Browsing by Subject "Master's Programme in International Business Law"

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  • Wesanko, Jyri (Helsingin yliopisto, 2021)
    Abstract The two globally leading anti-corruption acts, the United States’ Foreign Corrupt Practices Act (‘FCPA’) and the United Kingdom’s Bribery Act, stand at the forefront of international fight against corruption. These acts prohibit foreign bribery of public officials with an extraterritorial jurisdiction. During the past years, enforcement activities of these laws have significantly grown. Only during 2020, the total penalties for violations of the FCPA imposed by the US authorities to companies was USD 6.4 billion. Out of these 12 companies only one was from the US: jurisdiction of this strict act is exceptionally broad. A company involved in international business and the individuals representing it may face severe penalties, if the company fails to prevent corruption in its business. The US and UK anti-corruption regulation include, however, a significant defence mechanism for the companies. If the company can demonstrate, after having violated either the US or UK anti-corruption laws, that despite its representative engaged in foreign bribery, it has an effective corporate compliance and ethics program, it may receive declination or at least substantial credit possibly worth of millions. The US and UK authorities have issued guidance on corporate compliance and ethics programs to support the prosecutors in their enforcement activities. This guidance also supports the companies in identifying what is required from a corporate compliance and ethics program to be considered effective. This guidance is of utmost importance for companies, as comprehensive case law is not available when majority of cases are settled. What is enough when it comes to corporate compliance and ethics programs? The requirements of the FCPA and UK Bribery Act on corporate compliance programs are studied in this thesis using a comparative research methodology, demonstrating that full compliance with these acts can be reached simultaneously. However, it is also concluded, that given the inadequate guidance by the supporting documentation, the companies cannot verify their compliance without their compliance and ethics programs being investigated by the authorities, ie US or UK prosecutors. A clear lack of guidance is identified.
  • Errib, Abu (Helsingin yliopisto, 2021)
    Big Data is considered an essential asset for online business models and crucial for their services. These business models depend on the processing and monetization of the data; thus, big data is said to be the driving force of their market behavior. The emergence of big data for online platform businesses may give rise to a specific type of abuse under Article 102 TFEU. For instance, incumbents may prevent competitors from accessing valuable data. In this regard, this thesis will analyze the concept of refusal to supply, which is considered an abuse of dominance under Article 102 TFEU in certain circumstances. Therefore, the purpose is to analyze the applicability of the refusal to supply in big data situations. The research question of this thesis is – can an online platform´s refusal to provide access to data constitutes an abuse of dominant position according to Article 102 TFEU. The analysis leads to the conclusion that under certain conditions, a dominant company can be forced to provide access to its datasets if the requirement is met. This thesis will mainly consider the issue of the indispensability requirement of big data.
  • Zhang, Xiaodan (Helsingin yliopisto, 2021)
    In 2013, the Company Law has revised the capital system, enacting the capital subscription system and giving more freedom to corporate autonomy. However, there are still some conflicts arising under such system, especially for conflicts on the allocation of voting rights of shareholders who have not contributed subscribed capitals in full. Therefore, it is necessary to conduct a research and discuss how to deal with such conflicts by analyzing the capital systems in different countries and relevant cases in China. This article focuses on how to better allocate shareholders’ voting right under capital subscription system after fully considering its benefits and problems. To solve this problem, it contains the following aspects: (1) Introduction of shareholders’ voting rights and capital subscription system; (2) Discussion of the current situation and existing problems of shareholders’ voting rights under capital subscription system; (3) In-depth analysis of current theory and cases in China; (4) Comparison of capital systems, such as authorized capital system in the U.K and compromise capital system in Japan, in other countries; (5) Suggestion on how to better allocate shareholders’ voting rights to solve existing problems.
  • Ligi, Karina (Helsingin yliopisto, 2021)
    The year 2021 marks 36 years since the landmark Mitsubishi ruling – confirming the arbitrability of competition law-based claims, and overturning the then prevailing American Safety decision, which denied the arbitrability of competition law disputes. Mitsubishi was not only a landmark ruling in the U.S., but it also induced a similar change in Europe, firstly with the encouragement of the Commission and then followed by the CJEU in Eco Swiss. However, the development and clarification of EU competition arbitration has been relatively slow and scarce. That is due to the nature of EU competition law, which has a lot of open terminology, the lack of arbitration mentioned in the legislation, and often the unwillingness of CJEU to clarify important concepts due to lack of information. Also, arbitration proceedings are confidential by nature – which historically has been one of the main arguments against arbitrability of competition disputes – therefore, the development and clarification of EU competition arbitration has only come up in limited circumstances, mostly in the recognition and enforcement phase of the arbitral award or when the losing party has challenged the award. The current position is that competition law is an arbitrable subject-matter in the EU. That position is mostly based on the application of Articles 101 and 102 TFEU, which mostly arise in arbitration proceedings. However, when stepping out of the confined boundaries of those Articles, and considering whether Article 106 TFEU on exclusive right; Articles 107-108 TFEU on EU state aid; EUMR on concentrations or follow-on damages actions based on EU competition law infringements are also arbitrable, the answer is more ambiguous. In theory, the answer is yes, subject to limitations of the Commission’s exclusive competence, but in practice, the arbitrability of those EU competition law issues poses many challenges on arbitrators. This thesis explores the jurisdictional issues and limitations on arbitrators’ to arbitrate EU competition rules, related claims and follow-on action damages.
