Faculty of Law


Recent Submissions

  • Lukkari, Hanna (Helsingin yliopisto, 2020)
    The aim of this dissertation is to analyze the significance of the logical phenomenon of paradox for law and its relation to politics. I examine a selection of formal legal and political theories that in different ways understand law as a totality of norms, communications or behaviors, how paradox emerges in these theories, and what implications their understanding of paradox has for the relationship between law and politics. I argue that these legal and political theories can be meaningfully and in a novel way grouped according to their orientation to legal totality and paradox. To my knowledge, there is no research systematically mapping orientations to paradox in legal theory. It is the objective of this dissertation to fill this lack. Paradox presents challenges for formal thought, i.e. thought that analyzes the logic of totalities. Law, considered as a totality or form, gathers a plurality of entities under a common denominator and into a legal order. It is in reflecting on such formalization that we encounter paradoxes. This work aims to contribute to a growing literature on the implications of formalism for contemporary social and political thought by providing a legal theoretical perspective hitherto missing in these discussions. I use as a heuristic device a grouping of formal thought presented by the philosopher Paul M. Livingston. According to this grouping, there are three main orientations in contemporary formal thought to totality: the constructivist-criteriological, the paradoxico-critical and the generic orientation. These orientations arise on grounds of the “metalogical choice”: they prefer to view totality (such as law as a system or order) either as complete but inconsistent (the paradoxico-criticism), or as consistent but incomplete (the constructivist-criteriological and the generic orientation). I will apply, and modify when necessary, this categorization in order to analyze the theories of Hans Kelsen, Niklas Luhmann, Giorgio Agamben, Alain Badiou and Hans Lindahl, and to provide a systematic mapping of how the nature of law as a totality is understood in contemporary formal legal-political thought. Accounts of modern law encounter a paradox, I argue, if they observe law as an autonomous, self-referential totality that claims for itself the right to draw a distinction between itself and non-law. The paradox of autonomous law is that it cannot consistently show that it is itself legal as a totality. The basic problem that this implies is that the legal system or collective is unable to legitimate its existence and identity in response to challenges in any other way than by drawing on its own resources – which precisely is what the challenge targets in the first place. If we think of law as offering a framework within which questions of justice and injustice can be answered, the paradox emerges when we question the justice of this framework itself. The dissertation defends the paradoxico-critical orientation. It argues that the legal system is a paradoxical totality, which implies that there is no neutral metalanguage, such as natural law, that could solve the problem of law’s self-reference for good. This challenges legal theory to show how the problem of nihilistic relativism, the mere perpetuation of the self-referential legal system, can be mitigated and law’s normative authority in society rethought. In Chapter 1, I define the notion of paradox, explicate its meaning and role in formal thought and motivate its application to legal theory. In Chapter 2, I show that in his theory of the basic norm, Kelsen can be understood as oscillating between the constructivist-criteriological position and the paradoxico-criticism, between an attempt at guaranteeing legal order’s consistency in a metalanguage, i.e. legal science, and an acknowledgement of law as an inconsistent totality. In Chapter 3, I interpret Luhmann as a paradoxico-evolutionary thinker: he observes the legal system as constitutively inconsistent but emphasizes the ways in which the system seeks to make this inconsistency unproblematic for functional reasons. In Chapter 4, I show that in systems theory, just like in Kelsen’s pure theory, the politics of the paradox remains unarticulated. I also show that, for Agamben, a paradoxico-critical thinker, the paradoxical articulation of law and politics is exposed in the state of exception, which, in his analysis, has become the new normal, requiring “messianic” politics to deactivate the whole nihilistic sovereign-legal apparatus. For Badiou, the representative of the generic orientation, which I discuss in Chapter 5, what can be said within a language, and by implication a legal system, is pre-determined by that language. Politics, the desire to say the unsayable, is thrown fully outside the language and the legal system to a position from which law’s incompleteness, its incapacity to offer space for justice and politics, can only be disclosed. Both Agamben and Badiou, thus, think about politics as “post-juridical.” In Chapter 6, I show that the very inconsistency and paradox at the heart of the legal order is, for Lindahl’s paradoxico-criticism, the site of the politics of its limits. This dissertation, then, concludes that the paradoxical limits of the legal totality can be understood as the site of politics in law. Taking law’s paradox into account allows for a non-nihilistic conception of politically contestable law and legal authority.
  • Soini, Sirpa T (Helsingin yliopisto, 2020)
    This study examines legal regulation on genetic testing in the health care setting and on the consumer markets, and the various factors behind. Genetic applications for human health hold great promises for precision medicine, but raise also morally sensitive and controversial issues. Values and moral need to be integrated when addressing law in this field, thus the relationship of law, moral, and bioethics is analyzed. The regulatory scene in the biomedical field is complex with transnational laws, ethical codes, guidelines, and other policy papers. For many, the picture is unclear which maintains insecurity in practice, as it may be challenging to separate law from non-law. The notion of legal pluralism is particularly interesting in this context, and is discussed in the study. To manage the scene and pluralism, this study aims to map relevant laws, and other quasi-normative instruments. The study is based on four previously published articles, the contents of which are updated to the current situation in terms of legal regulation (until May 31, 2020) and scientific progress, and further elaborated with a wide range of multidisciplinary literature and court cases, particularly in light of ECtHR’s praxis and argumentation on the margin of appreciation. The methodology is partly legal dogmatic, partly reasoning and multidisciplinary argumentation in the realm of current legal theories. Europe is fragmented in legal approaches to many treatments. Services, goods, and people cross borders. EU and Council of Europe have influence on the member states’ regulation, even though they enjoy wide margin of appreciation in many health-related matters. Biomedical field is dynamic and evolving in science. Therefore, regulatory approaches need careful assessment in terms of need and accuracy, so that basic research and adoption of new applications are not unnecessary hindered. Moral issues and concrete physical risks need to be addressed, but shall not be confused with each other in this regard. The claim for the 4th generation human rights, biorights, aims to protect peoples’ genetic integrity against rapid biomedical progress. The need for and the legitimacy of biomedical regulation should be addressed in multidisciplinary fora, for which bioethics provides a good platform. However, methodology is needed to support its normative suggestions. Moral philosophy can be seen as to lay the ground and concepts for bioethics, thus enabling proper elaboration of moral beliefs.
