Browsing by Subject "oikeustiede"

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  • Sädevirta, Markus (Helsingin yliopisto, 2013)
    This research contains an analysis of the regulations on the conclusion and renewal of fixed-term contracts in the European Union, Finland, France and the United Kingdom. The research analyses how fixed-term employment has been restricted in national regulation before the Framework Agreement on Fixed-Term Work was introduced. Further, the research examines the objectives of the Framework Agreement and assesses how it has been implemented with respect to the limits on the use of successive fixed-term contracts and related sanctions, and thus analyses its effects on national laws in the research countries. The research also examines the relevant case law of the CJEU with respect to the provisions of the Framework Agreement and assesses the extent to which national case law and legal developments after implementation correspond with the legal stance of the CJEU. Based on this analysis, the measures preventing the abuse of successive fixed-term contracts in national laws and their effectiveness in achieving the objectives of the Framework Agreement are assessed. As fixed-term contracts play a central role in the EU employment policy, the research explores whether the stance on acceptable use of fixed-term contracts in EU law and EU employment policy correspond with each other. As the protection against abuse of successive fixed-term contracts laid down by the Framework Agreement is relatively weak, the relation between the Directive on Fixed-Term Work implementing the Agreement and the fundamental rights of the EU is examined to see whether the rights of fixed-term employees should be strengthened by specifying the grounds on which fixed-term contracts can be concluded in EU law. The research methods are legal comparison and legal dogmatics mostly in its prevalent form.The research is divided into six parts. The first part contains the research framework, main research tasks and methodological assumptions. The second part consists of the relevant EU legislation with its evaluation affecting the acceptable use of fixed-term contracts and the development of EU employment policy related to the use of fixed-term contracts. Parts 3-5 cover national law and evaluation in the research framework. The sixth part contains the final remarks, conclusions and summary. The preconditions for using successive fixed-term contracts are not determined precisely in Clause 5 of the Framework Agreement and the fact that the Clause does not have a direct effect as it is addressed to the Member States only and the individual contracts are excluded from its scope, lead to the conclusion that the Framework Agreement has failed in its objective of preventing abuse arising from successive fixed-term contracts, as the recent case law of the CJEU also indicates. When it comes to acceptable use of fixed-term contracts, the research also indicates tension between EU employment law and employment policy. While the CJEU has permitted long sequences, even several years, of successive fixed-term contracts in same job, the purpose of the EU Employment Guidelines is to encourage the use of fixed-term contracts in order to promote the employability of particular groups and to create pathways to permanent employment, but not to permit permanent use of successive fixed-term contracts. These facts support strengthening fundamental rights in EU law in terms of concluding fixed-term contracts. As there are no compulsory requirements regarding the content, level or the scope of sanctions in the Framework Agreement, effective enforcement is almost fully dependent on national law and jurisdiction and the full effectiveness of the EU law remains to some extent incomplete. The effect of Clause 5 as an instrument laying down minimum standards for restricting the use of successive fixed-term contracts in national laws has been extremely modest in the countries researched. In France and Finland, the legislation restricting the use of successive and single fixed-term contracts was already in place, so that no implementation measures were needed. The UK was one of the rare countries which had to introduce completely new measures to implement the Directive. However, the UK legislation implementing the Directive does not suggest considerable improvement in the protection of fixed-term employees. Comparison of the domestic law of the research countries indicates that strict employment security of permanent employment contracts seems to correlate with strict regulation on concluding and renewing fixed-term contracts and sanctioning their abuse. Otherwise, the regulations on use of fixed-term contracts are characterised by strong national legal traditions rather than by the Framework Agreement on Fixed-Term Work, which has not approximated the regulations in this regard. In this sense, the Framework Agreement as a generally determined minimum standard has not managed to improve or create individual rights of fixed-term employees.
  • Salojärvi, Juhana (Helsingin yliopisto, 2013)
    This dissertation examines the history of critical legal scholarship of the 1960s and 1970s in the United States, Scandinavia, and Finland. The purposes are to reconstruct the development of critical scholarship, analyze its substance and motives, and compare the critical scholarship of these countries. The United States and Finland are investigated in more detail, whereas the three Scandinavian countries, Denmark, Norway, and Sweden, are examined collectively and more generally. The time frame of the study covers from the mid-1960s to the end of the 1970s. The research was done by reviewing the published legal literature of the time, from which the critical legal literature was sifted. In this study, the word critical means fundamental criticism of the law and traditional legal scholarship, whereas the term alternative refers to scholarship that is less fundamental in its criticism, but which nevertheless endorses alternative methods of scholarship. The method of the study was based on the perspective of legal history, in which a change in jurisprudence is related to changes in society, culture, and scholarship in general. The study consists of three main chapters which discuss the development of critical legal scholarship in the 1960s and 1970s in the United States, Scandinavia, and Finland. Before the main focus, a general introduction to the history of jurisprudence, scholarship, and society is given in chapter two. After the general introduction, chapter three analyzes the development of critical legal scholarship in the United States. A tradition of alternative and cross-disciplinary legal scholarship had already been established by the beginning of the 1960s, but during that decade more scholars became interested in the relationship between law and society as well as between legal scholarship and the social sciences. A more critical movement emerged in the 1970s, which related problems of law to problems in the deep structures of society. This critical movement evolved into the critical legal studies movement in the late 1970s, adopting a broad philosophical basis for its scholarship. The development of critical legal scholarship in Scandinavia and Finland, examined in chapters four and five, was relatively similar to that of the United States. A tradition of sociology of law emerged in the 1960s, which encouraged legal scholars to investigate the relationship between law and society, as well as between legal scholarship and the social sciences. This trend developed into critical legal scholarship when Marxist elements were brought into it in the 1970s. In Finland, legal scholarship was rather conservative at the beginning of the 1960s, during which, however, alternative elements became more popular. By the end of the 1960s, an attack against traditional legal scholarship emerged. A variety of social science elements as well as Marxism were introduced into critical legal scholarship in the 1970s. Legal scholarship transformed in the countries under examination during the 1960s, adopting more elements from the social sciences. As the 1960s turned to the 1970s, sociological jurisprudence turned more towards criticism of law and legal scholarship. The critical movements acquired a more sophisticated philosophical basis and a more radical tone during the 1970s, and eventually they organized into movements of critical jurisprudence. The fundamental characteristics of the critical movements were the same in each of the countries. The most marked difference was that whereas American critical legal scholarship was mostly comprised of philosophical criticism of doctrine and legal consciousness, Nordic critical legal scholarship had more Marxist and politically oriented elements. Finnish critical legal scholarship was the most radical and political because of the conservative tradition of Finnish jurisprudence and the polarized nature of Finnish society. When seen from a comprehensive perspective, critical legal scholarship of the 1960s and 1970s can best be understood as academic counter-cultures which sought to change the scholarship and academic tradition on the one hand and to have an impact on society on the other.