  • Malmberg, Otso (Helsingin yliopisto, 2022)
    Artificial Intelligence (AI) has become an ubiquitous technology in society with ever more diverse applications. Different AI systems have become especially pervading in the domain of creative arts, where they can near-autonomously generate content. For example, there is a number of software that allow generation of musical output with minimal specifications from the user of the AI system. Where the creative process combines human and machine labor, results of such joint efforts can be called ‘AI-assisted output’. Ascertaining the legal status of AI-assisted output forms the crux of this Master’s thesis. On one hand, the research is concerned with the copyrightability of AI-assisted output. This question pertains to musical output produced with the assistance of illustrative AI systems of AIVA and Jukebox. The research adopts a legal comparative method in this regard: it seeks to assess how the copyright laws of EU and England could accommodate the AI-assisted output. Evidently, the focus in the analyses of the respective systems will revolve around their conceptions of originality, the key requirement to qualify for copyright protection. As a counterpart for the legal comparative study into the feasibility of copyright protection of AI-assisted output, the second prong of the research probes into the desirability of protecting such output. In other words, the research seeks to establish the merits of protecting AI-assisted outputs by juxtaposing the underlying, theoretical rationales of copyright law against AI-assisted output. To this end, the research aims to survey how the relationship between the human author and AI system interacts with the different rationales of copyright. Against this backdrop, the research preludes by looking into the foundations of AI and the selected legal systems. AI is examined retrospectively with a view on how the technology has emerged and how machine learning, the most prominent method of modern AI, has significantly increased the autonomy of AI systems. The illustrative AI systems of the research, AIVA and Jukebox, match the foregoing trends. However, in exploring the features of the systems, variance can be perceived in the amount of influence the user may be able to exert in the creative process of the musical output. The research then proceeds to provide a thorough picture of the framework of copyright law. In the first half of the section, the origins of the law are traced back to the civil law and common law traditions that underlie most copyright systems. Thereafter, the utilitarian and deontological rationales that underpin those systems are discussed including an exposition of the legal and economic discipline’s relationship with copyright law for later discussion. The second half of the section zeroes in on the copyright laws of the selected legal systems. It first notes the influence from the international framework of copyright and some general discussion on AI and its output on that level. Following up, the respective schemes of awarding copyright protection under EU and English law are broken down into their constituent parts. As per alluded, the crux of the analyses are on their respective standards of originality. In the EU, the notion is construed as an exercise of identifying ‘author’s own intellectual creation‘; specifically, the CJEU is concerned with the identification of creative choices that can take place in different phases of the creative process. In England, the standard of originality denotes first and foremost origination: the pertinent artifact should originate from the author and no one else. In addition, the English standard seeks to establish the exercise of skill, labor and judgment in its creation of the right kind. In the analytic section of the research, the illustrative systems of AIVA and Jukebox are then related against the copyright systems. The section begins with an application of the standards of EU and England against the output from the AI systems in abstract; no concrete samples from the systems are studied but rather the focus is on how their users may harness their features. Herewith, the amount of user engagement in the creative process becomes the key in both system; where the user can apply creative choices in the different phases of the production or alternatively exert skill, labor and judgment as opposed to mere generation off output with the systems, there is very likely an original work at stake. Hereby, the two AI systems diverge when examined in isolation; whereas AIVA provides the user with a vast amount of tools to interact with their product, Jukebox has little to offer in terms of post-processing. Accordingly, whereas output from AIVA would very unlikely fail to meet the standards of either jurisdiction, output from Jukebox could potentially be barred where no human intervention can be perceived from the final product. The section concludes with a survey of alternative forms of protections for AI-assisted output. As per the foregoing discussion, it is noted how the deontological rationales have limited application in justifying the protection of output that have minimal human involvement. It follows that the economic-utilitarian grounds are emphasized and options that spur therefrom. The related rights regime, a new sui generis right and alternatives that disregard considerations of originality and authorship are explored with alike conclusions: the alternatives do not serve as a backdoor protection but are rooted in valuing socially beneficial activities. Evidently, with AIVA and Jukebox, it would have to be evidenced that their generated output merits protection from a market failure. In light of the foregoing discussion, there is no such substantiation. Accordingly, it would be best to leave AI-assisted output in the lower end of the spectrum of human interaction well alone to preserve the balance between private and public interests.
  • Tarkiainen, Lauri Vilppu Juhani (Helsingin yliopisto, 2019)
    The purpose of this study is to research legal challenges and solutions for data sharing with autonomous ships. Autonomous ships store and share a significant amount of data, and data sharing occurs between various parties with autonomous ships. The aim of this study is to analyze and examine the legal challenges and solutions related to different types of data sharing activities in autonomous shipping, as well as to research the general legality of autonomous ships. The first part of this study is to study how well autonomous ships fit into the existing legislative framework. The existing legislative framework is mainly based on IMO conventions, and the purpose of this study is to research those conventions from the perspective of autonomous ships. Based on this research, amendments are proposed when necessary to better support the legality and development of autonomous ships. In addition to the IMO conventions, other relevant sources, such as guidelines on MASS trials, are examined to highlight guidance on the development of autonomous ships. The legal analysis on IMO conventions and other sources shows that as the level of autonomy of a ship increases, the more challenging the ship is for the legal framework. Several conventions directly mention the need for a master and crew to be physically present on board, and various watchkeeping duties are required to be performed by human senses. Regarding the use of human senses, a legal argument can be made to accept technological means as long as they are at least equally functional than human senses. For remotely controlled ships, a legal question is whether a master and crew can operate from the SCC and how well this satisfies the requirement to operate on board. Recommended action is to amend those IMO conventions that require physical human presence and decision-making to accept the lack of manned crew and the presence of autonomous decision-making. However, technical requirements are recommended to be included in the legal amendments to the conventions to ensure a high level of safety and functionality. The second part of the thesis examines legal challenges and solutions for data sharing with autonomous ships. First, a factual assessment of data sharing principles with autonomous ships are described and discussed, and afterwards a legal analysis is conducted. The legal analysis on data sharing and autonomous ships examines what kind of legal challenges exist with data sharing and autonomous ships and how to solve them by legal solutions. Cyber security is a key challenge with autonomous ships, and its role in data sharing is analyzed and requirements to have robust cyber security systems are recommended. For operational data sharing, the issue of ensuring a functional data flow is necessary. Autonomous ships should be legally required to have strong data sharing and connectivity capabilities in order to comply with requirements to share information. Also, this requirement is to achieve as safe and functional navigation as possible. The role of ship-to-ship and ship-to-port data sharing are examined, and legal requirements should facilitate their maximal utilization. At the end of this study, a contractual framework is applied by using the Sitra Rulebook on data sharing in order to illustrate how contractual means can support data sharing with autonomous ships.
