Jednostranná nebo konkludentní? Problematické aspekty volby práva (nejen) v zajišťovacích instrumentech ve světle aktuální judikatury

Abstract

This article deals with cases of <i>unilateral</i> and <i>tacit</i> choice of law, as less common examples of choice of law. These are entirely separate categories. Unilateral choice reflects the fact that it is the result of the will of only one person, and typically appears in unilateral legal acts (such as a financial guarantee in Czech law). Tacit choice, on the other hand, indicates that the intent to choose the law was expressed in a non-explicit way. Choice of law can be at the same time both unilateral and tacit, although this will not occur very often in practice. In the case of unilateral legal acts in the field of contract and tort law, there is a debate whether their conflict of laws regime falls under the EU’s unified conflict of laws rules (Rome I or Rome II Regulation) or under national law. There is no clear decision on the issue by the CJEU. The Czech Supreme Court has recently been given the opportunity to comment on this and some other issues of unilateral and implied choice of law. However, the Court rather missed this opportunity. It avoided the question of whether the national law or the Rome I Regulation applies to unilateral legal acts similar to a declaration of guarantee by (unfortunately incorrectly) applying the Rome Convention. The Court also applied the rules for a bilateral choice of law to an apparently unilateral choice of law in a rather complex manner. Moreover, its conclusion that the choice subjecting the declaration in question to “Danish statutes” is only an implied choice and not an express one is at least questionable. The article critically assesses this decision and shows in what respects a different (and more correct) course of action should be followed.