  • Zhang, Kangle (Picaset, 2020)
    The workings of the financial market contribute greatly to the exacerbation of income and wealth inequality. The rate of return from capital is significantly higher compared to labour and the extreme structural biases at the global level among states and at the domestic level among different groups of people systemically benefit the haves at the cost of the have-nots. The law is central in enabling these operations. Finance as the architecture that structures economic arrangements (so as to achieve goals by stewarding the assets needed) operates through legal arrangements and, perhaps even more importantly, international legal arrangements have normalized economic disparity. The dissertation starts by describing the link between the international financial market and economic inequality. From there, it [i] examines the law of international finance and its relation to inequality, [ii] suggests an explanation for the nonchalance of the financial system and rules therein towards enlarging inequality, and [iii] proposes the inclusion of international financial market into the purview of international law research—the nexus of an international law of finance. The dissertation suggests that an international law of finance would be a field where international lawyers actively engage with the intertwined network of actors and rules in the financial market, where they master the vocabulary and grammar of finance, dissect the distributive significance of the legal design of the financial market, and make good use of their toolbox by examining the role of state in enabling financial market operations. As a performance of such engagement, the dissertation carries out a case study on credit rating agencies. The study examines the source of authority of this small but ubiquitous group of private actors, the significance of their ratings in both domestic and international financial markets, and their role as a cornerstone in the architecture of international finance—largely constructed by only a small number of states. With the state as the central unit of analysis, the international law of finance could shed light on the various ways in which states contribute to, maintain and reproduce the problems of international finance, thereby broadening the imagination needed to deal with global economic inequality.
  • Lundstedt, Tero (Helsingin yliopisto, 2020)
    This thesis is focused on the socialist federal dissolutions of the Union of Soviet Socialist Republics (USSR) and the Socialist Federal Republic of Yugoslavia (SFRY) in the early 1990s, and on a legal rule related to state succession, uti possidetis (juris). Briefly, uti possidetis transforms former internal administrative borders into international borders at the moment of state dissolution, with all the legal ramifications this status change entails. The thesis reconstructs from the events an evolutionary process that led the international community to choose a specific version of uti possidetis regarding the socialist federal dissolutions. After demonstrating the mistakes made in this process, the thesis provides a proposal for an updated version of uti possidetis that can rebalance the legal principles of self-determination and territorial integrity in future state dissolution cases. Part I poses the research question of what are the legal legacies of the socialist federal dissolutions for international law in general and the post-federal successor states in particular? It claims that by a virtue of being a general legal principle, uti possidetis has to evolve alongside the shifting paradigm of the international legal order. After accounting for the evolution of uti possidetis with its application in the decolonization cases since the 1800s, the thesis concludes that this vital process was disrupted in the early 1990s. The chosen mode of application failed to take into account two legally crucial factors: the evolution of the right to self-determination and the unique socialist federal model. As uti possidetis was not updated to factor in these changed circumstances, it was misapplied, causing national fragmentation in the successor states. This has directly contributed to territorial conflicts, out of which Kosovo and Crimea are the most prominent. Part II introduces the two components of a proposed uti possidetis update. Chapter 3 exhibits the internal component, the last applicable legal order of the dissolving state. Chapter 4 presents the external component, the international legal rules regarding the dissolution. The combination of the two at the moment of dissolution generates an update of uti possidetis, titled ‘uti possidetis meritus’. It calls for expanded recognition of internal borders and draws legitimacy from its compatibility with the existing uti possidetis framework. Part III presents the legal aftermath of the socialist federal dissolutions and proposes the meritus formula as a remedy. Chapter 5 gives a comprehensive review of how the right to self-determination was realized in the socialist federal dissolutions and how this caused territorial conflicts. Chapter 6 concludes the argument by exhibiting two potential forms of application for meritus: it can be used to help settle already existing conflicts, as well as to minimize territorial fragmentation in the future state dissolution or independence cases. In sum, the vital evolution of uti possidetis was disrupted in its transformation into a non-colonial context. The legal legacies of the socialist federal dissolutions are the distortion of uti possidetis and the lack of balance between self-determination and territorial integrity in the successor states. Meritus aims to remedy both.
  • Perätalo, Katja (Alma Talent Oy, 2020)
    As many other legal systems, the Finnish law of obligations builds on a separation of contract and tort liability. If the relationship of two parties does not fall into either of these categories, the presumption is that no liability applies: the tort liability act does not apply to contractual liability, and a contract may only be invoked by its parties. While the division of tort and contract liability in theory is quite simple, in practice the interface between tort and contract law also provides for more complex forms of liability. Relationships which are prone to attract these types of liabilities are typical in construction projects, as construction projects often consist of more than two parties that are not bound by the same contract, but that are still contractually connected to each other. The parties are thereby in a position of causing loss or damage to each other in connection with fulfilling their respective contractual obligations, claims relating to which would not fall into the definition of either contractual or tort liability. The dissertation covers these forms of liability in the context of construction projects, which in addition to contractual and tort liability also include joint and several liability and associated rights of regression. The dissertation finds that the Finnish law of obligations indeed recognizes liability beyond traditional contractual or tort liability. In the context of construction projects, this means that contractual liability can apply between parties that are not bound by the same contract, albeit the threshold for this type of liability is high and requires strong support in terms of practical reasoning beyond meeting certain formal criteria. Tort liability can also apply in connection with contractual performance, provided that a contractual breach simultaneously is in breach of non-contractual norms that have not been effectively altered between the relevant parties. Joint and several liability only requires simultaneous existence of liability of two or more parties towards a third party, and therefore, normatively, joint and several liability does not require explicit contract coverage to apply, provided that the liabilities of each of the parties remain within the limits of their respective obligations. Usually, but not categorically, joint and several liability leads to associated regression even without explicit underlying agreements supporting the same. It is noteworthy that in terms of industry practices, the scope of the dissertation clearly covers the exceptions and not the rules. The contractual structure of construction projects tends to drive the basis of claims towards traditional contractual liability even when other types of recourse would be available. This is further emphasized by the fact that the industry widely favours arbitration as a dispute resolution mechanism. These implications are, however, practical and not normative, and thereby only reflect the visibility of these types of relations in practice, not their normative existence.
