power of attorney might be other wise required 1.xx. Procuration must be registered in the commercial register 1.yy. (…) ask remy*
  2. Commercial Register 1.zz. Public register – maintains data concerning entrepreneur and data prescribed by law 1.xxxvii. As the main rule of commercial relationship is publicity 1.16. Material publicity – any entry in commercial register can be claimed against third person only after the publication (protection of reliance in good faith on published data) 1.17. Formal publicity – commercial register is available to anybody any entry must be published 1.xxxviii. Commercial register is maintained by courts 1.xxxix. Available by electronic means 1.xl. Who should be registered? All forms of entrepreneur 1.xli. What must be registered? Termination company, change of statues… 1.xlii. Main purpose: secure transparency and equal position of parties to business relations

She proceeds under Czech law. The testament can be made in handwriting. But the Private International Law Act: which law is the governing? 1.vi.a.Section 18 paragraph 2 (pg. 261) 1.vi.a.i.Citizenship of the testator: State of New York 1.vi.a.i.1. Valid only if made by a member of military service during was 1.vi.a.ii.Under this law, the testament was not authentic

  1. Kinds of rules included in Private International Law 1.vi.b.Conflict rules 1.vi.a.iii.Which indicate the applicable law (Handbook, no substantive law solution) 1.vi.c.Special substantive 1.vi.a.iv.Ad hoc for PIL (International Conventions, European, Nations) 1.vi.a.v.Ex. testament given by law of citizenship of testator when diseased 1.vi.a.vi.CISG: rules of substantive law; ex. parties bound to any usage the had agreed upon) 1.vi.d.Rules governing status of foreigners: rights 1.vi.a.vii.Pg. 263 status aliens, section 32 1.vi.e.International civil procedure rules: courts/arbitration/alternative (mediation) 1.vi.a.viii.Section 37 (pg. 264)
  2. Elements of conflict rules 1.vi.f.Referring Sections 1.vi.a.ix.A scope of legal issues which include questions to which a conflict rule applies 1.vi.g.Connection 1.vi.a.x.Particular legal question is connected to some legislation or legal order 1.vi.h.Connecting factor (Point of conflict) 1.vi.a.xi.Natural persons, domicile, seat of the person, place of incorporation 1.vi.a.xii.Law of obligations 1.vi.a.i.2. Choice of law – Parties decide 1.vi.a.xiii.Activity 1.vi.a.i.3. Place of conclusion of the contract, place where contract is performed (Agency contract) 1.vi.a.xiv.Indirect subject matter 1.vi.a.i.4. House in Spain 1.vi.a.xv.Direct subject matter 1.vi.a.i.5. Nationality
  3. Example: SECTION 3 PG 247 1.vi.i.Referring question 1.vi.a.xvi.Legal Capacity 1.vi.j.Connection

1.vi.a.xvii.Shall be governed by the law of the state on which the national belongs 1.vi.k.Connecting factor 1.vi.a.xviii. Nationality

1.xvii. BASES OF LEGISLATIVE ACTIVITY OF THE COMMISION 1.l. Rules that concern jurisdiction

  1. Doctrines
  2. Czech Private international Law 1.m. Vienna Draft was prepared by three professor but wasn’t adopter because of the WWI 1.xviii. It’s the bases of PIL

1. GENERAL PARTNERSHIP

1.a. (…) ask for notes 1.b. Rights and duties 1.i. Non material Rights 1.1. Each member is authorized to manage the company and act on behalf of the company in all matters (statutory body) 1.a. All members are in this position 1.2. Founding agreement may grant the management to one of the members 1.b. The other general members cant represent the company outside or make decisions in the company business 1.i. Doesn’t mean that the are fully our the company´s members 1.3. “Managing members” are liable to other members for proper management of the company 1.4. “Non-managing” members have the right to be informed and to inspect the books and documents of the company 1.5. Right for one or more members to manage to be terminated 1.c. Agreed on the founding agreement 1.d. By court upon request of any other member 1.6. “Managing member” may resign from his position any time 1.7. Matters pertaining to the existence of the company may be decided only by all the members or majority of members states in the founding agreement 1.8. Examples of such decisions 1.e. Change of founding agreement 1.f. Termination of the company 1.g. Approval of financial statements 1.h. Disposition of major assets 1.i. Appointment of one or more “managing members” 1.j. Other matter stated in founding agreement 1.9. Members decide unanimously unless founding agreement states otherwise 1.ii. Property rights 1.10. During company’s life 1.k. Right to participate in profits of the company each member participate equally in profits unless founding agreement otherwise