  • Akerele, Michael (Helsingin yliopisto, 2016)
    Tiivistelmä – Referat – Abstract When parties become unable to pay for the costs of arbitration, they sometimes seek to resort to litigation in national courts. In such circumstances, UK courts, in reference to the UK Arbitration Act, have held that impecuniosity of a party would not invalidate the agreement to arbitrate and impecunious parties could thus not be allowed to resort to litigation while there is a valid arbitration agreement. Research in this thesis found, in light of recent US courts decisions, that an economically superior party could purposely make arbitration expensive and consequently unaffordable for an economically inferior party by insisting on undue conformity with the requirements of procedural due process. When issue of impecuniosity is raised by a party who seeks to resort to litigation and a counterparty seeks to compel arbitration, the approach of the US courts is that the party who seeks to compel arbitration could either pay for the costs of arbitration or the impecunious party should be allowed to resort to litigation in the national court. This thesis suggests that in order not to foreclose economically inferior parties from obtaining justice because of impecuniosity which might be unscrupulously occasioned by economically superior parties during the course of arbitration, the UK courts should adopt similar approach taken by the US courts in some cases.
  • Yuan, Li (Helsingin yliopisto, 2020)
    This Master thesis belongs to the project of the HELSUS Co-creation Lab. The project topic is about the circular economy and the challenge given by a HELSUS partner UPM-Kymmene Corporation to find opportunities for the circular economy business model from a legal perspective. As an international forest industry company, UPM has developed innovative ways to reduce its waste and to reuse its side in new products, and to use resources sustainably. Circular economy principles already applied in UPM, and develop and implement the technology and innovation of using wood in various new products. However, UPM wants to know what challenges and possibilities the regulations pose in creating new circular business opportunities? At the same time, this thesis chooses Germany and China for comparative research. Both countries have promulgated special circular economy legislation, established the 3R principles of reduce, reuse and recycle, stipulated extended producer responsibility systems, established waste recycling systems, and so on, aim to promote waste treatment and resource recycling legal system. However, the circular economy legal system of these two countries have apparent differences in legislative models, legislative purposes, and institutional arrangements. So, there are two purposes for writing this essay. First, explaining the historical evolution of the circular economy legal system in Germany and China, the objective is to understand the historical evolution of the circular economy law in two counties. Second, evaluative whether they are under circular economic aims in comparative research, the purpose of the comparison is not to determine which country's laws are more suitable for creating new business opportunities. It is to find out the challenges and possibilities of creating new circular business opportunities for UPM. Therefore, the research question is about: What are the challenges and possibilities of creating new business opportunities for UPM when compares the circular economy legal system between Germany and China?
  • Hotta, Vanessa (Helsingin yliopisto, 2021)
    Ilmiö joukkoviestintämarkkinoiden keskittymisestä ja uusien teknologien aiheuttamista muutoksista media-alalle on maailmanlaajuinen; osa mediataloista on lakkauttanut toimintansa kokonaan, kun taas osa yrityksistä on myyty suuremmille kilpailijoille tai muille alan toimijoille. Tämä on johtanut suurien, eri aloilla toimivien monialayritysten syntymiseen ja vähentänyt markkinoilla toimivia yrityksiä. Kehitys on havaittavissa myös Suomessa: esimerkiksi vuonna 2016 päivälehtiä oli 30 vähemmän kuin kymmenen vuotta aikaisemmin. Maaliskuussa 2020 sanomalehtien keskittymiskehitys kulminoitui, kun Sanoma Oyj osti Alma Media Oyj:n paikallislehdet, mikä herätti julkista keskustelua siitä, uhkaako yrityskauppa Suomen median monimuotoisuutta. Kilpailu- ja kuluttajavirasto kuitenkin (KKV) jätti kysymykset median monimuotoisuudesta huomioimatta vedoten kilpailulain asettamien toimivaltarajojen lisäksi Euroopan komission viimeaikaiseen tapauskäytäntöön, jossa kysymyksiä yrityskauppojen vaikutuksista median monimuotoisuudelle pidetään kilpailuoikeuden alaan kuulumattomina. Tämä opinnäytetyö tutkii Euroopan unionin (EU) kilpailuoikeuden suhdetta median monimuotoisuuteen liittyviin kysymyksiin. Tutkimus osoittaa, että vaikka komission viimeaikainen tapauskäytäntö on keskittynyt yrityskauppojen taloudellisiin vaikutuksiin – antaen painoarvoa erityisesti hintakilpailulle – komissio on aikaisemmin antanut painoarvoa myös median monimuotoisuutta käsitteleville seikoille. Koska EU:lla ei ole toimivaltaa antaa kulttuurialaan liittyviä säännöksiä, on ensisijainen vastuu median monimuotoisuuden suojelusta kuitenkin jäsenvaltioilla. Kun huomioon otetaan kilpailusääntöjen joustavuus ja monimuotoisen median merkitys demokratialle, joka on yksi EU:n perusarvoista, tukee teleologinen laintulkinta kuitenkin myös median monimuotoisuusnäkökulmien huomioonottamista myös kilpailuanalyysissä. Lisäksi EU:n kilpailusäännöissä huomioidaan hinnan olevan vain yksi kilpailuparametreistä mm. tuotteen laadun ohella. Tämä puolestaan mahdollistaisi sen arvioimisen, heikentääkö yrityskauppa mediamarkkinoilla olevien tuotteiden laatua. Opinnäytetyö ottaa myös kantaa laajempaan keskusteluun siitä, tulisiko niin kutsuttuun yleiseen etuun (public interest) liittyviä kysymyksiä käsitellä kilpailuoikeudellisessa analyysissä. Keskeinen argumentti on, että vaikka nykyinen, vahvasti hintakilpailuun perustuva analyysi ei palvele kuluttajia parhaalla mahdollisella tavalla, ei kilpailuoikeutta ole tarkoituksenmukaista käyttää ensisijaisena keinona median monimuotoisuuden suojelussa. Kilpailuoikeuden vallalla olevia menetelmiä ja käytäntöjä olisi kuitenkin suotavaa uudistaa siten, että ne ottavat jokaisen markkinan erityispiirteet huomioon. Media-alalla tämä tarkoittaa esimerkiksi sen huomioimista, ettei hinta ole keskeinen kuluttajaa ohjaava tekijä. Tämä tukisi mahdollisesti myös median monimuotoisuuden säilymistä ja palvelisi kuluttajien hyvinvointia nykyistä staattista analyysiä paremmin. Media-ala tarvitsee kuitenkin säilyäkseen tuekseen myös erityislainsäädäntöä, mikä on kilpailuoikeutta tarkoituksenmukaisempi keino vastata median monimuotoisuutta koskeviin uhkiin, vaikka kilpailuoikeutta voidaan käyttää erityislainsäädännön tukena.