  • Tan, Xiaowen (Helsingin yliopisto, 2020)
    The dissertation studies the rules of evidence in damages actions for EU competition law infringements. This study examines which norms of EU law and EU law principles govern evidentiary rules in Member States. Further, it discusses ambiguities and open questions in the entirety of EU law that relate to evidence matters in cases involving breaches of EU competition law. The study also investigates the more general theme of the parallel application of EU and national law, in order to explore how the substance and the goals of EU law affect the application of evidentiary rules in private competition enforcement cases. To serve this purpose, this study applies a predominantly legal doctrinal approach. Hence, this study interprets and systemizes relevant EU laws, EU caselaw and soft-law guidance, which provide details regarding evidence-related issues. The challenge in conducting this study also lies in the difficulty of extracting useful and relevant details from a large amount of EU caselaw and legal documents. It takes time, energy and patience to carry out such research. This study consists of six sections. Section 1 introduces the background of this topic (i.e. private enforcement of EU competition law), reviews contemporary literatures on related issues, proposes research questions, limits the scope of this study, and describes the legal doctrinal methodology applied. Section 2 discusses the current legal framework for this study, focusing mainly on the applicable EU principles, EU laws, EU caselaw, and soft-law guidance. Section 3 analyses the burden of proof. This section explores the legal burden to prove the infringement, the burden to prove other elements of liability including the harm and the causal link, and presumptions that are employed to alleviate an overwhelming burden of proof. Section 4 concerns issues related to standard of proof. This section analyses in detail the constitutive requirements for a damage claim and the level of persuasiveness to which claimants should prove. It includes standards of proof for the infringement (in stand-alone cases only), the harm, and the causal link between the harm and the infringement. Section 5 considers the central issue – access to evidence. This section enquires into the available approaches for claimants to obtain sufficient evidence to support their claims. The claimants have, in principle, two options, either to request direct access from competition authorities or to request access indirectly through national courts. Indirect access might target evidence in the hands of competition authorities, a competent review court, the defendant, or a third party. Section 6 concludes the dissertation, first by providing an overview of the issues discussed, second by presenting key findings and further implications therein, and third by looking into future research. This study observes that EU law and CJEU caselaw remain significantly silent on many issues related to evidentiary rules in private enforcement of EU competition law. In case of genuine ambiguities, the CJEU may interpret the Damage Directive and other EU law in the form of preliminary rulings. Thus, the CJEU is capable of incorporating certain features and concepts of the EU competition law into its caselaw that national courts must respect when they apply the relevant evidentiary rules. Such incorporation has given rise to a set of fragmentary and non-systemized rules of evidence when both EU law and national law apply in antitrust damages actions. This condition raises concerns when damages claimants are not certain of the applicable rules they could rely on, or of national courts’ application of those rules, or of the rights and obligations conferred to them by those rules. It also imposes higher requirements on the quality and capacity of national judiciaries and pushes national courts to be fully prepared for damages actions for EU competition law infringements. These features all reinforce the perception of EU competition law and damages actions for EU competition law infringements as highly specialized areas that are not easily accessible by ordinary judges or ordinary victims. Thus, damages actions for EU competition law infringements have deviated from other damages claims in normal civil torts.
  • Tapia Navarro, Nadia Valentina (Helsingin yliopisto, 2020)
    This dissertation focuses on victims of mass atrocities, subjects who are often portrayed in international law discourses as disempowered, passive, defenceless and docile. This portrayal prevents international law operators from evaluating the potential of domestic practices that are not only agentic, but may contribute to the development of international law. In focusing on victims of mass atrocities moreover, this thesis connects international law with domestic practices of victims of mass atrocities that resort to the category of ‘victim’ as well as other categories from international law in their struggles. The main contention of the dissertation is that domestic practices of those who use the language of international law, such as victims of mass atrocities, do not merely adopt such language as it is. Instead, they infuse this language with meanings that support their particular struggles and, through their actions, they also influence the formation of an identity associated with the category of victim. The dissertation consists of four articles and a summarising report. It has two main focal points: first, it focuses on the practices of the International Criminal Court (ICC) with regard to victims of mass atrocities; second, it focuses on cases of victims of mass atrocities that resort to the category of victim and other categories from international law, in Colombia. By contrasting these two, I suggest that there are varied and rich contributions through which victims of mass atrocities themselves can influence not only the shaping of legal categories, but more importantly, their own representations and identity. In Article I, I refer to the work of Jacques Rancière on politics, to reflect on victims of mass atrocity and their participation in the International Criminal Court. In practice, despite including a framework for victims’ participation, the International Criminal Court does not really provide victims with any spaces for self-representation. The reason is that this framework is based on an understanding of these victims as essentially disempowered individuals that must, therefore, be represented by others. This exclusion, I conclude, perpetuates the limited depiction of victimhood. Article II deals with the Peace Community of San José de Apartadó and its use of the category of victim. I show the group has a complex identity that challenges the representations of victims as defenceless and disempowered. I suggest that the group does not simply embrace international law, but attempts to develop it further in creative ways. Article III deals with the Movement of Victims of State Crimes (MOVICE). I show that through the category of victim, Movice attempts to introduce an alternative narrative of the internal armed conflict. I suggest that Movice is an example of how a movement of victims can adopt categories of international law to frame their struggles, and in doing so, infuse them with new meanings. While still focusing on Colombia, Article IV zooms out to include actions that are considered as agentic, as well as those that support the stereotype of the passive and defenceless victim. I suggest that the different actions of both victims and the government contribute to the formation of an identity of the victim, an identity that is never fully realised but always in dispute. Finally, in the summarising report, I reflect upon how the method of this dissertation combines a critical approach to law with an approach from below that considers domestic practices as relevant for international law. Moreover, I discuss three concepts that represent three different perspectives from which I consider the victims of mass atrocities, namely as political subjects, as subalterns, and as a disputed identity. I conclude by reflecting on the possibility of emancipation through the struggles that utilise the language of the law.
