Browsing by Subject "comparative law"

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  • Husa, Jaakko (Routledge, 2020)
    Comparative research expands over the traditional boundaries ofconstitutional law scholarship and deepens our understanding ofconstitutional change. This chapter addresses comparativemethodology in studying constitutional change. Discussion in thischapter is based on a theoretically and methodologically broad andflexible view shunning a narrow legal perspective. The chapteraddresses the methodology of comparative law, the purposes ofcomparative constitutional law, and the purposes of studyingconstitutional change comparatively. Also universalism andculturalism, the potential relevance of legal families, and legaltransplants are highlighted. It is argued that both qualitative andquantitative research methods can be used and that comparative studyof constitutional change allows different intellectual styles
  • Pihlajamäki, Heikki (Brill, 2017)
    In Conquest and the Law in Swedish Livonia (ca. 1630-1710), Heikki Pihlajamäki offers an exciting account of the law and judiciary in seventeenth-century Livonia. Immediately after Sweden conquered the province in the 1620s, a reorganization of the Livonian judiciary began. Its legal order became largely modelled after Swedish law, which differed in important ways from its Livonian counterpart. While Livonian legal tradition was firmly anchored in the European ius commune, the conquerors’ law was, by nature, not founded in legal learning. The volume convincingly demonstrates how the differences in legal cultures decisively affected the way Livonian judicial and procedural systems were shaped. Based on archival sources, the study presents an important contribution to the comparative legal history of the early modern period.
  • Möller, Ada (Helsingin yliopisto, 2021)
    Avhandlingen ser på ekonomisk brottslighet (white-collar crime, på svenska ofta kallat manschettbrottslighet) speciellt i formen av förskingringar, och hur de visar sig i välfärdsstater såsom Finland och Sverige. Avhandlingen ger även en översikt över kriminologisk teori, manschettbrottslighet och dess kopplingar till globalisering. I ljuset av avhandlingens källmaterial är en kort diskussion beträffande kriminaljournalistik även inkluderad. Teorimässigt ligger fokus på hur manschettbrottslighet och kriminologiska teorier har utvecklats genom åren. Avhandlingens källmaterial och fallen som analyseras samlades genom användning av internetbaserade nyhetsmedier i januari och februari 2021. Som sökmotor användes Google, där sökningen begränsats till www.yle.fi och www.svt.se. Finland och Sverige blev valda tack vare deras många likheter samt relativt lätta jämförbarhet. Det som skiljer avhandlingen från andra studier inom samma område är dess fokus på Finland och Sverige, samt dess metod för datainsamling, vilket ter sig unikt, eftersom en liknande analys mellan länderna inte gjorts tidigare. Forskningens resultat visar på en variation mellan gärningsmannens ställning och tillvägagångssätt, där brottsmetoden ofta var överraskande enkel. Dessutom kan man i analysen finna påfallande likheter mellan Finland och Sverige. Några uppenbara slutsatser på globaliseringens direkta inverkan på själva brottet förblir dock tvetydigt. Hursomhelst kan det ändå konstateras att medan globalisering i sig inte är källan till allt det onda, är det ändå ofrånkomligt att fenomenet globalisering samt allt vad det innebär nog underlättat genomförandet av en del former av ekonomisk brottslighet. Dock visar även avhandlingens slutsatser på att den stereotypiska manschettbrottslingen som en manlig medelålders chef inte stöds av källmaterialet. Poängteras bör ändå också att definitionen av manschettbrottslighet, som den används i denna avhandling, samt omfattningen av vad som räknats som förskingring, tvingar betydelsen av denna traditionella, och aningen konservativa, stereotypen att minska i värde.
  • Husa, Jaakko (Routledge, 2019)
    A metaphor is not merely a rhetorical device belonging to certain comparatists’ personal writing style, but it is an intrinsic part of the attempt to think comparatively. Essentially, metaphorising as an act of epistemic simplification has a special place in comparative law. This chapter discusses the use of metaphor in comparative law by looking at an example from macro-comparative law by Esin Örücü, who has used culinary terms as metaphors while discussing mixed legal systems. The purpose of the following analysis is to illustrate particular epistemic benefits of using metaphors in comparative legal literature. The chapter concludes that metaphors are helpful because they provide points of understanding by making cognitively sense of foreign legal systems and legal hybridities.