  • Vilanka, Olli (Helsingin yliopisto, 2014)
    This dissertation is an article based dissertation evaluating position of prosumers, authors and corporations in the information society especially from the viewpoint of Article 27 of the Universal Declaration of Human Rights (UDHR). Prosumers are understood as private natural persons who use content protected by copyright for non-commercial purposes. Similarly authors are understood, following the traditional droit d´auteur copyright theory, as individual natural persons creating content protected by copyright. As it has been argued that role of legal persons, or corporations, has increased as it comes to administering copyright, also their position shall be evaluated and compared to rights of authors and especially prosumers. Article 27 of the Universal Declaration of Human Rights, similarly as copyright theory based on exclusive rights, postulates that content should be both created and used. However, significant amounts of illegal uses of content on the Internet take constantly place. Preventing or denying use should not be in the interest of anyone. Thus the main aim of the book is to evaluate whether something prevents use of content on the Internet and to what extent it may be justified from the viewpoint of Article 27 of the UDHR. In this respect the book analyses article 27 of the UDHR suggesting that the right to science and culture as enshrined in its subsection 1 allows use of content. On the other hand subsection 2 of the Article 27 of the UDHR protects essential economic interests of authors. Although subsection 2 of the article 27 of the UDHR does not grant exclusive rights to authors, rights of authors shall be evaluated from the viewpoint that exclusive rights are being applied. In practice this means evaluating possibilities to administer use of content through exclusive rights and in this respect power relations between prosumers, authors and legal persons. Collective administration of rights, position of intermediaries and applicability of platform fees shall also be examined. Main method for evaluation is legal dogmatic method from fundamental right perspective. It could also be described as a traditional legal doctrine approach describing and systematizing legal sources and arguments containing philosophical insight. Regarding systemizing and interpreting norms, Dworkin s theory of rules and principles shall be applied. The book has also an interdisciplinary approach as it compares individualistic droit d auteur copyright theory to basics tenet from the field of communicational studies. The findings indicate that not only prosumers, but also authors seem to have small role as it comes to administering use of content. Instead role of legal persons seems to be more significant. As fundamental rights protect natural persons such as prosumers and authors, but in principle do not extend their scope to legal persons, and especially to larger corporations, rigorous and strict reading of copyright law often causes challenges from the viewpoint of fundamental rights. Thus the book argues that alternative manners but exclusive rights should be considered in order to secure rights of prosumers and authors as it comes to use of content on the Internet. Consequently some legal political suggestions shall be made.
  • Nieminen-Finne, Hanna (Suomalainen Lakimiesyhdistys, 2020)
    EXPERT AS JUDGE: EXPERT JUDGES OF TECHNICAL AND NATURAL SCIENCES IN ENVIRONMENTAL PROTECTION CASES AT THE ADMINISTRATIVE COURT This dissertation examines the role of expert judges who participate in resolving environmental protection cases at the administrative court of Vaasa, Finland, which is the first appeal instance. These expert judges are either engineers or have a degree in natural sciences. They work as full-time judges. This study is doctrinal and belongs to the discipline of procedural administrative law. In addition, aspects of other areas of law such as procedural law, environmental law, EU law, human rights law and Finnish constitutional law are taken into consideration. The study starts with an overview of modern environmental law and procedural environmental law. Procedural environmental law, that is, the process at the court of appeal, has its own characteristics. The study briefly describes the history of the environmental expert judges and also looks at the other experts who work at the Finnish administrative courts as part-time members, for example, in child welfare cases. Both constitutional and international elements concerning expert judges are taken into consideration. The environment has an important position in the Finnish constitution, and national environmental law has strong connections to EU law. The requirements of fair trial according to the Convention on Human Rights and the European Court of Human Rights are described as well. The most interesting elements of fair trial, from the expert judges’ point of view, are the adversary principle and the independence and impartiality of the court. Access to a court, access to justice and the Arhus Convention form an important part of the various international aspects associated with expert judges. The broad international discussion about the need for expertise and environmental courts or tribunals is highlighted. Several international aspects, such as procedural requirements deriving from EU law and the Arhus Convention, seem to support the system of expert judges. Even the element most critical of the role of expert judges, the adversary principle, does not demand the abolishment of the system of expert judges in environmental cases. The dissertation ends with an overview of the practical aspects of Finnish environmental procedural law and an analysis of the case law of the Vaasa administrative court.