  • Elevant, Ina (Helsingin yliopisto, 2021)
    The rise of the Internet of Things (IoT) has brought with itself an unimaginable ease to large-scale collection and sharing of personal data. Such large-scale collection and sharing are often done on the basis of data subject’s consent. Consent enjoys a prominent role in the European data protection framework. Consent has, however, been criticised for not providing individuals with adequate protection in online environments. This problem will only be exacerbated with the rise of IoT as IoT extends the data collection practices of the online environments also to offline environments. The purpose of this thesis is to explore the use of consent in the processing of personal data in the IoT. There are two research questions this thesis aims to answer: i) what are the problems and challenges related to the traditional consent based model in relation to IoT, and ii) is there an alternative way forward to user consent? This will be done through legal doctrinal methodology. However, this thesis will also take an interdisciplinary approach as it also draws from different disciplines than law such as technology, behavioural sciences and economics. This thesis shows that, in digitalized world, consent is neither freely given nor informed; thus, challenging the notion of valid consent. These problems arise from information and power asymmetries that are present between data subjects and controllers. However, IoT also brings with itself a unique set of problems as most IoT devices lack screens and input methods making it hard for individuals to access information and provide consent. Moreover, the unobtrusive and ubiquitous nature of IoT makes data collection activities invisible making it hard to apply transparency principle. It is also predicted that the presence of IoT in public spaces leads to the diminishment of private spaces. In light of this, this thesis discusses some alternative ways forward to user consent. The first approach focuses on improving consent, while the second approach aims to shift the focus away from consent by placing accountability on controllers. While both of these alternatives have appeal, they do not come without challenges. Therefore, more research is needed in the field of IoT and data protection.
  • Oka, Atte (Helsingin yliopisto, 2021)
    Developed common-law jurisdictions have had better economic performance in comparison to continental European countries. An integral part of corporate risk management is defending against hostile takeover attempts. Hostile takeover activity is by majority represented in the countries with more widely dispersed share ownership, such as the United States and United Kingdom. One side suggests that ultimately corporate governance structures around the global economy will converge with the United States shareholder-oriented model. This paper will focus on discussing whether the United States practices in mergers and acquisitions regarding hostile takeover defensive tactics have impacted the way regulators in Europe and Finland allow and apply similar takeover defense corporate governance mechanisms. The author will compare U.S. law and case law to the European Takeover Directive and later to the Finnish Limited Liability Companies Act and the Securities Markets Act. The research question is whether Finland as part of the EU is converging to the Anglo-American legal standard in terms of hostile takeover defense tactics. The author finds that elements of U.S. corporate law has been transplanted to Finnish corporate laws and that similar tactics aimed at frustrating or defeating a hostile takeover can be used in Finland.
  • Bagdasar, Hannah (Helsingin yliopisto, 2018)
    Crimes perpetrated by large corporate actors are often met with impunity. This is particularly relevant in the case of the international core crimes and grave human rights abuses. Serious breaches of human rights were once thought to only committed by states and their actors, but as corporations grow to gain more power than that of some states, so grows their power to commit egregious abuses. As such, it is imperative to assess the mechanisms governing corporate actions, on both the international and domestic levels. This paper aims to provide a overview of the mechanisms governing corporate criminal liability for violations of the international core crimes through an assessment of ongoing soft law mechanisms, international tribunal precedent, domestic practices looking into best practices as well as common failures. Ultimately, the author finds that in order to effectively achieve criminal liability for corporate perpetrators of atrocity crimes, domestic paths must be pursued and strengthened before moving forward at the international criminal level. In the first part of this paper the author lays the ground work for how businesses can commit egregious abuses, and provides background on the ongoing frameworks of corporate social responsibility which dominates the human rights and business space. The second part looks into the international soft law mechanisms that largely govern how businesses operate with respect to human rights and preventing violations of the core international crimes. Several of the major mechanisms are selected and analyzed, along with a failed proposal by the United Nations, and a new Draft Treaty on Business and Human Rights. The third part looks at the how corporate criminal liability functions as part of international law customs and at international tribunals, with a look into the Nuremberg industrialist trials, the notable failure to include legal persons into the founding documents of the International Criminal Court, and a hopeful ruling regarding the jurisdiction over legal persons by the Special Tribunal for Lebanon. The fourth part focuses on domestic systems, looking into how corporate criminal liability is applied within two different jurisdictions, France and the United States, and one corporate accountability case that spans both jurisdictions. Finally, the author gives recommendations on what can be done in order to move forward with creating a more cohesive approach to corporate criminal liability for atrocity crimes at the international level, which is largely dependent on that of domestic systems.