  • Talus, Anu (2019)
    In essence, the transparency and data protection regimes draw from different grounds. The aim of the research was to first identify and analyze the different requirements of the transparency and data protection regimes and thereafter seek the solution for balancing the said requirements. The rules examined in this research regulate the disclosure of information and processing of personal data by the EU´institutions. However, the solution for the tension is sought from the European law in a wider perspective. The analysis of the colliding rules draws from normative legal analysis. Critical legal positivism considers the rules only examples of issues pertaining to the surface level of law and this research draws essentially from the separation of rules and principles based on the doctrines elaborated by such scholars as Ronald Dworkin and Robert Alexy. The requirements drawing from the data protection legislation and the transparency legislation are contradictory to a certain extent and the tension on the level of rules is apparent. The most apparent contradiction relates to the purpose limitation principle, which closely relates to the further processing of personal data and the requirements to reason the disclosure of personal data. Simultaneously, the public access regime builds on a basis where applications for the requests of information do not need to be reasoned. However, the collision of rules does not necessarily reflect a collision of the underlying principles and the research will seek the balance between the examined rules by reconciling the underlying principles of the data protection and public access to documents regimes. After the essence of the examined rights has been identified, it will become clear that the collision does not exist on the level of principles. Besides privacy and self-determination, the requirement to have legal basis is considered to form the hard core of protection of personal data. This element also separates it from privacy. It follows that the right to protection of personal data can be reconciled with the right to public access to documents while the essence of both rights are preserved. A suggestion how to reconcile the examined rights will be given and the concluding analysis will also provide tools for balancing the said rights in the current legal framework by interpretation. There has been earlier study in this field of law. However, this study dates from 2007 and significant changes have taken place after that. A recast process on the Regulation 1049/2001 on public access to documents has been launched and a vast EU data protection reform was finished in the spring 2016. Also, the Court of Justice of the European Union has delivered significant decisions concerning the relationship between protection of personal data and transparency after 2007. Besides providing a new angle for seeking the solution by balancing the underlying principles, this research also provides first analysis of the relationship between protection of personal data and transparency in the current legal framework. Keywords data protection, privacy, personal data, transparency, purpose limitation, further processing, block exemption, democracy
  • Engelberg, Matti (Helsingin yliopisto, 2019)
    The dissertation discusses the recent EU directive on preventive restructuring (‘Directive on Preventive Restructuring’, 2019/1023), its adoption in EU member states, and the English company law scheme of arrangement (‘Scheme of Arrangement’ or ’Scheme’), analysing the best preventive restructuring model for Finland and other Nordic countries. The principal method of the research is the regulation theory in law and economics; yet by using the comparative law method, optimal frameworks are outlined to develop, de lege ferenda, legislation for ensuring efficient legal protection against abuse of holdout positions relating to debt or equity instruments. The English law Scheme of Arrangement is a court approved compromise or arrangement between a company and its shareholders or creditors or any class of them, that operates in a solvent or a financially distressed situation. When viewed from a Nordic and continental European perspective, the English regime is a highly flexible company law tool that can be used, among other things, in a preventive restructuring to protect a company and a majority of its same class debt holders from hold-out minority dissenters. Its increased importance as a tool for preventive restructuring coincides with the diversification of financing sources over the past decade since the financial crisis. The economic impact of rescue and recovery frameworks in the EU has been analysed in the preparatory works of the Directive on Preventive Restructuring: an estimated 200 000 firms go bankrupt each year in the EU (this being 600 on a daily basis), resulting in 1.7 million direct job losses every year. According to the reasoning of the preparative works, a significant percentage of firms and related jobs could be saved, if preventive procedures existed in all Member States. Scheme of Arrangement framework is analysed in the research also from an insolvency law viewpoint. This is important, particularly as the new Directive on Preventive Restructuring derives from the insolvency law angle. Hence, the directive is setting standards for minimum harmonisation, and emphasises flexibility for the Member States to have several frameworks available. Further flexibility may be provided, inter alia through company law, as such a framework would be available for a company and its stakeholders, in case there is any need for a compromise or arrangement between the company and its shareholders or creditors or any class of them. The principal thesis of the dissertation is that the current Finnish and Nordic legislation does not provide adequate protection for a company and its key stakeholders against abuse of holdout positions by the minority of any same class finance instrument. Both the US and the English law provide such workout-tools, which would be useful for the Nordic jurisdictions as well. An availability of a workout-framework for restructuring has been outlined in a study of the European Law Institute as an important element in law. This would safeguard, that only creditors, whose rights would be altered, would be involved in the court process, and the company would otherwise be able to continue its’ operations without interference. The recent Finnish and Swedish legal writing on insolvency law has analysed debt to equity swaps, i.e. possibilities, in an insolvency scenario, to swap debt into equity, also against the will of the existing shareholders. Finnish Government has also conducted an international comparative study on debt-to-equity conversion as part of the Government’s analyses and research activities. Under English law, Schemes of Arrangement provide a useful tool for the debt-to-equity swaps in insolvency, but still protect the interests of all stakeholders amicably. Hence, Scheme of Arrangement framework could provide a solution to this practical problem with the current Nordic legislation. As a conclusion, the dissertation presents a figure illustrating in a hypothetical showing the matrix of the financial and economic condition of a company and the related needs for preventive and restructuring legal frameworks for a company and its stakeholders. Based on the theory of path dependency, the author concludes that the legislative changes presented in the dissertation would be justified, as the estimated benefits of the reform would supersede the costs involved. Therefore, the legislators should consider the presented reform to company law, noting that this would require a good understanding of the fundamental changes. By doing so, the Finnish and Nordic legislators should be well positioned to follow the principles of the Directive on Preventive Restructuring.