  • Vuorela, Miikka (Helsingin yliopisto, 2021)
    The purpose of this study is to form an overall view of the development of recorded crime, sentencing practices and incarceration rates in Finland during the period of autonomy. Additionally, Finland is systematically compared to the other Nordic countries. A collection of statistics depicting convictions, sanctions and imprisonment in Finland, Denmark, Norway and Sweden in 1809–1917 is also constructed in the study. With the new statistics, incarceration statistics now begin in 1810 and conviction and sanction statistics in 1842. These time series are analysed using quantitative methods in this study. The study consists of three main parts discussing respectively criminality, sentencing practice and the prison system. In the early 19th century crime and its control were concentrated in rural areas and the most common types of convictions were illicit intercourse and timber theft. During the century, convictions were starting to consist more and more of urban misdemeanours such as public intoxications. In the meantime, offences related to the protection of communal moral values, such as illicit intercourse, breach of the sabbath and slander were slowly disappearing from the court agendas. The most important single event affecting the development of criminality in the 19th century was the Finnish famine of 1866–1868 which launched the first recorded crime wave in the history of Finland, causing theft convictions to quadruple in just two years. The chapter on sentencing practices examines the criminal law reforms of the 19th century and the forms of punishment in legislature and court practice. The draconic penal system of the Swedish Civil Code of 1734 faded away during the century and the law was not enacted according to its letter. Executions demanded by the statute were converted to deportations to Siberia, and most corporal punishments were converted in the courts of appeal. The period of autonomy denoted the disappearance of the old forms of punishment and their replacement by the current system of incarceration and fines. This development culminated in Finland in the enactment of the new Criminal Code of 1889. The new law was significantly delayed due to the so-called state night and Finland was left decades behind the other Nordic countries in terms of the criminal justice system. The chapter on incarceration examines the structure and development of the prison system. The Finnish incarceration statistics are also built to their maximum length. Using the new data, it is for the first time possible to study how the imprisonment rates in Finland developed during the 19th century compared to the other Nordic countries. Incarceration rates began to differ in 1867. The number of prisoners decreased in Denmark, Norway and Sweden but remained stable in Finland. By the end of the century, the Finnish incarceration rate was significantly higher than in the other Nordic countries. The effects of the deportations from Finland to Siberia on the Finnish imprisonment rates and the severity of the criminal justice system is analysed for the first time in the study. The effects of the deporations may perhaps best be demonstrated by noting that during the 1870s Finland had in Siberia a second incarceration system which was as large as the one in Finland. The inclusion of the deported in the analysis of incarceration rates shows that the Finnish criminal justice system at the end of the 19th century was significantly more severe than in the other Nordic countries.
  • Paunio, Elina (Unigrafia, 2011)
    This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.
  • Hurri, Samuli (2011)
    The modern subject is what we can call a self-subjecting individual. This is someone in whose inner reality has been implanted a more permanent governability, a governability that works inside the agent. Michel Foucault s genealogy of the modern subject is the history of its constitution by power practices. By a flight of imagination, suppose that this history is not an evolving social structure or cultural phenomenon, but one of those insects (moth) whose life cycle consists of three stages or moments: crawling larva, encapsulated pupa, and flying adult. Foucault s history of power-practices presents the same kind of miracle of total metamorphosis. The main forces in the general field of power can be apprehended through a generalisation of three rationalities functioning side-by-side in the plurality of different practices of power: domination, normalisation and the law. Domination is a force functioning by the rationality of reason of state: the state s essence is power, power is firm domination over people, and people are the state s resource by which the state s strength is measured. Normalisation is a force that takes hold on people from the inside of society: it imposes society s own reality its empirical verity as a norm on people through silently working jurisdictional operations that exclude pathological individuals too far from the average of the population as a whole. The law is a counterforce to both domination and normalisation. Accounting for elements of legal practice as omnihistorical is not possible without a view of the general field of power. Without this view, and only in terms of the operations and tactical manoeuvres of the practice of law, nothing of the kind can be seen: the only thing that practice manifests is constant change itself. However, the backdrop of law s tacit dimension that is, the power-relations between law, domination and normalisation allows one to see more. In the general field of power, the function of law is exactly to maintain the constant possibility of change. Whereas domination and normalisation would stabilise society, the law makes it move. The European individual has a reality as a problem. What is a problem? A problem is something that allows entry into the field of thought, said Foucault. To be a problem, it is necessary for certain number of factors to have made it uncertain, to have made it lose familiarity, or to have provoked a certain number of difficulties around it . Entering the field of thought through problematisations of the European individual human forms, power and knowledge one is able to glimpse the historical backgrounds of our present being. These were produced, and then again buried, in intersections between practices of power and games of truth. In the problem of the European individual one has suitable circumstances that bring to light forces that have passed through the individual through centuries.
