ACTIO PRO SOCIO S CUDZÍM PRVKOM
Actio pro socio with foreign element
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The paper deals with the analysis of derivative action (actio for socio) with a foreign element. Determination of jurisdiction and the law applicable to the actio pro socio is not a priori clear. As for jurisdiction, the problem seems to be a distinction between contractual and non-contractual claims, which is a key moment for the assessment of the so called special jurisdiction according to Brussels I Regulation. Regarding the applicable law, it was necessary to distinguish the law applicable for the instrument (derivative action) and for the claim that it is enforced through this instrument. When determining the law applicable to the tool, it was observed that the derivative action causes qualifying problem with regard to possible assessment of the tool as a procedural. It was argued that some aspects of actio pro socio will be procedural in nature (court will therefore apply its domestic law, e.g. the costs), other aspects are more likely substantive in nature (the court has to apply the conflict rules, e.g. subject entitled to file actio pro socio, possible defendants and pursued claims). In the next step (determination of the applicable law) we argued that the relevant questions are excluded from the scope of the European conflict rules (Regulation Rome I and Rome II). In the absence of unified conflict rules, the European court must resort to the domestic rules. In case the jurisdiction of Slovak courts would be established, it is necessary to analyse the Slovak national conflict rules. The Slovak court will apply the law of the state where the legal person was incorporated (both for the substantive aspects of the actio pro socio and for the claim that is enforced through it).
361 – 376
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