  • Addiscott, Kate (Helsingin yliopisto, 2022)
    More and more often in the digitalised world, consumers come into contact with undertakings operating within the zero-price market. That is, where the product or service is offered to the consumer at a price of zero. Examples of zero-priced markets are numerous, from shopping malls, to social media and credit cards. This market type is not an insignificant one, with Facebook and Google, two of the largest internet companies offering zero price goods, having a market capitalisation of $1,645 billion as of June 2020. The topic of data driven digital zero-price markets has been receiving increasing amounts of attention in recent years. The OECD, Commission, national competition law authorities and academics have increasingly been considering this market type. It is often said that the consumer pays to use these digital services with their person data. In online transactions, essentially all transactions require at least some disclosure of the user’s personal data. This personal data is highly valuable to undertakings, with companies willing to receive consumers data instead of being paid by them with money. Overall, the question which I pose is whether EU competition law can deal with the unique characteristics of these digital zero-price markets. The economic and consumer welfare grounding of Article 102 means that it is adaptable to zero-price markets, and the special characteristics of zero-price markets are to an extent already considered in a competition law analysis. This market type is unique and significantly different to the traditional market types that EU competition law has been faced with in the past. For one, these markets operate largely on the digital sphere, meaning that they are characterised by competition for the market, exceedingly fast innovation and unique barriers to entry. These markets are multisided, with consumers, advertisers, merchants and the undertaking all operating on unique parameters but interacting with one-another. Finally, the goods/services are provided at zero-price, which traditional economic analysis struggles to adapt to, whilst consumers are faced with alternative costs through their attention and information (data) and reduction of quality. The Google Search (Shopping) case shows these characteristics in action, and demonstrates the challenges which EU competition law faces when applied to this market type. It also shows the current capabilities of the law in dealing with this market type. There are ways that the law can be adapted, utilising new tests which focus on other cost parameters than price, putting more weighting on factors other than monetary price and looking at different competitive parameters such as quality. This thesis does not seek to criticise EU competition law as a whole. It is limited to considering specifically digital zero-priced markets. It is concluded that more can be done to ensure that its unique characteristics can be included in a competition law analysis. In this respect, the EU can become a leader, laying the groundwork for the future competition law treatment of these undertakings, and ensuring that it is properly recognised that consumers can face competitive harms even if it is not based upon a monetary price.
  • Aloia, Vinicius (Helsingin yliopisto, 2020)
    The recent shift in paradigm caused by the increasing democratisation and commercialisation of outer space, commonly referred to as ‘NewSpace’, has once again rekindled humankind’s interest in space and space exploration. The trend to global digitalisation is changing the traditional face of space activities and the space industry is now subject to a commercialisation wave. With technological advancements, private commercial entities have taken it up to the stars in order to turn a profit. New actors in NewSpace range from the pragmatics of the space industry, dealing with, for instance, satellite communications and connectivity, satellite components, satellite navigation, and launch services, all the way to the dreamers postponing immediate rewards, working towards concepts such as mining and utilising space resources, in-orbit servicing of satellites, space tourism, where space is conceived as an instrument for implementing new business models and ideas. While the traditional space industry dates back to the space race, States are no longer the only actors with spacefaring capabilities. The emergence of NewSpace, private non-governmental actors taking part in space activities, and new business models call for new technologies and implementation practices that create new legal and regulatory challenges that NewSpace companies and the traditional commercial space sector need to take into account in their business activities. To answer whether the current international and national legal framework is sufficient to accommodate the recent paradigm shift and new trends and the approach of the Nordic countries, this thesis will provide a cursory look on the issue and scrutinise the main legal and regulatory challenges faced by NewSpace companies, and, when appropriate, the impact on and the response of Nordic countries in tackling these challenges. First, it will provide the necessary historical background on the space industry as a whole, explaining the roots of NewSpace and how the industry has developed to its current state. Second, it will introduce the basic concepts of space law, the five international space treaties – which compose the international legal framework on space activities – and a more in-depth look on the basic requirements and conditions for authorisation in national space legislation. The national legal framework for space activities in Norway, Sweden, Finland, and Denmark will be examined comparatively and their impact of national legislation on the private space industry in the Nordic countries. Finally, this thesis analyses the main legal issues surrounding both the traditional space sector, such as contract practices in the space industry, aspects of space insurance, and export, and hallmark projects typical of NewSpace, such the exploitation of space resources from the Moon and other celestial bodies, and suborbital flights, and active debris removal.