  • Vesala, Juha (IPR University Center, 2015)
    Innovation the development of new or improved products and technologies is a major source of economic welfare and growth. Due to its advantages, policy-makers seek to promote innovation in markets by addressing market failures that threaten innovation, such as the risk of free-riding through grant of intellectual property rights ( IPRs ) and concerns raised by market power in antitrust law. This article-based dissertation examines how antitrust (Articles 101 and 102 of the Treaty on the Functioning of the European Union) could treat certain practices involving IPRs in a way amenable to innovation. This poses a major challenge because practices often simultaneously involve aspects that are desirable for innovation (e.g. as a means of recouping investments) and harmful to it (e.g. lessening competitive pressures to innovate). Therefore, trade-offs are required between these conflicting aspects. However, as many innovation aspects are theoretically and empirically ambiguous, antitrust choices must be made under considerable uncertainty. Using methods of theoretical legal dogmatics and arguments from economics, the study develops approaches for the antitrust treatment of certain practices involving IPRs (misuse of IPR application procedures, enforcement of standards-essential patents, and conditions of licensing). As its main result, the study offers analytical approaches and antitrust standards that allow courts, authorities and firms to assess practices. The study finds, for instance, that although antitrust normally does not limit enforcement of IPRs, recourse to injunctive relief by essential patent holders can violate antitrust due to the specific context of standard-setting in which failure to uphold promises to license essential patents threatens competition, standardization and innovation. The study also presents broader observations on the role of antitrust protection of innovation. EU antitrust breaks new ground in extending its scrutiny to conduct in IP application and enforcement procedures, but this does not diverge from the established premise of antitrust only exceptionally intervening in the core of IPR. While conventionally antitrust has mostly been seen as limiting the exercise of IPRs, some practices examined interestingly highlight the possibly increasing role of antitrust in protecting IP holders interests and safeguarding rewards of innovators.
  • Mansnérus, Juli (Helsingin yliopisto, 2016)
    Advanced therapy medicinal products (ATMPs), is a heterogeneous class of modern biotechnology medicines encompassing products based on genes, cells and tissues. ATMPs provide new therapeutic opportunities for many diseases and debilitating injuries to the human body, particularly in the disease areas where conventional treatments have proved insufficient. The ATMP Regulation was set up as a lex specialis to ensure the free movement of ATMPs within the EU in order to facilitate their access to the internal market, and therefore to foster the competitiveness of European pharmaceutical companies while guaranteeing the highest level of protection of public health. Since adoption of the Advanced Therapy Medical Product Regulation (EC) No. 1394/2007 (the ATMP Regulation) only 6 ATMPs have been granted marketing authorisations and 4 of them are still on the market. The primary objective of this study is to analyse the benefits and limitations of the ATMP Regulation from the perspective of SMEs, academia and non-profit organisations that develop ATMPs. Secondly, it discusses the kind of amendment to the ATMP Regulation and related regulatory instruments and processes required to accelerate translation of research into advanced therapies and to facilitate commercialisation of ATMPs whilst ensuring the safety of patients. In addition, it analyses implications of the EU s limited mandate in the field of public health for developers of ATMPs. This study also investigates whether barriers to commercialisation relate to ATMPs as such or whether something else in the innovation system is impeding their market entry. As an example of potential ATMPs undergoing development, it also considers some specific, regulatory and moral patenting obstacles that impede the market entry of human embryonic stem cell-based products. To foster research on ATMPs, regulators must take measures to create a facilitative regulatory environment that encourages innovation, protects public health and, finally, enables timely patient access to innovative therapies. Risk-proportionate approaches to clinical trials and GMP manufacture along with the European Medicine Agency s early access incentives and initiatives are presented as potential facilitators of market entry. The main regulatory measures suggested to foster innovation, improve safety and access to advanced therapies include: facilitating R and D by adaptive, risk-proportionate approaches to clinical trials and GMP manufacture, streamlining the ATMP Regulation (classifications and rules on so-called hospital exemption, in particular) and simplifying regulatory processes for ATMPs.
  • Hirvonen-Ere, Suvi (Helsingin yliopisto, 2021)
    This monograph is a multidisciplinary doctoral dissertation under the socio-legal umbrella. The topic dictating the chosen methods is Contract Management. The context is large and complex project type of business contracts between global corporations and other large international private sector businesses. Although the underlying perspective is from inside of an operating business organization and its professional in-house Contract Management department mainly on the sell-side, examples on the buy-side are also utilized. The industry field is primarily ICT, but sources from construction and military are also used. Via utilizing, inter alia, the goal-oriented teleological method, the values underpinning the study are looking at a contract and contracting through the so-called Contract Management lens and proactively seeking coherence, collaboration, and mutually beneficial contract outcomes between the parties on a long-term basis. The study defines Contract Management as an international systemic business contract approach to manage the contract lifecycle and to orchestrate a corporation's legal, commercial and contractual business contract activity in a coherent manner, on a high-end maturity level. Such an approach brings significant direct monetary value and strategic competitive advantage to companies that apply it. Contract Management aims to increase the contractual quality, efficiency and risk/reward balance of a company’s business contracts, and decrease the amount of wasted money, time, resources and quality. This leads to a better relationship between the parties, and fewer disputes and contractual conflicts. Contract Management provides the parties, inter alia, with a flexible framework to agree upon changes and settle claims and proactively prevent risks over the contract lifecycle. Contract Management achieves this via utilization of so-called war stories and lessons learned and developing them further to produce best practices, processes and policies, and via using tools, such as software systems, to facilitate the Contract Management modus operandi. This study acknowledges that there is no one-size-fits-all Contract Management applicable globally and approaches the broad topic of Contract Management via the following research questions: 1. What is Contract Management and why does it matter? 2. How does Contract Management lead to the expected benefits in the contracting practice? 3. Are the legal aspect and passing the legal test sufficient to constitute a large and complex project type of a business contract? 4. What are the other aspects of a contract? Are they needed to constitute a coherent ‘contract (as) integrity’ (ex analogia Ronald Dworkin’s iconic law as integrity)? 