Faculty of Law

 

Recent Submissions

  • Hanninen, Minna (Helsingin yliopisto, 2020)
    In the last couple of decades there have been considerable advances in the field of biotechnology, and biochemistry and gene technology have become especially important in relation to their potential applications in alleviating human suffering by the way of, for example, curing previously incurable diseases. This makes the field very interesting from the viewpoint of gaining patent protection for inventions which could produce vast financial profit. Simultaneously, the significance and consideration of fundamental and human rights has increased. The patentability of human based material in relation to fundamental and human rights is a legal research the aims of which are to systematize the legal rules affecting the patentability of inventions concerning human based material in Finland as well as analyze whether there are fundamental and human rights norms that are seemingly (in a way that can be resolved by means of interpretation) or actually in conflict with them. Furthermore, the study addresses the question of what is meant by the concepts of human dignity and personal autonomy in connection with the patentability of inventions in which human based material is used and what is the legal status of persons that have donated their material which is used in the inventions. The perspective of the research is of Finnish law but in a European context, as Finland is a member state of the European Union as well as the Council of Europe. The research has been conducted using the doctrinal approach in order to, as mentioned above, give systematic exposition to the legal rules and principles governing the research topic. Although the patent system and fundamental and human rights have traditionally been treated as separate and unrelated, according to the author it seems clear that in today’s world they cannot be understood this way anymore. Instead, they overlap and intertwine in many ways, and should be viewed as one systematic unity. Patent law in general must be interpreted taking into consideration the principles protected by fundamental and human rights norms. Especially, when material of human origin is utilized in connection with an invention intended to be patented, the protection of the individual human being donating the material, including their human dignity and the rights and fundamental freedoms, should always be a priority. This may, in certain situations, result in limitations of the patentability of inventions utilizing material of human origin. The interrelation between patentability legislation concerning biotechnological inventions should be emphasized also in the practice of patent authorities. Fundamental and human rights should at least function as a standard against which the morality of the commercial exploitation of inventions need to be compared. At the moment there are still some issues to this regard to be resolved.
  • Glover, Edinam (Helsingin yliopisto, 2020)
    Many countries in sub-Saharan Africa have seen considerable concern about the depletion and loss of natural resources due to over exploitation and other socio-economic activities. This menace of resource degradation threatens the stability of the ecosystem, food security, national and international security, and the very survival of life of people in the region. The general aim of this research is to explore how the legal development during colonial times - with forests and forest activities becoming colonial property and under colonial authority, and with the exercise of police power - in many ways contradicted and broke up the traditional customary law in the Sudan. More specifically, the study describes the major elements in the development of forest law in the Sudan: Prior to the colonization, during the colonization by the British from late 18th century to independence in 1956, and elements of the development of the forest law after independence. It seeks to analyse the legal mechanisms for enforcement and implementation in the broader context of sustainable development in the Sudan: It examines the enforcement from the perspective of its relationship with environmental laws. It examines a wide range of laws and conventions that have an indirect impact on forest conservation and development. It attempts to answer the following questions: What are the legal enforcement mechanisms that help to enhance compliance with the rule of law and promote sustainable development? What are the obstacles that hinder the enforcement and implementation of these legal mechanisms? What was the forest policy and legislation in Sudan during the colonial era? What changes, if any, occurred or should have occurred? Looking into the future, what may be expected, and how could it be made better than today? This study complements qualitative content analysis (QCA) with mono-disciplinary legal research data. Qualitative content analysis largely involved the use of data derived from a range of primary sources of Environmental Law such as domestic and regional law, early 20th-century English colonial law and customary law as evidenced by national legislation, government statements and restatements. The data have been analysed by means of content analysis. Results indicate that legal mechanism that can help to enhance compliance with the rule of law may include public awareness and participation, conservation orders, environmental permitting and licensing system, and environmental impact assessment. It has been shown in this study that the received law forms an essential or basic element of forest legislation and development in the Sudan and as far as law does not fulfil people’s needs, they do not consider it as binding. In addition, the evidence seems to indicate that the colonial era laws have not been compatible with Sudanese pre-existing social norms and have not been well received and thus implemented. Findings demonstrate that in a bid to tackle land use issues, the government of the Sudan has created the necessary enabling environment by putting in place environmental policies and legislation as well as setting up a wide range of institutions that handle various aspects of resource management such as law enforcement, policy formulation, research, and creation of awareness. The evidence seems to be strong that the government has provided some level of legal recognition to customary and state land tenure. Despite the above efforts, environmental degradation in Sudan is still a major concern. The study suggests that efforts must be made to encourage an internal process of law development and to produce a self-sustaining demand for legal innovation and change. The conclusion from the study is that the most common explanation for non-compliance is inadequate monitoring and enforcement of law. Weakness in the rule of law has grave consequences in minimizing progress towards sustainable development. Keywords: Compliance, colonialism, enforcement, environmental changes, foreign law, legal mechanisms, natural resources, sub-Saharan Africa, the Sudan