  • Hutukka, Päivi (Helsingin yliopisto, 2020)
    This thesis is about Intellectual Property and Financial Markets Law in comparative context – differences and similarities between the European Union and the United States in Patent Law, Copyright Law, Trademark Law, Banking Law, and Securities Law. Therefore, the covered areas of law are: Differences and similarities between the European Union and the United States in financial markets law: banking law, and securities law. Differences and similarities between the European Union and the United States in intellectual property law: patent law, copyright law, and trademark law. The thesis offers a fairly comprehensive yet summarized analysis of the differences and similarities of the EU and the U.S. in the fields of financial markets law and intellectual property law. This thesis can serve as a general overview to business people, policy makers, lawyers and judges dealing with the covered areas of law. For instance, corporate lawyers considering whether to initiate the IPO process in the U.S. or within the EU in his/her client’s behalf, companies considering the pros and cons of either filing for a patent in the U.S. or in an EU member state, and so forth could find the insights from this comparative study useful. This 80 pages thesis does not naturally replace seeking legal advice from experts in financial markets law and intellectual property law, since all the nuances of financial markets law and intellectual property law could not be covered in this study. This thesis can also be useful for legal scholars since the approach adopted in this study to include more than a legal concept or field of law exemplifies that conducting comparison on a wider scale, ‘meso-level comparison’, can be a fruitful approach to gain an overall picture of the differences and similarities of fields of law while enabling comparisons both within regions/countries as well as within fields of law themselves. Such additional comparative aspect can under some circumstances lead to unanticipated yet useful insights that might have otherwise been overlooked. For example, due to this approach one of the findings of this study among others includes that similarities in financial markets law and intellectual property law are partly explained by international harmonization efforts.
  • Husa, Jaakko (2020)
    This case-note analyses the case of Alexandru Marian Iancu v. Romania, decided by the European Court of Human Rights in February 2020. The comment addresses two essential issues involved. The first issue concerns potential partiality of a judge who has been involved in overlapping proceedings. The second issue concerns the judicial method the Court uses in its reasoning. The note explains the background to the judgment, summarizing the facts leading to the judgment and the human rights issues before the Court. Then the proceedings before the Court and the Court?s decision are reviewed, before commenting on the judgment?s key points of significance for human rights law and use of comparative law as a part of human rights reasoning. The critical focus is on the comparative approach deployed by the Court.
  • Husa, Jaakko (2021)
    The relationship between comparative law and public international law is paradoxical. These fields are in principle close to each other but remote in practice. The emergence of comparative international law has changed the situation as it invites comparative law scholars to enter into discussion on international law. This article provides a critical analysis on the possibilities for comparative law in the field of international law. It discusses and explains why a non-normative understanding of comparative international law works well together with the pluralist conception of comparative law, and why a normative understanding of comparative international law is incompatible with it. This article explains why comparative law scholars do not welcome the use of comparative law for international law purposes with open arms.