5. One underlying question of the research is asked by an American philosopher, pragmatist William James: “What concrete difference does it being true make in any one’s actual life…?” Translated into the legal and business language: if what this dissertation argues is true, what difference would enhanced adoption of Contract Management modus operandi make to the legal quality of contracts and to the businesses that apply it? What should companies start doing differently tomorrow? The study is structured as follows. The Prologue sets the scene by presenting the scandalous Enron case and its relation to Contract Management. Chapter 1 introduces the study. Chapter 2 explains various definitions of Contract Management. Chapter 3 presents an example of contracts in action via the scope creep problem and Contract Management solutions to it, and explains how the choices over the commercial model, delivery model and contract strategy affect the likelihood for scope creep to arise. It also explains how to mitigate the impact of scope creep. Chapter 4 explains why the legal aspect of a contract is not sufficient in itself, and Chapter 5 explains what the other contractual aspects are and how they affect the coherence of contract. Chapter 6 concludes the study by presenting a contract as a multi-aspect, multidisciplinary, coherent ‘contract as integrity’. Contract Management is the glue, or mortar, between the bricks, that binds all aspects of a contract and a company’s contracting activity together. This study proposes several solutions that can be implemented in the contract practice to mutually benefit both parties. In addition, the study has resulted in the creation of a visual metaphor, showing a contract as a multi-cup scale (inspired by the scales of justice). Further, the dissertation takes steps towards creating a theory of contractual balances. As Contract Management is a very broad theme, it also proposes topics for future research. The Epilogue ponders whether it will be possible to close the circle started by the Enron case. If yes, what would that imply? What did we learn from the Enron case, if indeed we learned anything? Key words: Contract Management, Contract Lifecycle Management, Enron, scope creep, change management, contract as integrity, coherence
  • Huuskonen, Mikko (Helsingin yliopisto, 2006)
    The study concentrates on the introduction and background motive of technology related change of copyright law as reflected mainly in the Berne Convention due to the technological and economic necessities experienced in the early 20th century. The purpose of this study is to understand a development which has led to the adaptation of licensing regimes that are not based on traditional exclusivity approach. Voice recording, broadcasting, rebroadcasting, and photocopying serve as main examples of the development. Also the impact of internet and mobile technologies are discussed. The method is based on institutional theory of law, and makes broad use of both economic analysis and historical documentation. The problem of the legislator's choice on how to structure copyright law between the two alternatives, exclusive property or liability approach, has risen constantly throughout the 20th century. The main conflict of interest seems to be between the exclusive right of the copyright holder, and the interests of users, that is, both the commercial and end users. The secondary use of copyright material is a rapidly growing form of copyright use. This creates controversies arising in that particular field of commercial use. Exclusivity is often regarded as the essence of copyright. However, the development of communication technology has allowed new forms of use that are not as well directly controllable by the relevant parties as was the publishing and sale of books. The new technology-enabled phenomenon is mass use in its different forms. Mass use means use of copyright protected works in large quantities in a manner that is either impossible or prohibitively costly to trace, identify and bill. This development which is common to practically all technological innovations of the 20th century questions the accuracy of the exclusivity approach to copyright. This study explores technology related change of the copyright institution, and how copyright is developing from a system based on exclusivity towards a system of compensation increasingly adopting elements of compulsory - that is, involuntary - licensing and its variants. Secondly, on a more general level, the study attempts to formulate a conclusion concerning the impact of technological change on copyright. Exclusivity remains the theoretical and logical starting point of copyright legislation and nearly any analysis of copyright, scientific or within legal practice. Anyhow, the 20th century development has introduced a new set of regulations attempting to limit overly powerful legal positions and thus to protect interests relating to development of new technologies and businesses. This has largely taken place by some form of compulsory licensing. The broad use of platform fees is an illustration of this development in its extreme. The origin of this development is in the belief to scientific progress and innovation in the early 20th century (the development motive). The study suggests that a more coherent approach towards copyright may be reached by studying copyright as a system of compensation, rather than a system of full control of the use of copyright protected matter. This also corresponds to the evolving set of beliefs of the copyright ideology. Exclusivity has not disappeared from the overall picture, but shall be reserved to those forms of use where it is applicable. That is, where copyright is directly controllable by the author or other copyright holder without prohibitive overall consequences as to other right holders, users, businesses, or the society.
  • Günsberg, Patrick (2015)
    Drawing on a comparative approach this study discusses the criminalization of the so-called hard-core cartels and suggests that despite possible pitfalls it continues to be a worthy endeavor. It seems that the integrity of the criminal justice system warrants the introduction of a criminalized anti-cartel regime, a project that should be on the agenda for all modern economies, including Finland and Sweden. However, one should not rashly proceed with such a vast project without carefully considering all the components that go into a successful regime lest the project become an asset turned into a liability. Crucially a failure regarding one or few components may undermine the whole project, as the UK experience may confirm. In the gravest cases criminal law alone could communicate adequately the blameworthiness of a given conduct: cartels impair one of the core pillars of our society, the market economy on which individuals depend in an attempt to ensure their own welfare. Indeed the bold disobedience to the whole system appears to be at the core of what is delinquent about cartels. Overcriminalization critique concerning a possible criminalization of cartel conduct seems to ignore the moral educative function of criminal law. The public may come to denounce behavior that was previously perceived to be neutral in moral terms one may think of the environmental offences for instance. Certainly public opinion could be shaped by experts views in complex fields of law. A coherent EU criminal policy and a national one for that matter, with regard to cartels should promote uniformity: the credibility of the criminal justice system is supported by criminally banning violations of a similar penal value. The justification for an exclusively administrative mode of anti-cartel enforcement appears vague. It seems that administrative sanctions could be properly adopted only against minor offences, whereas cartels as an egregious violation of competition law do not seem to fall within that category. Arguably, cartel conduct warrants the ultimate condemnation provided only by criminal law. Other measures would not produce the stigmatizing label on a par with criminal measures. Several EU member states have introduced criminal cartel offences whereas similar rules are absent at the EU level. In that regard it may be noted that it would hardly make for a coherent EU criminal policy if larger cross-border cartels did not prompt criminal liability whereas at the national level cartels were caught by criminal prohibition. Moreover, it may be argued that the UK problems with the cartel offence stem partly from the lack of harmonization in the EU, which may have also contributed to the misguided policy of relying exclusively on administrative sanctions in Finland where individual liability is completely absent. While the optimal deterrence theory cannot alone be relied upon to back a cartel criminalization project, it may remain a point of continued interest in the cartel criminalization debate due to its theoretical appeal. All in all, there are several commentators and jurisdictions that rightly acknowledge the value of a mixture of measures being available in the fight against cartels, including director disqualification orders, fines and custodial sanctions.