  • Romero Nieto, Pablo (Helsingin yliopisto, 2020)
    Giving the consolidation of a framework that allows for the operations of drones for commercial purposes by the new implemented Regulation (EU) 2019/947 on the rules and procedures for the operation of unmanned aircraft, this thesis introduces the reader to both the origin of the technology, the potential business applications of drones in the civil environment, and the current provisions regarding the risk-based operational characteristics of the Regulation as means to analyse the previously existing air and contractual law’s provisions. Through the exploration of the relevant legal principles and regulatory guidelines available for the interpretation of liability assignment and applicability, and by comparing the regulation to the contractual model in order to provide a deeper understanding of how the technology can be commercialized on a Drone-as-a-Service model, the author presents the relevant need of further legislation addressing the application of liability regimes harmonization between Member States from the perspective of the Unmanned Aircraft Systems Operator to satisfy the modern Cloud-Based Services Agreements model and allow the use of Internet as a platform for cross-jurisdictional performance. The first chapter revolves around the historical development and the growing civil interest in the application of drones to activities as a novel, as well as to already established activities that are currently performed by different technologies. Furthermore, it presents the possibility of its characterisation under the framework currently employed by cloud-based services regarding its commercial contractual format. The second chapter focuses on introducing the new Regulations (EU) 2019/947 and 2019/945, which have set the legal and regulatory frame for the safe conduction of activities of unmanned aircrafts, including the principles that served as base for the development of the provision;, the operational rules; machinery requirements and classifications; and the categories’ classification system that have been created for risk assessment. Overall, the frame serves as a guide for anyone interested in venturing in this business. The third chapter explores the international laws and EU air laws that will influence the ruling and potential jurisprudence regarding liability decisions. It aims at presenting both the relevance of Member States autonomy over regulatory decisions and importance towards contractual liabilities disputes. The focus is strongly focused on Operators that will be employed by service providers under the conceptualised cloud-based services agreements contracts framework. Finally, the thesis presents its conclusions and recommendations towards the commercial parties and legislators.
  • Nyberg, Anna (Helsingin yliopisto, 2019)
    Avhandlingen är en rättsdogmatisk undersökning av den nationella lagstiftningen gällande konkurrensförbud i anställningsförhållanden. Konkurrensförbud begränsar arbetstagarens rätt att vid anställningsförhållandets slut ingå arbetsavtal med arbetsgivare som bedriver konkurrerande verksamhet med den ursprungliga arbetsgivaren samt att för egen räkning idka konkurrerande verksamhet. Arbetsavtalslagen (55/2001, ArbAvtL) innehåller tvingande reglering av konkurrensförbud och har som syfte att säkerställa balansen mellan parterna: Arbetsgivaren skall ha möjlighet att ingå konkurrensförbud för att skydda att känslig information kommer i händerna på konkurrenterna, samtidigt som arbetstagarens näringsfrihet måste tryggas. Lagstiftningen de lege lata lämnar en del utrymme för tolkning. Vad är giltiga konkurrensförbud i anställningsförhållanden? Hurdana arbetstagare betraktas som sådana ledare att ArbAvtL:s begränsning av giltighetstiden och storleken för avtalsvitet inte gäller? Avhandlingen inleds med att granska faktorerna som spelar roll vid bedömningen av konkurrensförbuds giltighet. Konkurrensförbud är i sin helhet ogiltiga och binder inte parterna om det inte finns synnerligen vägande skäl för dem. Det saknas synnerligen vägande skäl om arbetsgivaren inte har ett faktiskt behov, arbetstagaren inte är i någon form av nyckelposition, naturen av arbetsgivarens verksamhet inte förutsätter konkurrensförbud, eller verksamheten som förbjuds inte är konkurrerande verksamhet. Konkurrensförbud är partiellt ogiltiga om dess giltighetstid eller avtalsvite överskrider den lagstadgade gränserna. Vad som är giltiga konkurrensförbud avgörs enligt en helhetsbedömning från fall till fall. Vidare granskas vilka arbetstagare som på basis av sina uppgifter och sin ställning anses leda ett företag, en sammanslutning eller en stiftelse eller en självständig del av sådana eller anses inneha en självständig ställning som är direkt jämförbar med en sådan ledande uppgift, och därmed kan bindas av längre konkurrensförbud än tolv månader och högre avtalsviten än sex månaders lön. Arbetstagare som objektivt sett har hög lön; har större befogenheter och ansvar än ordinarie arbetstagare; har andra arbetstagare hierarkiskt underordnade sig; samt har möjlighet att bestämma om sin egen arbetstid kan anses omfattas av ledarbegreppet i ArbAvtL och kan därmed bindas med strängare konkurrensförbud än vad lagstiftningen påbjuder. Arbetstagare som självständigt bestämmer om sin arbetstid och innehar olika typer av sakkunniguppgifter kan anses inneha sådana självständiga ställningar som direkt jämförs med ledande uppgifter och därmed kan de också bindas av strängare konkurrensförbud än vad lagstiftningen påbjuder. Eftersom arbetsgivarorganisationer varierar när det kommer till storlek, verksamhet, uppbyggnad etc. är det inte möjligt att dra svartvita riktlinjer för vilka arbetstagare som omfattas av undantagsregleringen och vilka som inte gör det. Undantagets personrelaterade omfattningsområde måste avgöras enligt en helhetsbedömning från fall till fall. Avslutningsvis diskuteras rättsläget de lege ferenda. Diskussionen tar avstamp i en ytlig granskning av Sveriges konkurrensförbudsreglering. Det faktum att den nuvarande lagstiftningen lämnar så pass mycket tolkningsutrymme och att det i sista han är domstolen som retroaktivt avgör konkurrensförbuds giltighet, leder till osäkerhet på arbetsmarknaden. Arbetstagares begränsade möjligheter att i praktiken pröva konkurrensförbuds giltighet, i kombination med de stränga påföljder som brott mot konkurrensförbud resulterar i, gör att arbetstagare riskerar följa konkurrensförbud som i verkligheten är ogiltiga. Jag argumenterar att detta leder till att arbetsgivare kan utnyttja situationen och godtyckligt använda konkurrensförbud. En obalans mellan arbetstagare och arbetsgivare uppstår. Användningen av konkurrensförbud skall visserligen även i framtiden möjliggöras, eftersom arbetsgivare i vissa situationer behöver kunna skydda information. Däremot behöver arbetstagares svagare ställning tryggas. Jag föreslår de lege ferenda att definitionen av ”synnerligen vägande skäl” för konkurrensförbud samt det personliga omfattningsområdet för arbetstagare i ledande ställning specificeras för att minska behovet av retroaktiva ställningstaganden. Vidare framför jag att arbetsgivare skall betala skälig ersättning åt arbetstagare redan från tidpunkten då konkurrensförbudet inleds. Den balanserade regleringen skulle leda till en minskad osäkerhet bland parterna och en mera övervägd användning av konkurrensförbud.