  • Umbatova, Nailja (Helsingin yliopisto, 2020)
    The principles of separate corporate personality and limited liability are immutable characteristics of the modern corporate form. Together they create a regime of asset partitioning in company law, which means that, as a statutory default rule, the property of a company is separate from the personal assets of its shareholders and it cannot be used to satisfy the owners’ personal debts. Reversely, corporate shareholders are not generally liable for obligations incurred in the name of the company, with corporate creditors being able to seek enforcement solely against the assets of the indebted entity. Veil piercing is a company law doctrine, which allows the courts to derogate from statutory principles of separate corporate personality and limited liability by holding a shareholder personally liable for debts owed in the name of the firm. Piercing is employed as a weapon against owner opportunism and is generally seen as an option of last resort in the face of the abuse of the corporate form. This paper examines and compares the development of veil piercing in the legal systems of Finland and the United Kingdom (UK), with the aim of highlighting material similarities and differences in the preconditions for its application. While both legal systems unequivocally recognize the existence of a general doctrine of corporate veil piercing, they do so in the absence of any statutory provisions to this effect. Instead, the doctrine has been formulated and developed through the case law of the national courts, with the decision of the Finnish Supreme Court in KKO 2015:17 and that of the UK Supreme Court in Prest v Petrodel Resources Ltd (Prest) constituting the main modern authorities in this area. As the basis of the compared doctrines is rooted in judicial reasoning, this paper uses the traditional legal dogmatic method to examine and interpret key judgements from both jurisdictions with the aim of establishing existing law. However, the primary objective of this paper is that of functional comparison, as it seeks to discern the substantial similarities and differences between the two legal systems in their approach to the issue of the abuse of the corporate form. Based on an analysis of sources from both jurisdictions, this paper identifies four common factors that should arguably form part of any authoritative future formulation of the piercing test in both Finland and the UK: (i) an element of unconscionability, (ii) significant harm to the protected interests of third parties, (iii) the shareholder exercising actual control over corporate affairs and (iv) a lack of any meaningful administrative and economic independence on the part of the affected entity. However, despite finding such surface-level similarities between the two piercing doctrines, this paper goes on to conclude that the approaches adopted by the Finnish and the UK courts in veil-related cases are fundamentally different. While the Finnish Supreme Court in KKO 2015:17 managed to identify specific, albeit not exhaustive, preconditions capable of future application, the UK Supreme Court’s judgement in Prest has effectively frustrated the role of the doctrine in the legal system, rendering it all but obsolete. Instead, relief is often provided through the application of ordinary principles of English private law, especially the constructs of agency and trusts. In light of the ambiguity and confusion pertaining to the doctrine’s role in the UK legal system, this paper argues that the Finnish courts should view the haphazardous development of veil piercing in the other jurisdiction as a cautionary tale, emphasizing the overwhelming need for a principled approach when judicially derogating from leading statutory provisions in the area of company law.
  • Vinogradova, Ksenia (Helsingin yliopisto, 2020)
    ABSTRACT When does a person have to think about writing a last will and structuring his assets and affairs so that his family members will lately inherit them or other people involved in his life? Surprisingly, not a lot of people start thinking of it early enough to protect wealth and assets to be smoothly and fully transferred to their family members or other heirs. The issue is complicated by the international aspect and the amount of wealth that a modern businessperson owns. The aim of the thesis is to study in depth and name the problems, indicate complexity and find solutions for inheritance succession planning of wealth with the tax perspective. The central figure of the paper is a rich wealth owner that is of HNWI or UHNWI level. Modern families have a lot of possibilities to live in several countries, expand and conduct business internationally, which brings certain complications when one of the family members passes away and the heirs suddenly find themselves in a situation, that half of the estate is given out to pay taxes in several countries, partly assets are stolen in the transition period by the advisors they have never heard about and part is simply lost; business enters crisis and does not provide enough income anymore as the heirs are not interested in the full engagement or are not educated in the sphere. Creditors are waiting around the corner and once having millions and comfortable life the heirs find themselves in a dubious situation. When the succession planning done beforehand, having enough time to structure wealth and assets, get to know tax exemptions and possible tools most of the assets can be retained. What are these tax laws or inheritance procedures that support the advantageous planning for wealth transfer? To provide not a general but a more detailed perspective on differences in procedures, tax regulations and possible solutions, comparative analysis of three jurisdictions is completed. The thesis looks closely into tax optimization rules and instruments such as gifts, trusts and foundations and life insurances. Advantages of the instruments are indicated in general prospective and applying them in concrete legislations and situations. In conclusion, the thesis presents an overview, a practical imaginary situation, and a plan for the wealth owner to adhere. Of importance, for understanding is to mention that concrete situation of each wealth owner is complicated and needs to be analyzed in detail in the context of the entire structure and its relationship with other components.
  • Nuotio, Kimmo Teppo (2019)