  • Pirjola, Jari (Helsingin yliopisto, 2013)
    Dark and bright sides of human rights. Towards pragmatic evaluation Human rights are interplay between theory and practice. On the one hand human rights are conventions, rules and standards on the other hand these same conventions and standards receive their meaning in professional practice. An agreement of human rights in abstract level does not provide us with guidance as to what is needed for their implementation in practice. Human rights do not only set limits as they also create opportunities. Thus, in the service of practice, human rights can start to produce good and bad practical consequences depending on the perspective to the matter. My thesis consists of 7 articles and an introduction that complements them theoretically. The seven articles that form the substance of my thesis discuss human rights both from theoretical as well as from practical perspective. The articles can be divided into two different groups, even though they have many common themes. The first two articles analyse, on a rather theoretical level, the operation of human rights in a multicultural world. The second group of articles (3,4,5,6 and 7) discuss the use of human rights in different practical contexts. My study has two levels. On one level each individual article addresses particular research questions and provides conclusions on them (article level). In the introduction (introduction level) the articles are discussed from the theory practice perspective. The seven articles use different legal strategies and writing techniques in discussing human rights as a theory and practice. There are many ways to explore human rights, as different professional or academic contexts and situations require different strategies and languages. I use concepts, techniques and approaches that draw on traditional legal writing and legal analysis, approaches that are affected by more critical legal writing as well as concepts and approaches that are affected by discussions and methodologies in cultural anthropology. The general aim of my research is to discuss dynamics of the interaction between abstract rights and their practical realisation. The operation of rights is also examined from pragmatic perspective. The pragmatic approach to rights is concerned with the practical operation and concrete results of human rights in concrete situations, not with what human rights are claimed to be in the abstract. Pragmatic approach is interested in what kind difference do human rights make in practice, which purpose does human rights language serve and who are included and who are excluded from the protection of rights. From pragmatic perspective the abstract idea of promoting and respecting human rights emerges as overly simplistic, even clichéd, demand as in practice human rights can be invoked in support of almost any purpose or goal.
  • Lindroos-Hovinheimo, Susanna (2011)
    This study discusses legal interpretation. The question is how legal texts, for instance laws, statutes and regulations, can and do have meaning. Language makes interpretation difficult as it holds no definite meanings. When the theoretical connection between semantics and legal meaning is loosened and we realise that language cannot be a means of justifying legal decisions, the responsibility inherent in legal interpretation can be seen in full. We are thus compelled to search for ways to analyse this responsibility. The main argument of the book is that the responsibility of legal interpretation contains a responsibility towards the text that is interpreted (and through the mediation of the text also towards the legal system), but not only this. It is not simply a responsibility to read and read well, but it transcends on a broader scale. It includes responsibility for the effects of the interpretation in a particular situation and with regard to the people whose case is decided. Ultimately, it is a responsibility to do justice. These two aspects of responsibility are conceptualised here as the two dimensions of the ethics of legal interpretation: the textual and the situational. The basic conception of language presented here is provided by Ludwig Wittgenstein s later philosophy, but the argument is not committed to only one philosophical tradition. Wittgenstein can be counterpointed in interesting ways by Jacques Derrida s ideas on language and meaning. Derrida s work also functions as a contrast to hermeneutic theories. It is argued that the seed to an answer to the question of meaning lies in the inter-personal and situated activity of interpretation and communication, an idea that can be discerned in different ways in the works of Wittgenstein, Derrida and Hans-Georg Gadamer. This way the question of meaning naturally leads us to think about ethics, which is approached here through the philosophy of Emmanuel Levinas. His thinking, focusing on topics such as otherness, friendship and hospitality, provides possibilities for answering some of the questions posed in this book. However, at the same time we move inside a normativity where ethics and politics come together in many ways. The responsibility of legal interpretation is connected to the political and this has to be acknowledged lest we forget that law always implies force. But it is argued here that the political can be explored in positive terms as it does not have to mean only power or violence.