  • Häkkinen, Esko (Helsingin yliopisto, 2020)
    This study concerns the relationship that the severity of punishment and the dominance of penal legislation in societal regulation have with the institutions of welfare state, political economy, and democratic politics. It consists of four independent research articles (three in English and one in Finnish) and an overview (Finnish). All articles are included as attachments. Article 1 (Finnish) introduces the neo-institutionalist explanatory penal theory. Contemporary research on penal policy widely accepts the connection between the strength of the welfare state and penal severity. It is understood that economic deregulation and welfare state retrenchment led to mass imprisonment and a culture of control from the 1970s onwards, especially in the United States. Comparative research shows that the punitive turn has had a less significant impact on countries with welfare states that have proven to be more durable, such as Finland. Differing political institutions may be an underlying independent predictor for determining both the strength of a welfare state and penal severity. Article 2 combines neo-institutionalist and neo-Durkheimian perspectives to construct a causal hypothesis concerning the effect of democratic corporatism and the welfare state on punishment in society. Corporatist unionization and organization increase market regulation and indirectly push a state to create social security. Society’s increased welfarist regulation decreases its emotional motivation to employ harsh punishment. Article 3 applies this hypothesis to the development of Finnish criminal justice before and after the Second World War. Pre-war Finnish criminal justice was exceptionally harsh. Corporatist interest representation was recognized in the 1940s, the labour market regulation increased, and by the 1960s, the central government had created a comprehensive system of social insurance. Welfare state development continued from the 1970s to 1980s. Overall, throughout this period, penal severity decreased. Article 4 is a longitudinal content analysis of crime control politics in the Finnish parliament from the 1970s to 2010s. An economic recession and geopolitical change shocked the preceding social order, causing the expansive phase of welfare state development to end and an ambivalent phase in criminal justice politics to begin.
  • Rankinen, Juho (Helsingin yliopisto, 2020)
    The study concentrates on negligence as a positive fault requirement in the Finnish criminal law. The hermeneutical aspiration of the study is to understand this concept and a form of legally relevant fault – i.e., to understand what is criminal negligence. This requires some kind of understanding what is criminal law, and law in general. Merely the aim to understand the law leads this study into enormous philosophical problems. According to this study, law is something far too complex, ambiguous and even mysterious to be grasped by this study, or the undersigned researcher. And so is also the Finnish criminal law, and eventually negligence. Consequently, the study is plunged into a pluralistic, eclectic and in many ways paradoxical cavalcade of perspectives and points of view. It cannot claim to possess some kind of absolute truth, neither concerning law, nor criminal law, nor negligence. Still, it hopes to advance our understanding concerning these issues. It has to resign itself to better understand negligence. The study is composed of five main sections. The first one frames the methodological and ethical theses for the research. The second one (PART I) examines the tradition of finnish criminal law and different kinds of manners in which criminal negligence has already been researched. The third one (PART II) sketches a basic model in which more specific criminal law doctrines concerning fault and responsibility may be placed, and how criminal negligence may be thought as a coherent whole. The fourth one (PART III) draws conclusions from the basis of this model, trying both to apply it to questions of negligence in practical legal reasoning, and also to justify this model. The final section turns (back) to the eternal questions about legal knowledge, interpretation and belief. This study both assumes and also tries to show and even demonstrate the aporetic nature of law and it’s openness to interpretations. It aims to do this tangibly, rambling around in the mass of various researches, interpretations and perspectives concerning criminal negligence. A couple of pages abstract is probably one of the best ways to misunderstand this kind of enterprise. So, one page as an abstract will do.
  • Mehling, Michael (Helsingin yliopisto, 2020)
    On all regulatory levels, climate policy is undergoing a process of rapid proliferation as well as a paradigmatic shift towards flexible instruments based on voluntary incentives, pricing control, and quantity rationing. While the resulting policy mix has yielded initial successes in various regions and jurisdictions, it has also proven increasingly prone to regulatory conflicts and a general trend towards fragmentation. Arguably, no attempt to face a challenge as pervasive as global climate change can avoid such difficulties entirely. Still, this thesis traces many of the identified shortcomings to a flawed, yet uncritically perpetuated canon of criteria for instrument choice in climate policy, and highlights both conceptual weaknesses and important historical decision processes where these criteria had little or no influence on the final political outcome. Rather than follow a utopian promise of rational and objective criteria, this book argues that stronger consideration of the law and jurisprudential methods can improve the final policy design by avoiding conflicts and tensions while incurring a greater level of legitimacy. It concludes with several recommendations for a coherent policy design at the international, regional and domestic level.