  • Saaripuu, Tuire (Helsingin yliopisto, 2019)
    In Finland, provisions concerning the identification of a person were laid down as recently as in 2009 when the Act on Strong Electronic Identification and Digital Signatures was enacted. Until then, the identification of a person had not been a recognised legal concept. Instead, it had served as one of the functionalities in various judicial transactions. The importance to identify a certain person has always been a relevant element for example in the law of obligation to ensure that responsible parties and their personal legal obligations in a legal act are recognised. In today’s world, it is important that the end users of electronic services can be identified and it is therefore essential that applicable legislation be put in place. The identification of a person is now defined in the context of strong electronic identification. In lex specialis, provisions are also given on requirements pertaining to electronic identification, digital signatures and other trust services. In many cases, the enacted standard level of strong identification is required. In electronic transactions based on identification, various judicial relationships can be recognised. Data protection and the protection of privacy are essential in and compulsory prerequisites of electronic transactions and they must be provided for in legislation. Service providers also keep registers of personal information and, according to European Union and Finnish legislation, they may be held liable in case any corrupt practices are discovered. This demand applies also to enacted strict liability. Parties’ legal positions are defined in the regulations and legal principles of contract law and tort liability law. A typical online transaction involves several parties operating simultaneously either in a contractual or some other legally binding relationship. Non-contractual relationships exist, too. In certain cases, compensation of financial loss is covered under the Tort Liability Act, in contractual relationships according to contractual liability. In electronic transactions, typical parties include the service provider issuing the identification and signature service, a customer using the service and a third party, in many cases a non-contractual party trusting the identity or signature the service provider. The third party, such as an end-user web service, is very often a party in a contractual relationship with the primary end user and special liability expectations have been enacted in the relationship towards the service provider. Liability questions vary and they can be recognised as strict liability, fault liability, contractual liability, or tort liability. In addition, administrative law plays an important role because public administration is responsible for issuing digital services. Identification and trust services are based on standardised and audited legal and technical requirements, which determine the status and obligations of the Trusted Third Party, digital trust services and the minimum level of cross-border identification on European level. The dissertation examines in detail legal issues concerning strong electronic identification and signatures and end-user services using these standardised methods. Most legal requirements are based on Regulation (EU) No 910/2014 of the European Parliament and the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC as well as on Finnish Act on Strong Electronic Identification and Trust Services (617/2009).
  • Salonen, Antti P. (Helsingin yliopisto, 2019)
    The emergence and rapid evolution of the over-the-counter (OTC) derivatives market in the early 1980s revolutionized the whole landscape of finance. OTC derivatives are financial products that are transnational in their nature. These products do not follow any jurisdictional lines nor theoretical boundaries focusing on state-made law. They transcend them. The central argument of this research is that legal scholarship requires a legal theoretical approach capable of recognizing private normativity and that accepts that it is not only nation states and organizations that derive their powers from states that can produce law. Transnational method allows the observer to acknowledge the transnational elements of finance and then set them into a legal theoretical structure. This research retells the evolution of the OTC derivatives market through the application of transnational method. Instead of building a narrative emphasizing the de- and reregulation policies and politics, the research focuses on early beginnings of the largest capital market in the world, the so-called eurobond market of the 1960s. Through legal innovation, this market developed its own transnational rules. In the 1980s, this market became integrated with the rapidly growing market for swaps, a type of OTC derivative. Seeing the demand for contractual standardization,a handful of financial institutions became organized through a trade organization today known as the International Swaps and Derivatives Association, Inc. (ISDA). The main product of ISDA, the ISDA Master Agreement architecture, had become by far the most used standard agreement in the OTC derivatives market already before the 1990s. Post financial crisis of 2008, this transnational contract still holds a central position in a very different regulatory environment than that of the 1980s. Transnational method identifies the supply and demand for financial and legal innovation, and the facilitative role that nation states and international organizations can play in enhancing private normativity and the transnationalisation of law. The results that transnational method tells are first and foremost descriptive. The application of transnational method requires a functional, rather than formal, understanding of ‘law’ because this allows private normativity to be recognized and its ontology properly understood.
  • Linnanmäki, Kirsikka (Alma Talent, 2019)
    My doctoral dissertation, titled The Best Interests of the Child in Child Custody Disputes in Court-connected Mediation, combines child law and mediation theories. I investigate how the best interests of the child and mediation are determined and how these two perspectives interact with each other, both in theory and in practice. In addition, needs for further development of the procedure are outlined. With child custody disputes, I refer to conflicts and disputes between the guardians (typically the parents) regarding their child, over custody, residence, right of access (contact, visitation) and child maintenance. Court-connected mediation in Finland is an in-court alternative process to court trial with one or more impartial, neutral mediator. In this interdisciplinary I have combined legal theory and doctrine, theories and methods from the social sciences and multidisciplinary mediation theories. First, I focused on the theories and principles of court-connected mediation through legal doctrine and mediation theories to outline the context for court-connected mediation. Secondly, I focused on the theories and principles of child law. The modern view of child law is based on the UN Convention on the rights of the child and its rights-based interpretations of the best interests of the child. In addition, national legislation is systemised and interpreted. Thirdly, I focused on the contents and definitions of custody disputes and court-connected mediation. In addition, I looked at access to justice. Fourthly, my research includes an empirical section with observations and interviews. No children were interviewed, since they did not participate in the mediations, which is customary in Finland. The data was analysed with content analysis. The main findings of the research are the following. First, the definitions of the best interests of the child are various and partly contradictory in the pluralistic legislation concerning court-connected mediation in custody disputes. Multiple interpretations of the best interests norm and principle are possible, but not all of them correspond to the modern child law perspective. Secondly, the court-connected mediation model in legislation is somewhat contradictory in child custody matters: the generally adopted dichotomy of facilitative and evaluative models seems to be insufficient to achieve a rights-based interpretation of the best interests of the child. Thirdly, I saw the best interests of the child as a multidisciplinary set of factors, including a child’s legal rights that need to be taken into account and evaluated individually on a case-by-case basis. The empirical data suggested that in practice the interpretations of mediation and of the best interests of the child were somewhat narrower compared to the theoretical options that are available. Consideration of the cross-effects of child law and mediation theory perspectives has thus unused potential. Court-connected mediation in child custody disputes in Finland could be improved both in theory and in practice by developing deeper understandings of child law and mediation theories as well as their interaction, by amendments to legislation and other regulations, by more training in mediation and child law, and by an altogether more systemic and reflexive approach. More attention could be paid to children’s human rights requirements and also to access to justice in its many dimensions in the context of mediation as an alternative process.