Commercial Law 20/02/14 10:

1.v. Member has right to be compensated by other member to proportion to their liability 1.iii. If the company is unable to compensate the can go to other members of the company to compensate in their proportion of participation 1.16. Any member may resign from company through change of founding agreement in such case is liable for debits arisen before resignation 1.17. New members can accede through change of founding agreement such member is liable for company debts even before the accession 1.v. Specific remedies (members violate the duties with affects the other members causing damage to the company) 1.18. Each member is authorized for 1.w. Claim on behalf of the company damage caused to the company by other member 1.x. Seek with court decision on termination of the company for important reasons in particular if the other member materially violates his obligations 1.y. Company may seek with court expulsion of the member who materially violates his obligations 1.c. Termination of general partnership 1.vi. For reasons applicable to all companies 1.19. Decision of all members to terminate the company with liquidation 1.20. Decision all members on termination through transformation 1.21. Decision of court 1.vii. For reasons specific only to general partnership 1.22. Upon the death of a member (natural person) 1.23. Upon termination of a member (legal entity) 1.24. Upon declaration of bankruptcy over assets of a member 1.viii. Unless founding agreement and agreement of remaining member allow for continuation of a company

2. LIMITED PARTNERSHIP

1.d. General characteristics 1.ix. Personal company with certain capital features

1.25. Two types of partners- mixed legal nature personal and capital 1.z. Unlimited partners 1.aa. Limited partners 1.x. Can be created only for business purpose by at least one limited and one unlimited founder 1.xi. Personal involvement of unlimited members reflected in company’s management 1.e. Establishment 1.xii. Legal act necessary for establishment – founding agreement 1.xiii. Incorporation – upon registration in the Commercial Register 1.xiv. Limited members obliged to make capital contributions during the process of establishment before the incorporation, in the amount set forth in founding agreement no minimal amount stated by law 1.26. Monetary for or in kind contributions 1.xv. Member (partners) – both individual and legal entities 1.27. Not possible that the company is created by a sole founder, by definition 1.f. Corporate organization 1.xvi. No specific organization 1.28. No specific corporate bodies created 1.29. Management of day to day business carried out by unlimited members (partners) 1.30. Other matters decided by unlimited and limited members jointly majority voting pursuant in founding agreement 1.31. Founding agreement may be changed by agreement of all members unless founding agreement provides for majority of unlimited and limited members 1.xvii. Corporate organization 1.32. No specific corporate bodies created 1.33. Management of day to day business carried out by unlimited members (partners) 1.34. Founding agreement may grant the management right only to one or more unlimited member 1.35. Right of one or more unlimited members to manage the company can be terminated 1.bb. By decision of other unlimited members as agreed in the founding agreement 1.cc. By court upon request of any unlimited member if managing member grossly violates his duties 1.36. Managing member may resigns from his position

1.42. Limited members – duties similar to duties of members of limited liability company 1.ll. Obligation to provide contribution agreed in the founding agreement into the company’s assets 1.43. Limited member do not share losses of the company unless provided for this in the founding agreement 1.xx. Liability of members for obligation of a company 1.44. Unlimited members are personally and fully liable for obligations of the company 1.45. Liability of unlimited members as joint several and unlimited 1.46. Limited member is liable jointly and severally with other members (unlimited and limited) for obligations of company up to the amount his unpaid contributions as registered in commercial register. 1.xxi. Specific 1.47. Founding agreement may stipulate for limited partners are liable for the obligation of the company up to the amount set forth in the founding agreement (liability amount) – only higher that their contributions 1.48. Liability amount is registered in Commercial Register 1.49. Liability amount may not the lower than the aggregate of contribution of limited partners 1.xxii. Termination of limited partnership 1.50. For reasons applicable to all companies a. Decision of all members to terminate the company with liquidation b. Decision all members on termination through transformation c. Decision of court 1.51. For reasons applicable to general partnership with regards to unlimited members a. Upon the death of a member (natural person) b. Upon termination of a member (legal entity) c. Upon declaration of bankruptcy over assets of a member 1.52. Death, termination or bankruptcy od limited partner doesn’t not affect the existence of the company