  • Huovinen, Leena (Helsingin yliopisto, 2009)
    Verkkari 2009 (6)
  • Makkonen, Timo (Helsingin yliopisto, 2010)
    A peculiar circumstance characterizes the fight against racial and ethnic discrimination. On the one hand, international legal protection against these forms of discrimination appears to be exceptionally strong. Discrimination on the basis of race is prohibited virtually by every key human rights document. The International Convention on the Elimination of all forms of Racial Discrimination has been ratified by none less than 173 countries. The EU Racial Equality Directive, for its part, has raised the standard of protection to an entirely new level across the EU. On the other hand, racial and ethnic discrimination is still rampant everywhere in the world, including Europe. According to a large-scale survey published by the EU Agency for Fundamental Rights (FRA) in 2009, some 30% of the persons belonging to the surveyed immigrant and minority groups have experienced discrimination on account of their origin in the course of the past 12 months. Other quantitative and qualitative research undertakings have confirmed the high prevalence of discrimination in our contemporary societies. Contrary to popular beliefs and media reports that portray discrimination in terms of relatively rare incidents perpetrated by people belonging to rather marginal extremist movements (neo-nazism, skinheads, extreme right-wing groups), it is argued that contemporary forms of discrimination are recurring, take typically place in the course of everyday life (work, education, leisure), are often subtle (yet significant), and that it is ordinary people rather than extremists that tend to engage in it. Moreover, the study analyses the causes and consequences of discrimination, and concludes that discrimination and the disadvantage it engenders form a vicious circle that is very difficult to put a stop to. The study sets out to analyse the gap between the ideal and the real , the law and the reality. It analyses the contemporary forms of discrimination and how the international and European law attempts to cope with it. The approach is multidisciplinary: research findings from sociology and social psychology are used to analyse contemporary forms of discrimination and its causes and consequences, as well as to assess the effectiveness of the different possible countermeasures. Ordinary methods of legal interpretation are used to examine the current legal response to discrimination. The study concludes that one of the key reasons why the legal protection offered by the international and European legal instruments is not effective is that it relies rather exclusively on an individual litigation based model of enforcement. This model is not particularly effective, because people who experience discrimination face many different hurdles in bringing legal action, in particular with respect to proving their cases. Indeed, only some 18% of the victims of discrimination report their experiences to the authorities or at the organisation where the discrimination took place. Overall, the study argues in favour of a need to engage in active policies for the promotion of equal rights and equal opportunities. It explores tools such as data collection, positive action and positive duties, and analyses how these can be used to promote equality. It moreover analyses and acknowledges the limited effectiveness of also these tools, and concludes that it will likely be the case also in the future that some individuals are equal in law but unequal in fact.
  • Jääskinen, Niilo (Helsingin yliopisto, 2008)
    The Europeanization of Law – Jurisprudential Problems The study’s point of departure is to use the evolution of EU Law as a huge societal experience providing us with insight that enables us to test the tenability of the basic theoretical constructions of analytical legal positivism. The thesis consists of a collection of articles and a summary. The summary forms, at an abstract legal-theoretical level, a rational reconstruction of the themes discussed in the articles. The summary updates the articles and provides a rational “legal-theoretical” reconstruction of the themes addressed in the articles. This reconstruction is based on an orthodox understanding of EU law as an autonomous legal order that is valid as applicable binding law in the Member States but retains its independent character as EU law and is not merged into national law. This entails that Europeanization leads to an asymmetric view of valid law: for national judges valid law is a combination of national and European law; for EU judges, valid law is only EU law. In the summary, the different interpretations that can be given to the concept of Europeanization of law are analysed on the basis of a conceptual framework that makes a distinction between propositional/behavioural and concrete/abstract aspects of law. The framework is inspired by J.W.Harris’s distinction between momentary and non-momentary legal systems and Kaarlo Tuori’s three-level model of law. This leads to a conceptual stipulation that distinguishes between the legal order (concrete/propositional), juridical practices (concrete/ behavioural), the legal system (abstract/propositional) and legal culture (abstract/behavioural.In the context of the legal order the issues discussed include the ultimate rules (Grundnorm,Rule of Recognition) that form the foundations of legal order and the representation of Europeanized law as contextual fields of consistent normative meaning based on both national and European sources. The discussion of the Europeanization of juridical practices addresses such questions as the penetration of European law into national legislation and adjudication. Concerning Europeanization of the legal system the discussion takes up such themes as conceptual divergence between EU law and national law, fragmentation of national law, the metaconstitutional paradox in the EU and the relation between European democracy and EU law.Finally, the chapter on legal culture proposes a hermeneutic understanding of the concept of legal of culture as unarticulated Vorverständniss, and links the discussion of the approximation of legal cultures in the EU to Aulis Aarnio’s theory of legal audiences.
  • Staffans, Ida (2011)
    This thesis explores the particular framework of evidentiary assessment of three selected appellate national asylum procedures in Europe and discusses the relationship between these procedures, on the one hand, and between these procedures and other legal systems, including the EU legal order and international law, on the other. A theme running throughout the thesis is the EU strivings towards approximation of national asylum procedures and my study analyses the evidentiary assessment of national procedures with the aim of pinpointing similarities and differences, and the influences which affect these distinctions. The thesis first explores the frames construed for national evidentiary solutions by studying the object of decision-making and the impact of legal systems outside the national. Second, the study analyses the factual evidentiary assessment of three national procedures - German, Finnish and English. Thirdly, the study explores the interrelationship between these procedures and the legal systems influencing them and poses questions in relation to the strivings of EU and methods of convergence. The thesis begins by stating the framework and starting points for the research. It moves on to establish keys of comparison concerning four elements of evidentiary assessment that are of importance to any appellate asylum procedure, and that can be compared between national procedures, on the one hand, and between international, regional and national frameworks, on the other. Four keys of comparison are established: the burden of proof, demands for evidentiary robustness, the standard of proof and requirements for the methods of evidentiary assessment. These keys of comparison are then identified in three national appellate asylum procedures, and in order to come to conclusions on the evidentiary standards of the appellate asylum procedures, relevant elements of the asylum procedures in