  • Makhija, Sonal (Helsingin yliopisto, 2019)
    Nothing Happens Everyday is an ethnographic study of the everyday in a lower court. The everyday in court was described by the women court users in my study as a spatio-temporal site where ‘nothing happens’. Thus, this is an ethnographic study of the ordinary and ‘unperceivable’ of everyday in a lower court in Northern Mumbai, India. Drawing on Maurice Blanchot’s work on the everyday, this nine-month ethnographic study of the everyday, of ‘empty-time’, of the discomfort, dreariness and boredom of sitting and waiting, follows the lives of women who encounter the Protection of Women from Domestic Violence Act, 2005, and examines how women perceive and ‘make sense’ of the law and everyday procedures. “Nothing happens in courtrooms. We only sit there all day,” was how women described their everyday encounter with the law, as everyday felt the same. The description of the everyday as unremarkable and as it is encountered in its quotidian moment is an analytical thread followed throughout this thesis, and I examine the perception of ‘nothing happens’ in light of the lived experience of the everyday through an embodied approach. The study argues that the examination of the routine and everyday experience of law sheds light on the disparity between what the law promises and what the law delivers, and what women seek from the law when they come before it. Thus, this study is a detailed exploration of what happens in the everyday in courts. What happens to those who come before it? How do women ‘reach’ the law, and why does the law remain out of reach? By focusing on everyday interactions and waiting, the project reveals law’s everyday inaccessibility, alienation, and the everyday possibilities.
  • Tuura, Heini (Helsingin yliopisto, 2019)
    This dissertation concerns armed intervention by invitation in international law. In its essence, intervention by invitation entails the use of force with the consent of the territorial State, which appears simple. However, the modern form of the concept is fraught with legal complexities, including its relationship with the United Nations Charter. The instrument, which should regulate the use of force and make it a collective matter, does not mention unilateral intervention by invitation, leaving its legal basis complicated. Still, this impasse has been bypassed, allowing the concept to exist despite its inherent contradictions. The thesis examines the position of intervention by invitation in international law governed by the Charter: why the doctrine continues to exist as an international legal concept and how it has fared since 1945. Accordingly, the dissertation has been divided into three research topics: (1) the exact legal basis of intervention by invitation and how it is related to other uses of force, (2) the concept in practice, and (3) its current and future prospects. The thesis deploys the New Haven School approach to international law, thus adopting a policy-oriented perspective. Upon examination, it is held that the concept is a result of decision-making processes which took place following the adoption of the Charter. These processes were pushed by the most powerful States, which endorsed invited interventions in the absence of collective security. Thus, the concept’s emergence is attributed to the failure to implement the scheme of the Charter wholly in the midst of the Cold War, which led to political developments that necessitated the return of invited interventions. Modern intervention by invitation hence exists due to changing circumstances and the State policies adopted in response, not the black letter of law itself. This is mirrored in the practice of the doctrine, which is erratic in many senses, and its current place in international law. Despite this antagonistic character quality, intervention by invitation has also played a stabilising role during the UN era, as it has quietly served the common values of the global community. This was particularly the case during the Cold War, when the concept — while deepening the polarisation of relations — prevented the political crisis from reaching the point of no return. The doctrine has thus served a dual purpose, attending to both sovereign and common interests. This ambivalence is relevant, because the definitions between unilateral and collective measures, as well as internal and international matters, are becoming hazier. Such developments inevitably have an impact on intervention by invitation and the values it serves. Of late, intervention by invitation has been invoked to promote global interests more expressly, which suggests that the concept is indeed transforming. However, this transformation may be hindered by the fact that unlike during the Cold War, when it kept the balance of terror in check, intervention by invitation currently has no wider purpose to serve. Finding such a purpose is of upmost importance, should the concept aspire to embody global and sovereign interests in a balanced manner.
  • Kolehmainen, Esa (Helsingin yliopisto, 2019)
    Every useful view to legal system is, at some extent, a perspective, which combines both hermeneutical and normative aspects of human mind. Indeed, in hermeneutics we do not just suffer lack of normative aspects in thinking while our “conceptual framework” is trained to identify and analyze conceptualized facts and phenomenas of the visual world. The problem is also, as it were, how to grasp a linguistic perspective to formation of value-judgments and normative speech in general. Last mentioned items are presupposed in hermeneutics. However, hermeneutical view and the question of language by which to gain position from which we would be able to use language as a tool also outside the scope of positive philosophy of science, are closely linked to each other. Normative aspect takes its steps towards the same problem – the problem of adequate language scheme – but from the different direction. Now we start, as it were in the kelsenian point of view, from the myth of norm and unsatisfactories are semantical by their very nature. We also would like to know how our antirealism works as a pragmatic craftmanship – used in hypothetical situations and guarded by our conceptual potentiality as a whole. Actuality of legal language is always a combination of these two perspectives. The language of legal system should be analogous to hermeneutical point of view to language in general. The semantical steps taken outside the scope of myth are to be adequate to needs of language-user who wishes – for example – to give commands, reason from juristic premises – or justify by means of language, that is: give the best possible argumentable solution to a given legal question. Thesis at hand is a feasibility study on larger investigation on “theory of elementary language” which could give us a better view on conceptuality especially on ethical issues concerning inner point of view and the use of language outside the immediate main field of the philosophy of ordinary language. Thesis interprets subject matter on two meanings. Firstly, how legal theory presupposes internal point of view (and how dworkinian “insider´s view” which I don´t consider distant general concept in comparison to hartian “internal point of view”) when we are dealing with different kinds of abstract problems in theory of law (chapters 2–4). Secondly, how far we can reach without mentioned point of view when making attempts to solve problems – or at least develop solutions to problems – emerging from particular normative cases or from the theory of law itself. Chapters 2–4 introduce the proper items of the work. If, at the same time, we understand them as arguments for the field of study of the internal language, our angle to legal theory is somewhat late wittgensteinian. Chapters are introducing perspectives to the problem of internal language needed both in naturalistic and noncognitive subjectivism. Chapter two deals with relativeness of the sources of law stating 24 different modes of sources. Chapter three interprets the conception of “institutional fact” from the idea of an implication (“ontic implies deontic”) which also have intimate connection to analogy. Chapter 4 interprets the problem of easy cases, that is, cases we consider intuitively and heuristically clear ones from the basis of our sources of law. Thesis claims that we have at least eight built-in ways on our reach to construe doubt in asking normative questions as a necessary conceptual condition for normative thinking.
