Oikeustieteellinen tiedekunta

 

Recent Submissions

  • 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.
  • Noparast, Zahra (Helsingin yliopisto, 2019)
    The UN peacekeeping missions have constituted a substantial part of international attempts for maintaining and restoring international peace and security. The missions have been deployed in almost every part of the world to control conflict situations and keep the adversaries apart. In some cases the operations held all the hallmarks of an enforcement action and did not observe the three pillars of the UN peacekeeping action. The deployment of forces in "peace enforcement", dominantly after the Cold War with questionable legal basis led to unfortunate outcomes. Furthermore, non-stop reports of alleged crimes committed by military, and civil peacekeeping personnel tarnished the image of the organization as a peace-broker. It seems that the organization is unable to solve the problems attached to the deployment and conduct of the operations. Having said that one has to acknowledge that during last seven decades the organization has set up many panels, committees, commissions which led to the publication of lengthy reports with different titles for overcoming those problems, but the recommendations fell on deaf ears, and the member states did not comply with them, because it was not legally binding. The best example was the Zied report, which was published after the widespread alleged atrocities of the peace personnel in Congo in the early 1990s. Since these political attempts did not yield any tangible results, the legal approach to remove the problems so as to have successful missions seems inevitable. According to paragraph 1(a) of article 13 of the UN Charter, The General Assembly is entrusted to encourage "…the progressive development of international law and its codification…" The organization has been successful in this field and sponsored the adoption of many legal instruments such as the four Geneva Conventions of 1949. Moreover, the UN General Assembly established a permanent subsidiary organ, namely; the International Law Commission to enhance the process of law-making, but all the attempts have been for bringing law and order only among member states. The organization itself is not a party to those legal instruments, and this situation caused many difficulties for the international community, specifically as far as legal successful conduct and command of UN peace operations are concerned. Since the UN peace operations under any title are the only mechanism at the service of the international community, revisiting the causes of the failure of the missions in number of cases is indispensable. Therefore, this dissertation presents a thorough research of the organization's record of observing international law in terms of establishing, conducting, commanding and financing the peace missions. The main question of this research is how to make the UN peacekeeping operation more successful while the rules of international law could be observed in every step of establishing a mission. In this research the connection between the major problems that the organization has experienced and the absence of UN conventional obligation is scrutinized to the point of conclusion that each problem could be overcome if the international community adopts a comprehensive legal convention on peacekeeping. To the author of this thesis, the suggested convention would comprise existing legal instruments such as the four Geneva Conventions, and adaptation of them to the status of the UN as an international organization. However, new codifications are necessary where there are no legal international instruments for removing the ever-lasting problems of deploying a peace operation. The main areas which require new codification are as follows: giving the peace enforcement action a proper legal basis; determining the effective command and control of forces by the organization, or establishing dual responsibility of force-contributing states; establishing an effective, and authentic accountability mechanism for the prosecution of the alleged criminal acts of peace personnel by either national states, or an international tribunal; setting up a proper mechanism for monitoring justifiable financial contribution of all member states to the cause in a way that no state, large or small could withhold their assessed share of contribution; and finally observing well-functioning of the Secretariat which has played a defining role in the outcome of every peace operation. The proposal in this dissertation may be materialized if some countries take the initiative and put it on the Agenda of the General Assembly for discussion. Let's hope there will be enough volunteers who consider the lawful and orderly manner of deploying peacekeeping missions as an urgent and vital step for having a peaceful world which would be beneficial for all member states. .
  • 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.
  • Hietanen-Kunwald, Petra (Helsingin yliopisto, 2018)
    It is common to perceive mediation as a social practice, a practice that takes place outside the law and is unrestricted by legal rules. The subject of my dissertation is the normative dimension of mediation. I seek to sketch the relationship between mediation and the legal system, to discern, interpret and systematize the legal rules and principles within the framework of the European Mediation Directive 2008/52/EC and to develop them further. I consider mediation to be a decision-making mechanism that is in many respects functionally equivalent to litigation, a view that is based on systems theory. As mediation is one pillar of access to justice within European dispute resolution, I place my research in the field of European civil procedural law – without disregarding its connection to other areas of law, such as contract law. In my research I adopted the view that mediation has a double existence, namely a social existence and a legal existence. Mediation is connected to the legal systems by a network of contracts which constitute an instrument of structural coupling between different operationally closed (but cognitively open) systems – a view that has its roots in systems theory. I used these contracts and contract theory as a research method to examine how mediation is reproduced within the legal system. My systemic approach allows for account to be taken of fundamental principles and concepts developed within mediation theory, hence conflict resolution in the social system, while examining how these principles have been reproduced within the legal system. In this respect, my approach is multi-disciplinary. I concluded that several legal principles have emerged in the legal practice of mediation that determine the aim of mediation, the role of the participants, the procedure and the decision-making. Impartiality as the guiding principle of mediation, together with the requirement that the parties are equally involved in the process are not only values that arise in procedural justice research, but they also depict a principle of fairness that constitutes the minimum requirement of due process in Civil and Commercial Mediation. On the basis of the principles that started to emerge in the legal practice of mediation, I propose a set of procedural principles that can be used to consolidate and restate the general principles of Civil and Commercial Mediation.