  1. Elements of a conflict rule 1.a. Conflict rule: Indicate the applicable law – only aim of the conflict rule 1.b. Parts 1.i. Referring section 1.1. “Rights related … property” 1.ii. Connection 1.2. “Shall be … located” 1.iii. Connecting factor 1.3. Laws of location
  2. Principle of the application of foreign law under Czech law 1.c. Uniform conflict rules in UE 1.d. Complicated 1.iv. Issue of duty to apply foreign law 1.4. In EU members it is not applied equally 2.a. Continental (1…5 handout) 2.i. If the conflict rules states it, it’s a duty ex officio 2.ii. Applied as law 2.1. All the judges have the duty to apply in the same way as the local judge would (taking into consideration case law) 2.2. Only in cases of public order can the judge deviate from the law 2.iii. Remedies 2.3. The same as in domestic solutions 2.b. Common law 2.iv. Party that wishes has to plead it and has to adduce the contents 2.4. Judge doesn’t work on own initiative 2.v. Problem: diversity on EU members about foreign law 2.vi. As a matter of fact not a matter of law
  3. Conflict rules and direct substantive rules in Czech law 1.e. Conflict rules 1.v. Rules indicating the applicable law 1.vi. Direct substantive law 1.5. Stipulate obligation and duties 1.6. Applicable directly 1.7. Forms part of PIL (they are not conflict rules) 2.c. Mostly international conventions
  4. Public Policy 1.f. Important tool of Public Policy: Public Policy Reservation

Private International Law & International

Transaction 13/03/14 14:

  1. General Characteristics 1.a. Legal entity 1.b. Created by one or more founders (individuals or legal entities) 1.c. May be created for business but also for other purposes 1.d. Must have registered capital in the amount at least 200 CZK or the amount determined by founding agreement; members required to make capital contributions in the amount stated in founding agreement, no minimal amount stated by law 1.i. Registered capital is some of information of investment capital, but can be used any time by the company from the existence. Creditors are protected by other regulations, as a guarantee is not so important 1.e. Liability of members for the obligations of the company is limited 1.f. Capital company 1.ii. Specific organizational structure prescribed by law
  2. Establishment 1.g. Legal act necessary for establishment- founding agreement or founding deed 1.h. Incorporation – upon registration in the commercial register 1.i. Member obliged to make capital contribution (mandatory) each in the amount stated in the founding agreement 1.j. Repeated performance (works) or services cannot be used as a capital contribution 1.iii. Unlike the general partnership 1.k. No other limitation as for legal position or number of members
  3. Members participation in company 1.l. Rights and duties of members incorporated (embodied) in ownership interest 1.iv. The Position Participation of the shareholders/ members, is sort of incorporated in the shares (ownership interest) 1.m. Ownership interest represents: 1.v. Right to participate in management company 1.vi. Right to share in profits of the company 1.vii. Right to share in liquidation balance in case the company’s liquidation 1.n. (Capital)Extent of member’s right is determined by the size of the member’s capital contribution, unless the founding agreement states otherwise (ex so It is up to the members to provide the members with different position and participation in profits..) 1.viii. (personal characteristic) position in the company may be determined by other criteria 1.o. As it is a capital company- Ownership interest is transferable to other members or persona outside the company, transferability may be restricted by founding agreement

Limited Liability

Company 20/02/14 10:

1.ix. Transfer ownership interest to other member is possible without limitations

  1. As the transfer would likely not affect the life of the company 1.x. Transfer of ownership interest to person outside the company is subject to approval by general meeting 3.1. Personal feature as members can get personally involved in the bodies of the company other might be interested 3.2. Effective after granted approval 3.3. Must be explicitly provided for in the Founding agreement 1.xi. Founding agreement may stipulate more kinds of ownership interests (with different rights) 1.xii. Each member may have more ownership interests 1.xiii. Ownership interest may be represented by share certificate – security issued in the name of its holder 1.xiv. Transferability of ownership interest is evidenced by share certificate cannot be restricted 1.xv. Company maintains list of members (shareholders)
  2. Company’s structure 1.p. Corporate governance is carried on by specialized corporate bodies 1.q. General Meeting 1.xvi. Supreme body comprised all members of the company 1.xvii. Power of general meeting 3.4. Decision pertaining to existence of the company 4.a. Changes in the founding agreement if required by founding agreement 4.b. Increase or decrease of registered capital 4.c. Termination of a company if required by founding agreement 3.5. Decision concerning rights and obligations of members participation in profits 4.d. Participation in profits 4.e. Determination of voting requirements 4.f. Imposing duty to contribute to company’s assets amount in excess of capital contributions 3.6. Decisions concerning corporate governance 4.g. Election of executive directors or members of supervisory board