  • Luukkonen, Marja (Helsingin yliopisto, 2018)
    The purpose of this doctoral thesis is to identify the kinds of duties that can be required of investors at different stages of the investment process. The study’s main research questions are as follows: What kinds of responsibilities and duties can be imposed on investors at different stages of the investment process de lege lata? How do these duties differ between investor profiles and investment products? What kind of responsibilities and duties should investors have de lege ferenda? The research method used in this thesis combines approaches from legal dogmatics and law and economics. The research consists of two parts: a general part and five articles. Regarding investors’ obligations de lege lata, the study demonstrates that investors have no obligation to provide information about themselves before making an investment. By contrast, the study shows that the investor’s due diligence duty is relatively extensive in principle. The investor must explore the material provided on the investment product with reasonable diligence, irrespective of the quantity of this material. However, the investor’s due diligence duty is affected by various factors, including an investor’s investment profile, other subjective features, and possibly other conditions related to the product or investor. On the other hand, our court and board practices show that the product provider’s obligation to provide information often overrides the investor’s due diligence duty. If the information is given, for example, orally, or in a short marketing brochure, this information takes precedence over material provided in other formats. Regarding an investor’s duty to know and understand, investors have no obligation to obtain knowledge on their own initiative prior to receiving information about the investment product from the product provider. However, the extent of the obligation to provide information to the investor depends on whether the investor is defined as a retail or professional client. Here, some guidelines can be drawn: as a starting point, regardless of their investment experience, investors should know that an investment always involves a risk. If investors have prior investment experience with a comparable investment product, they are presumed to know the risks and features of the product, regardless of whether the product provider has provided all the information on that product. Moreover, according to the notice rule, investors must inform the product provider in a timely fashion of a breach of contract from the moment they noticed or should have noticed that breach. If investors fail to comply with the notice rule, they usually lose the right to receive any remedy based on the breach of contract. Providing notice within a reasonable period of time is essential. The general part of the study concerns an investor’s duties and responsibilities de lege ferenda. Investors’ current duties are evaluated in the light of research from the field of behavioral economics and finance. According to the study, investors’ behavior is not always aligned with their responsibilities. Therefore, investors’ behavior should be taken into account in regulations and in the duties required of investors. Moreover, in view of the EU’s active investor protection regime, investors’ duty to provide notice of a breach of contract is harsh compared to their other duties. Consideration should be given to whether this obligation is necessary or whether a general period of limitation would suffice.
  • Lindqvist, Jenna-Sofia (Helsingin yliopisto, 2018)
    As the traditional Internet has developed into the The Internet of Things (‘IoT’), personal data protection law has also expanded from being a niche field of law, into a legal area that is applicable in almost all sectors, services, and technologies. Globalisation and the vast technological development, and elaborated collection of data, has raised questions about whether the current EU data protection legislation can cope with the new challenges that the modern technology poses. As a result, the EU Commission undertook to propose a new EU data protection legislation, to replace the Data Protection Directive (‘DPD’), and to better cope with modern data protection issues, the legislation which we now know as the General Data Protection Regulation (‘GDPR’), and which became applicable in 2018. This article-based doctoral dissertation sets out some of the key elements of the EU data protection reform package that has been processed for the past six years, and highlights some of the main changes in comparison to the situation governed by the outdated DPD. The main method is legal dogmatic with elements of both ‘legal-political’ and ‘problem-centred’ methods. The context of the research is the IoT and personal data challenges brought by it to data subjects, mainly by private stakeholders. As will be identified in this dissertation, the IoT poses challenges to personal data protection mainly because the amount of personal data that is collected has increased substantially, and because information is gathered from so many different, scattered sources. In addition, the form of automatic communication between smart devices makes it difficult to apply fundamental transparency and fairness principles. This dissertation investigates the complexity of the legal state in EU surrounding personal data protection in the context of the IoT. The articles forming the dissertation outline changes both in law, and the world at large, point out legal unclarities, and contribute to the academic discussion about the possible effects of the GDPR. In a nutshell, this study aims to answer the question: Is the GDPR fit to deal with new technologies such as the IoT?
  • James, Ricky (Helsingin yliopisto, 2018)
    This thesis advocates replacing the exclusive rights doctrine with the correlated rights doctrine in circumstances, where an integrated technological product requires the practice of several patents from multiple owners. The justification for application of the correlated rights doctrine is based upon the principles of equity and non-discrimination, which demand that every IP owner contributing innovations to a technological product is fully compensated for the value of their contribution. In the thesis the correlated rights doctrine is defined as: ‘When multiple parties have individual property claims on an inherently integrated property, each is legally entitled to their proportional share of the value of the property and the law should protect that share from being appropriated by others, including other owners and users.’ The need to replace the exclusive rights doctrine is demonstrated by the abuses of patent holdup and patent holdout, which can be regarded as manifestations of a mismatch between integrated innovation and the absolute foundations of IP law. As described in the thesis, both these abuses appropriate the rewards from nearly every integrated patent contributor and unjustly enrich only a few abusive entities. It is anticipated that an application of the correlated rights doctrine would effectively proscribe the practice of patent holdup, in addition to overturning the prevailing notion that integrated patent owners are entitled to only 20% of the value that their properties contribute to an integrated technological product. An application of the doctrine should also allow for the curtailment of patent holdout, which was initially a defensive measure tolerated by the courts to avoid the inequitable outcomes related to patent holdup. While the thesis advocates a doctrinal replacement, it does not advocate for changes in existing legislation. This is because an application of the correlated rights doctrine does not appear to breach existing legislation and may even be required under the of EU Law. Further although an application of the correlated rights doctrine may not be required under U.S law, its potential application is bolstered by the fact that it is an established U.S. legal doctrine which has been supported by the U.S. Supreme Court for over 100 years. Assuming that an application of the correlated intellectual property rights is adopted, it should facilitate a more equitable and efficient resolution of patent disputes, which will enhance innovative efforts by allowing all innovators to be fully rewarded for their contributions to advanced technological products.