general are presented. Further, institutional, formal and procedural matters which have an impact on the evidentiary standards in the national appellate procedures are analysed. From there, the thesis moves on to establish the relationship between national evidentiary standards and the legal systems which affect them, and gives reasons for similarities and divergences. Further, the thesis studies the impact of the national frameworks on the regional and international level. Lastly, the dissertation makes a de lege ferenda survey of the relationship between EU developments, the goal of harmonization in relation to national asylum procedures and the particular feature of evidentiary standards in national appellate asylum procedures. Methodology The thesis follows legal dogmatic methods. The aim is to analyse legal norms and legal constructions and give them content and context. My study takes as its outset an understanding of the purposes for legal research also regarding evidence and asylum to determine the contents of valid law through analysis and systematization. However, as evidentiary issues traditionally are normatively vaguely defined, a strict traditional normative dogmatic approach is not applied. For the same reason a traditionalist and strict legal positivism is not applied. The dogmatics applied to the analysis of the study is supported by practical analysis. The aim is not only to reach conclusions concerning the contents of legal norms and the requirements of law, but also to study the use and practical functioning of these norms, giving them a practcial context. Further, the study relies on a comparative method. A functionalist comparative method is employed and keys of comparison are found in evidentiary standards of three selected national appellate asylum procedures. The functioning equivalences of German, Finnish and English evidentiary standards of appellate asylum procedures are compared, and they are positioned in an European and international legal setting. Research Results The thesis provides results regarding the use of evidence in national appellate asylum procedures. It is established that evidentiary solutions do indeed impact on the asylum procedure and that the results of the procedure are dependent on the evidentiary solutions made in the procedures. Variations in, amongst other things, the interpretation of the burden of proof, the applied standard of proof and the method for determining evidentiary value, are analysed. It is established that national impacts play an important role in the adaptation of national appellate procedures to external requirements. Further, it is established that the impact of national procedures on as well the international framework as on EU law varies between the studied countries, partly depending on the position of the Member State in legislative advances at the EU level. In this comparative study it is, further, established that the impact of EU requirements concerning evidentiary issues may be have positive as well as negative effects with regard to the desired harmonization. It is also concluded that harmonization using means of convergence that primaly target legal frameworks may not in all instances be optimal in relation to evidentiary standards, and that more varied and pragmatic means of convergence must be introduced in order to secure harmonization also in terms of evidence. To date, legal culture and traditions seem to prevail over direct efforts at procedural harmonization.
  • Haapanen, Anna (Helsingin yliopisto, 2017)
    The study concerns overlapping intellectual property rights patents and copyrights in computer programs under the US and EU law including the national laws of Finland. The focus of the study is the less frequently studied subject of patents in context of free and open source software (FOSS) licensing and specifically, exhaustion of patents and grant of implied patent licenses in context of FOSS. The main research questions are: What is the exposure to FOSS licensor's patent portfolio based on sale, licensing and/or mere distribution of FOSS? What forms of FOSS licensing may trigger exhaustion of patent rights in computer programs under statutory and/or case law of the US and EU? In what circumstances may FOSS licensing trigger implied patent rights under the US or EU law (mainly laws of Finland in Nordic context) even in the absence of express grant of patent rights in the FOSS (copyright) licenses subject to the study. In order to understand exhaustion of software patents and grant of implied patent licenses, also copyright exhaustion and express copyright licensing as well as related contract theories are examined in FOSS context. In addition to copyright law, also contract law is used as a tool in the study despite that the main research questions concern patent law. The results of the study include that FOSS licensing may constitute sale of software triggering exhaustion of patents in copies of FOSS program. Further, FOSS licensing may trigger, based on the totality of the circumstances, an implied patent license despite that the FOSS licenses subject to the study do not include express patent license grants. Finally, despite the differences in the legal doctrines and concepts of the US and EU law, the exposure to FOSS licensor's patent portfolio based on patent exhaustion or implied patent license may be similar in the different jurisdictions subject to the study.
  • Hellsten, Jari (Helsingin yliopisto, 2007)
    The dissertation comprises four articles which have as a leading theme the relationship between the economic and social factors in EU labour law. The first one, headed On Social and Economic Factors in the Developing European Labour Law discusses EU directives on collective redundancies and transfer of undertakings. The author also criticizes the theory of converse pyramids, according to which the social factors would be generally subordinated to economic factors in EU law. The second article, On the Social Dimension in Posting of Workers , discusses the Posted Workers Directive (96/71) and highlights how it applies within the legal framework set up by the EC Treaty, which also means that a proportionality assessment is applicable to the workers rights under the directive. In the context of the Laval case the author concludes that the ILO obligations of the EU Member States form a valid legal basis for such action in EU law, too, which is based on a combined effect of Article 307(1) EC and general international law. The third article, On the Social Dimension in the Context of EC Competition Law , deals with the interpretation of the relationship between collective labour agreements and competition rules on the basis of the Albany judgment. The immunity of collective labour agreements set up in that judgment is fundamental. The author concludes regarding Article 86(2) EC that it may also cover particular social tasks of general interest. At social security systems this may mean that, as the AOK Bundeskassen judgment shows, certain competition elements included in such systems do not necessarily lead to the application of competition rules. Accordingly, in the Finnish Earnings-Relates Pension Scheme TEL certain inherent restrictions of competition should be regarded as justified under Article 86(2) EC. In the fourth article, From Internal Market Regulation to ordre communautaire social , the author develops a proposal for a new collective labour law paradigm in the EU. It would comprise the leading premises and principles of EU and international labour law: labour is not a commodity (the ILO Constitution), improvement of working conditions (Article 136 EC), respect for EU and international fundamental rights, respect for the European social model (prominent role of collective agreements) and non-discrimination of grounds of nationality. An employer acting against these principles should not enjoy legal protection in EU law. As to the development of collective labour law in the EU, the author adheres to the thesis that in the long run Europeanisation of economy leads to the emergence of a European framework. However, at present it seems to develop essentially through case-law (the Laval and Viking cases).