  • Hossain, Sheikh (Helsingin yliopisto, 2016)
    Freedom of establishment granted to nationals of Member States which is enshrined in the Article 49 of the Treaty on the Functioning of the European Union (TFEU) is one of the fundamental freedoms granted by the Treaty that extends to companies by virtue of Article 54 of TFEU. In the absence of company law harmonisation, the increased corporate mobility may lead to a competition between legal orders which in turn can produce laxer law in the Community and this fear is known as fear of Delaware effect in the European Union. Since company law is not harmonised in the EU, there are differences among national conflicts of laws rules of the Member States and many Member States felt justified to use the real seat doctrine as a defensive mechanism for negating the European Delaware. However, the judgment in Centros changed this situation and established legal forum shopping as a good practice. Subsequently the judgment in Überseering reaffirmed the principle of mutual recognition in the EU. Therefore these two judgments established the market for company incorporations and as a result it was feared that, a European Delaware is going to emerge. The purpose of this paper is to assess whether this fear is justifiable. For this purpose the traditional way of conducting legal research; looking for sources and by reading and evaluating them, using them with critical thinking and judgments, was used as a method in this paper. The paper found that, although after the judgments in Centros, Überseering and Inspire Art it was feared that a European Delaware is going to emerge; this fear was unreasonable. It is particularly because the regulatory competition not only needs the establishment of a market for company incorporations but also needs the willingness of the Member States and the companies to compete. The judgments in Centros and Überseering only established a partial market for company incorporation because a market for company incorporation needs both the ability to forum shop and the ability to reincorporate a company in another Member State. This paper also looked into the incentives for competition from the Member State’s and company’s perspective. Eventually, market for company incorporations was established after the judgment in Polbud which allowed cross-border conversion of companies; making regulatory competition possible in the EU. As a result, this paper proposed company law harmonisation as possible solution to the problem. It is high time the Commission took the initiative to make Community company law uniform so that a European Delaware does not emerge.
  • Luoma, Anni (Helsingin yliopisto, 2021)
    Solution-centric strategies and selling tailored solutions to customer-specific needs have become increasingly common in B2B trade. Customers are no longer interested in simply purchasing products, but instead wish to buy reliable and efficient solutions for their specific and potentially complex needs. Such needs can be the applicability of the goods to function efficiently within the existing operational environment or certain performance objectives such as to increase process efficiency. With the increasing importance of the non-physical features of products, the rules on seller’s responsibility to ensure the goods’ fitness for the buyer’s particular intended purpose (“fit for purpose responsibility”) have gained a more prominent role in assessing the conformity of the goods and seller’s defect liability. The purpose of this thesis is to firstly shed more light on what seller’s fit for purpose responsibility means in practice and how this can be applied to a seller that is characterized as an industrial solution provider. In this thesis the term industrial solution provider refers to an industrial manufacturing company that sells customized products and participates in the selection of the appropriate solution for its customers’ needs. Secondly, this thesis aims to assess the feasibility of the current legal framework on seller’s fit for purpose responsibility within the context of B2B trade. This thesis focuses on these questions within the context of the Finnish Sale of Goods Act (FSGA) and the CISG. The first part of this thesis, which examines the fit for purpose responsibility of an industrial solution provider, de-scribes first on a general level the two conditions for seller’s liability under 17(2)(2) § FSGA and Article 35(2)(b) CISG and then examines these within the context of a sales transaction between an industrial solution provider and a professional buyer. The main findings are that the fit for purpose responsibility of an industrial solution provider can be extensive, and it can be expected to go to great lengths to scrutinize and actively search for indications about the buyer’s needs. Moreover, due to its expert role, it is unlikely that it can rely on the defense that the buyer did not reasonably rely on its expertise. It also became apparent that seller’s fit for purpose responsibility is difficult foresee and very much dependent on a case-by-case analysis, and hence it is difficult to provide clear and definite conclusions on the fit for purpose responsibility of an industrial solution provider. The second part of this thesis, which examines the feasibility of the current legal framework on seller’s fit for purpose responsibility within the context of B2B trade, analyzes how well the current rules achieve the central objectives of contract law. The main findings from this analysis are that the current legal framework does not manage to fully achieve these central objectives, and it seems that it lacks a clear economic efficiency justification, whereas it is designed with consideration to an ill-founded idea of protecting the professional buyer. However, it can be questioned how well these rather theory-based findings correspond to reality, and whether these inefficiencies are as significant in practice. It can be concluded that seller’s fit for purpose responsibility presents an unforeseeable and potentially extensive risk to many sellers and especially those that manufacture and sell products for customer-specific needs, and it is important to be aware and adequately manage this risk. Moreover, there are several issues with the current rules on seller’s fit for purpose responsibility and this thesis can serve as a useful starting point for more research and more dialogue between legislators, practitioners and scholars on how the current legal framework serves professional sellers and buyers in today’s B2B trade.