  • Tikka, Katja (Helsingin yliopisto, 2020)
    Shipping Legal Norms - Swedish Trading Companies in the Seventeenth century The doctoral dissertation examines the earliest Swedish Trading Companies and their administrative practices during the seventeenth century. The study focuses on two main company types: Copper Companies and Tar Companies, which represent two different and comparative entities. The objective is to understand the development of the trading companies in their political and legal context. The Copper Companies were Sweden’s first experiment of companies with limited liability, and they were based on foreign models (legal transplants). Furthermore, they characterize a new kind of global trade and monetary economy. The Tar Company, founded in 1648, arose from different kinds of needs. At that time Sweden was rising to become a great power in the Baltic Sea region in part because of its economic policies. The study’s methodological approach is based on analyzing the Swedish companies’ position in relation to the formation of organizations and institutions as a part of Swedish state formation. As government control was strict in a mercantilist society, trading companies were required to have privileges even though they were led by individual merchants. The Swedish Crown as well as local and foreign merchants were all looking out for their own interests in the companies. The study compares the Swedish companies with company models adopted elsewhere in Europe. Moreover, it also compares the privileges of Swedish Copper and Tar Companies with each other. Company privileges are linked to the social development of the Swedish state as well. The study reveals that the administrative and judicial environment in early seventeenth century Sweden was not yet prepared to adopt a Western European legal transplant permanently. Nevertheless, temporarily, Sweden was on the crest of a wave in adopting such legal innovations. The trading companies introduced significant reforms to Sweden, and shaped the model of the Collegium of Commerce, for instance. Later the foreign influence regarding the Tar Companies had nearly vanished from the 1640’s onwards, mainly because of the rulers’ attempt to achieve a more monarchical position. The research results correct the former view according to which the Tar Companies were closed down and then founded again only due to economic reasons. In fact, the privileges granted by the Crown were crucial in the development of the trading companies. Company privileges were always connected to the person of the ruler. Regency governments could not grant company privileges. In addition, I claim that foreign merchants offered their models to circumvent the strict Swedish alien policy. In the end, foreign models were also essential for Sweden to manage in the rapidly changing field of international commerce. The first Swedish trading companies were organizations aimed at controlling risks and minimizing the instability of the export trade. The study shows that legal change arose from practical needs such as the reactions of local traders. However, these legal transplants, being adopted into different legal circumstances, could not have continuity. Trading companies represent the first economic entities in Sweden, which had to be based on anonymous shares in order to succeed in the new global markets.
  • Koivukari, Kristiina (Helsingin yliopisto, 2020)
    This dissertation discusses the narrative of modern European criminal justice: does the narrative exist, what it tells about criminal justice, and what it ignores and effaces? To start with, the study seeks an answer to the question of why it is so difficult to combine EU law and criminal law so that the central characteristics of both could be embraced. From the perspective of criminal justice, the often suggested answer to the question is that the fundamental criminal law principles together with EU law and its principles could form an appropriate basis for the combination, but the EU seems reluctant to truly commit itself to criminal law principles and it seems the EU does not recognise the delicacy and integrity of criminal law. My hypothesis is instead that the central problem lies in the question itself, which presumes a certain kind of criminal law and EU law. Therefore, instead of straightforwardly trying to answer the question presuming and accepting the special nature of criminal justice and the EU’s reluctance to respect it, I critically analyse the elements assumed to be the essential parts of the concept of criminal justice forming the narrative of modern European criminal justice and the EU’s role and approach to criminal law. As discussions on these questions suggest that Enlightenment thinking constitutes the value basis for a common understanding of European criminal justice as well as EU criminal law principles, I also examine the narrative of the Enlightenment within criminal justice and the values and principles therein suggested to form the basis of criminal justice in both Europe and the EU. The different elements assumed to be the essential parts of criminal justice indeed prove to be ambiguous and blurred. Further, examining the reasons for the EU to legislate in criminal law matters, its competence and political limits indicate that it might not be (at least merely) a choice of the Union not to respect the criminal law principles but a consequence of its limited competence and political leeway as well as its interdependent position and way of functioning. In terms of values and principles, Enlightenment ideology does indeed seem to be the value basis for the narrative of modern European criminal justice. But the values, and their meaning and role as understood within criminal justice narrative, should be questioned instead of taken for granted, and indeed they are being questioned along with the narrative of modern European criminal justice itself. I argue that the Enlightenment values and principles as depicted by narrative on criminal justice presume a system structure, and the EU cannot form a system of its own. On the other hand, the EU inevitably deconstructs the systemic features