  • Bu-Pasha, Shakila (Helsingin yliopisto, 2018)
    Using location-based services (LBSs) via location-aware applications (apps) and websites on devices including smartphones, tablets and laptops has become inevitable for most device users. Smartphones and smart devices are equipped with sophisticated positioning sensors that can determine the location and physical movements of their users. A variety of risks and threats have been associated with the location data privacy of individuals in this digital era. This dissertation addresses a common and significant legal problem: the relationship between collection of location data in mobile device usage and the European Union (EU) law on the protection of personal location data and privacy. Along with the traditional human rights law, the EU information and communications technology (ICT) as well as data protection law play a significant role in the privacy and personal data protection of mobile device users. Article 4(1) of the General Data Protection Regulation (GDPR) expressly includes location data as an “identifier” of personal data. This dissertation pictures the vulnerabilities of location and location data (which may potentially be sensitive data) in mobile devices and while using the Internet and particular apps on those devices. The theoretical framework for the dissertation includes the EU as a single society in the digital environment, as well as location privacy and cross-border issues under EU data protection law. The need for obtaining user consent and maintaining transparency and accountability on behalf of online platforms and other responsible bodies as data controllers and processors are also described. The main aspect related to localisation in mobile devices concerns data protection addressing protection of privacy online and personal data which includes location data. This aspect emphasises the efficiency of EU data protection legal system, more specifically with the introduction of the GDPR, which can effectively bind data controllers such as multinational technology companies, online platforms and other entities for safeguarding data subjects’ right to privacy and personal data protection and for the promotion of smooth and safe public participation on the Internet via mobile devices. At the same time, the dissertation covers international and EU Law aspects of the mitigation of harmful radio interference in Global Navigation Satellite System (GNSS) and radio communication system for the accuracy in location estimation and location services. On the ground of protection of privacy, the EU law does not permit using illegal devices like jamming and spoofing devices which hamper GNSS technology and services. By researching a comparatively new branch of law and a new topic, the dissertation contributes to the efficient protection of location data and privacy.
  • Wilkman, Nina (Helsingin yliopisto, 2018)
    This dissertation discusses contract interpretation based on a certain kind of contracting and contracts. It is submitted that sales and purchases of businesses (‘transactions’), regardless of whether transactions involve shares, assets or combinations of these, set a different framework for contract interpretation than many other contractual relationships. The transaction market is heavily influenced by how contracting and contracts are made in the United Kingdom and in the United States and contracts are often drafted in the English language. This has led to a situation where detailed written contracts are used in transactions, including in the Nordic countries, and the contracts typically include common law terminology and English expressions with a certain legal meaning under common law, even when the contracts are governed by Nordic law. These features can be seen in contracts involving domestic as well as cross-border transactions. The analyses of contract interpretation are based on the above mentioned cornerstones, namely the particularities of contracting and contracts in transactions and the use of common law terminology and English expressions in those contracts. Common law is discussed based on how it is perceived in the United Kingdom and the United States, only, and Nordic law is discussed based on the situation in Denmark, Finland, Norway and Sweden, so Iceland is not included. The main method used can be described as belonging to the field of legal dogmatics, which requires both interpretation and systematization. The dissertation includes analyses of contract law in the chosen common law and Nordic jurisdictions and the analyses focus on contract law relevant for transactions. The systematization requirement is met by analyzing the underlying legal concepts of typical terminology and expressions used in a special form of contracts, namely transaction contracts. Secondly, this dissertation also employs a method of a more comparative nature, as English and American terminology and concepts including use of the English language are scrutinized based on their common law meaning, but are thereafter compared with similar concepts that exist or may be construed according to Nordic law. The conclusions based on the research are several. With regard to how the particularities of transactions may affect contract interpretation, the conclusion is that a form of contextual, objective interpretation method is preferred in terms of these highly detailed written contracts. The contextual method is suggested to be employed particularly with regard to the written contract, while a more restrictive approach is taken to using pre-contractual statements and actions in the interpretation. It is concluded that the written contract is by far the most important interpretation source. When the parties have agreed upon a transaction in a written contract, that contract has been described as a result of a complex process ‒ a process during which several actions take place at the same time and where those actions including statements and drafts exchanged should be analyzed not only based on their contents, but also with due consideration for the fact that actions, statements and drafts are affected by the negotiation positions and strategies of the parties. The written contract is held to be even more important in cross-border transactions as here the contract establishes the parties’ mutual intention regardless of their possible different understandings of general contract law. An objective interpretation method is defended, although this does not give a sufficient answer as to how common law terminology and other expressions in English should be interpreted in relation to contracts governed by Nordic law. When the dissertation deals with common law terminology and other expressions, the conclusion is that it is possible and they should be interpreted based on Nordic law. The interpretation may require some extra effort in order to understand how terminology and expressions are in general used in transaction contracts, but an objective interpretation should be employed based on how the governing law understands those same terminology and expressions. When contract interpretation based on Nordic law does not provide a solution or when the parties have made a choice to use terminology or other expressions according to their common law meaning, it is submitted that Nordic courts including arbitrators should be allowed to have recourse to common law and common law practice. This acceptance is due to the fact that the whole transaction market is heavily influenced by the English and American ways of contracting and drafting contracts. However, this influence has not been regarded as so consciously employed that it would mean that the Nordic legal community has accepted the common law understanding of terminology and expressions when these are used in contracts governed by Nordic law. It is also concluded that when common law is used, it is imperative to acknowledge that English and American contract law are not identical. Therefore, whenever common law is referred to, the decision has to explain why English or American law is chosen and thereafter such choice has to be consistently implemented.

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