  • Riivari, Maria (Helsingin yliopisto, 2020)
    Tiivistelmä – Referat – Abstract The main research question addressed in this thesis, namely “are perpetual agreements valid and enforceable?”, is enticing from a general contract law perspective, as well as in the comparative law setting. The chapters of this thesis are built in a way such that Chapter 1 serves as an introduction to the research question, legal sources and methodology. Chapter 2 aims to clarify the main confusions around discussions of perpetual agreements. Chapter 3 is dedicated to the binding force of a perpetual agreement, which has not been given enough attention in the research literature as a separate question. Chapter 4 and 5 address the two main categories of perpetual agreements: everlasting contracts and contracts with undefined duration. These chapters include topics which can be addressed to either category, therefore the division of the topics does not provide too strict a systematic distinction. Chapter 6 is dedicated to comparative research from Finnish and Russian contract law perspectives by observing the systems independently in order to bring out the perspectives in which these jurisdictions address the questions of perpetual agreements in the light of their positive contract norms. Chapter 7 presents the research findings in the form of general conclusions about the validity of such contracts as well as systematization in the form of a roadmap to evaluate perpetual agreements. The roadmap then serves the purpose to present the research findings related to Finnish and Russian perspectives on perpetual agreements. The possibility existence of perpetual agreements from the perspective of limiting the freedom contract by mandatory rules of contract law. In conclusion, the research failed to identify a fundamental principle by which the general ban of everlasting contractual obligations could be explained. The research opposes the notion, that perpetual agreements may not exist as an “everlasting” nature of any legal contractual bind would be inherently unjust as such. This is mainly due to the fact, that the legal systems struggle to even comprehend, what eternity means in legal sense. In short, legally speaking, there is nothing inherently unreasonable in eternity. However, undoubtedly, each everlasting agreement should be evaluated based on the nature and purpose of the contract in the light of the intention of the parties, the specific contract type and the relevant mandatory rules in place in connection with type, the circumstances in which the contract was concluded and the requirements of good faith and fair dealing. The roadmap aims to differentiate questions of the validity of the contract (as such, as a legal fact), validity of the perpetual term (everlasting contract), and possibility of termination from each other. The roadmap illustrates the holistic view of the bundle of considerations related to perpetual agreements, without getting stuck in one particular outcome. For example, even if there is no consensus among scholars, whether an everlasting term is valid or not (in a specific case or as a whole) the roadmap allows to elaborate the outcomes by systematizing various scenarios. This provides and essential framework for evaluation of the research questions in various legal systems. The roadmap differentiates questions of the validity of the contract (as such, as a legal fact), validity of the perpetual term (everlasting contract), and possibility of termination from each other. The short answer to the question whether a perpetual contract may be terminated, is yes. But as in all contracts, the pacta sunt servanda provides that contracts should be honoured, and therefore the there is nothing inherently unreasonable in not being able “get out” of a contractual relationship. The ultimate limit to this are the rules of hardship, which the parties may not as such exclude, however they may arrange their risk allocation in the contract so, that some circumstances, which in some contracts could allow the party to terminate the contract, would not be applicable in their situation. Thus, even an everlasting contract may be enforceable until the point of hardship. While this may be true, albeit not inherently unreasonable, there is no doubt, that an everlasting contract may not be unreasonable ever. Therefore, the roadmap explicitly shows, that this is the ultimate question, which requires balancing between the pacta sunt servanda and reasonableness from the perspective of the will of the parties fair dealing, etc. The roadmap shows that in cases in which the everlasting contract term is found invalid, the reasoning is does not follow directly to the default rule of indefinite contracts being terminable, but instead points to the “incomplete contracts”. In practice this means that a consideration should be make in accordance with the rules of supplementation of contracts and omitting a missing term, taking in account the intentions of the parties. In case it would follow directly to the default rule, the default rule might fail to take these into account and reach an unreasonable outcome as well. In a sense, this is also, why in balancing the pacta sunt servanda and reasonableness the outcome leads to similar conclusion as dictated by the default rule. Based on the case law of Finnish Supreme Court it may be argued that the Finnish contract law sems to consider that perpetual agreements are at least somewhat possible, but as an exception may be terminated. The exceptional termination is not as exceptional as it would be in a classical hardship case, but instead reflect the Nordic perspective of reasonableness. There is no legislative rule in the Russian Civil Code prohibiting eternal contractual obligations, however limitations towards terms may be imposed by the Civil Code relevant to specific contract types. Thus, the qualification of a contract to a type, although not obligatory, is of high importance. The default rule for indefinite contracts is not universally valid in accordance with Russian law.
  • Manner, Tupuna (Helsingin yliopisto, 2021)
    International maritime transportation of goods is an inevitable part of global trade and economics. Over 90 percent of global trade are seaborne. Shipping is considered as cost-effective transport mode and it emits less greenhouse gases than e.g. freight or air cargo. Global trade is expected to rise. Shipping industry must be able to answer to the increasing demand of delivering shipping services while adapting to sustainability requirements such as reducing GHG emissions. Shipping interests both public and private sectors and engages complex cross-border supply chain stakeholders from various interest groups. International sustainability and maritime policies are affecting shipping industry from multiple levels. Both the European Union and the United Nations are implementing new normative tools and mechanisms to enhance a sustainability trajectory into all areas of business and society. Traditional treaties and conventions are supplemented by new objectives to meet the overarching sustainable development and economic growth requirements. Three complex subject matters are discussed – the international maritime regulatory scheme, climate and sustainability regulatory scheme and, the wicked problem of reducing shipping industry GHG emissions. An interdisciplinary method is used. The overarching research theme is – what actions and measures are needed in order to safeguard that shipping industry can answer (i) to the increasing demand of delivering shipping services and, (ii) to the increasing sustainability requirements. Two research questions are asked: 1) who governs international maritime affairs and shipping sustainability objectives in the context of shipping GHG emissions reductions, and 2) how to implement the GHG reductions objectives in the shipping industry? In order to attain sustainable development objectives into shipping industry practices, innovative administrative solutions and governance models are needed from the maritime affairs policy makers on both national and international level. Interdisciplinary and innovative solutions are needed to tackle emissions reductions objectives.