of domestic criminal justice ‘systems’ by interfering with them in multiple ways and by eroding any possibilities of maintaining the narrative of the criminal justice system even in the domestic sphere. The EU (alone) does not cause this deconstruction of system structure(s), but intensifies it and makes the issue more evident and visible. While the concept or narrative of the modern criminal justice system is necessary to understand systemically, this systemic understanding is not realistic in the first place in the current undeniably inter-legal world of law. Hence the systemic narrative on modern European criminal justice crumbles and is challenged by multiple, more fragmented and interactional narratives on (criminal) law. This study is conducted by critical analyses of different dimensions of narratives. Narrativity works as a perspective and framework to emphasise that what I discuss in this study is what is told about criminal justice rather than what it is. In other words, narratitivty refers to my starting point of what kind of story we tell about criminal law, but it also refers to the possibility of other narratives as well. In turn, I use systemic and interactional approaches as lenses through which I explain the narrative told of modern European criminal justice (resembling more a systemic legal order) and the alternative narrative(s) which from my point of view would be more realistic in the inter-legal world (legal orders understood interactionally to some extent). Further, I claim that the narratives we tell affect the way law is used in practice, and in that sense is in no way innocent or irrelevant. I apply these theories or perspectives to each chapter and concept of the study separately, but the different parts of the study read as a whole expose the narrative of systemically understood criminal justice as on the one hand existing and on the other hand crumbling. This further questions the current construction of legitimacy as a residual justification of morally and philosophically unjustifiable punishment built on the systemic understanding of criminal justice. As that alleged legitimacy crumbles along with the narrative of criminal justice, it exposes the unjustifiability of punishment. The question then is whether it is possible to combine criminal law fluently with any other legal area, or whether it is even possible for it to be a part of legal or judicial systems at all.
  • 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.
  • Scherleitner, Moritz (2019)
    In many different circumstances, hybrid financial instruments (HFIs) can be an appealing source of finance. At the same time, however, such instruments may also be used in tax planning. Its differential treatment in the affected jurisdictions can give rise to double non-taxation of a payment. Exploiting this allows for significant reductions in the corporate tax liability. In the aftermath of the recent financial crisis, such “tax arbitrage” has increasingly entered debate within the G20, OECD, EU and UN. As a result various concepts of how to engage with the problem were developed. Besides these, some states already rely on provisions that can be of relevance in this context. Starting from these developments, the objective of the monograph is to help those in charge of solving the problem to make a more educated decision. As such, it addresses tax policymakers around the world. For the sake of reaching its goals, the thesis applies a socio-legal method. This should acknowledge that tax policymakers design rules in a context that is broader than existing tax law. They have to consider the traditional principles of tax policy, including tax competition constraints, as well as legal dogmatic restrictions – and does this thesis. Against this background, the dissertation is structured in the following way: In chapter 1, the reader is introduced into the topic and the design of the research. In chapter 2, HFIs are shed light on from the perspective of tax law, corporate finance and economics. The goal is to understand their role in reality. In chapter 3, the guiding principles for company taxation are reviewed. Contemporary tax research relies on the triumvirate: (i) equity, (ii) efficiency and (iii) administrability. So does this thesis. The literature on these issues is considered in sufficient depth, but with a strong focus on the research objectives. Chapter 4 builds the bridge between the above preparatory part and the core research. This happens by working out the non-legal concerns attached to tax arbitrage with HFIs. They include three from an inter-taxpayer equity perspective, three from an inter-nation equity perspective and two from an efficiency perspective. This is the problem definition. Chapters 5¬8 investigate how four approaches address these concerns. These are the “OECD approach”, the “low tax approach”, the “UN approach” and the “recharacterisation approach”. The focus will be on tax arbitrage transactions with HFIs that rely on a qualification conflict and substitute transactions with financial instruments that reach the same, or a similar, result. The research on these approaches also takes into account their administrability and legal dogmatic considerations. In doing so, the collateral damage caused by the rules is assessed as well. Also this happens from a multi-disciplinary perspective. In chapter 9, the author presents his own thoughts on what developed and developing countries may want to consider in dealing with the problem of tax arbitrage with HFIs. The author is aware of tax arbitrage with HFIs only being a part of the challenges tax policymakers have to deal with. In an attempt to consider this, the discussion is put into a broader context. As a direct consequence thereof, the thesis also lacks a clear solution. Rather, it aims to provide information that should improve tax policymakers´ ability to address the issue. It is left up to them to trade-off equity, efficiency and administrability considerations, paying attention to what is possible de lege lata.
  • 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.

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