  • Ukkola, Markus (Helsingin yliopisto, 2018)
    The aim of the dissertation is to assess whether the jurisprudence of the Court has met the standards which secure the coherence and legal certainty and ultimately the acceptability of its rulings. The aim of the study is also to show how, by using systemic arguments, the Court could help to systematize this particular field of EU law and to improve legal certainty. In the study, legal reasoning and interpretation are assessed in the context of the European Court of Justice and the EU public procurement legislation. Using the terminology of MacCormick and Siltala, the approach utilized in the study is based on the Three C’s in Legal Reasoning: from linguistic consistency to the pursuit of principled, analogy-aligned coherence among legal principles and, ultimately, to the value-laden social consequences of law. Going through the academic work on the legal reasoning of the ECJ, it is suggested that there may not be a need for additional directives of preference, affecting the use of different legal arguments. It is also suggested that that numerous approaches to the legal reasoning of the ECJ support the sequential directive of interpretation. Especially in the context of EU public procurement legislation, which is a complex field of procedural legislation with risks of getting mixed with other EU legislation concerning the relationship between public authorities and the market, it is suggested that the essential elements of consistency, coherence and the formal side of legal certainty are hampered if there is an excessive emphasis on teleological or consequential arguments. The case law of the ECJ in cases concerning the scope of application of public procurement legislation and the requirement to tender out public contracts is evaluated through the normative viewpoint of sequential use of arguments It is shown how the consistency and coherence of the Court’s reasoning and justification is improved through focusing on the concept of a public contract and its elements such as consideration. Same positive effects are drawn from the conceptual analysis of cooperation between contracting authorities. On the other hand, it is argued that the excessive use of teleological and consequential arguments has had negative effects on the coherence of both the normative field of EU public procurement legislation and the reasoning itself. The excessive use of teleological or consequential arguments has led to the expansion of tendering requirements concerning concession contracts, the use of the procurement legislation to achieving objectives of EU competition law, the introduction of new objectives such as administrative efficiency, indeterminacy regarding the relationship and the division of tasks between free movement rules of the Treaty and the procurement directives, and the general uncertainty as to what types of arrangements of public authorities are covered by tendering rules. Through systemic reasoning it is argued that better cooperation with these institutional actors could have been achieved. In addition, the use of systemic arguments has been and could have been even more efficiently used as an essential tool in preventing the useless duplication of reasons and mixing together pieces of legislation which may be loosely connected in terms of their objectives but not in terms of their tasks.
  • Heasman, Lia (Helsingin yliopisto, 2018)
    Striving for profitable business is not against the foundations of human rights, because profitability itself is a morally neutral goal. Most multinational or national companies never violate human rights, but out of the hundreds of thousands multinational corporations and their subsidiaries some of them might and most likely some will. The relation between corporations and human rights was not initially seen to be direct or even indirect, but in the age of globalisation the real impacts corporate action can have on human rights is evident. Multinational corporations can find themselves in a loophole of jurisdictions for companies to operate in, and accountability is not generated from international law either. Judicially, multinational corporations act under the obligation to conduct their operations in accordance with the domestic laws of each jurisdiction. Complexities emerge when transnational corporations operate in host states which are unwilling or unable to enforce human rights and fundamental rights. As corporations are not understood as subjects in international law, they cannot be bound by international regulation such as that on human rights. This dissertation seeks to comprehensively survey the evolution of mandatory human rights protection and promotion by corporations. In particular, the research concentrates on the forms and models of regulation and its validity, enforcement and overall acceptance. The hypothesis is to find whether mandatory regulation, which regulates the direct human rights obligations of multinational corporations, exists, and more importantly, if it does not, can such binding regulation evolve? More specifically, if such regulation is evolving, then how will it evolve and what specific obligations can it impose? The study is divided into three parts. The first part discusses the various theoretical problems surrounding mandatory business and human rights regulation. The second portion of the study will provide an extensive depiction of the current regulative sphere. This entails not only the international and domestic regulative sphere, but two case studies regarding business and human rights. The first case study focuses on conflict minerals and the second case study focuses on the effects of civil remedies. In the third part, the first and second part were reviewed to answer the overall hypothesis and ask whether companies actually are capable of having human rights obligations. The research concludes that the role of states continues to be at the centre of human rights protection and enforcement, not only vertically between state and individual, but also in horizontal relations. The research argues that international human rights and domestic regulative measures include an expectation of human rights due diligence towards companies and hence such an obligation may already exist as a responsibility. Further, the research addresses the implications for the future of business and human rights in relation to the evolution of binding human rights obligations regarding corporate conduct. The text illustrates how similar concepts and ideas of due diligence have spread between states through models of regulative cooperation, competition and transnational communication. By using the same theory of policy convergence, the research will discuss how regulation regarding mandatory due diligence requirements may spread from one country to another and slowly grow more regional and further on global.
  • Peterzens-Nysten, Anri (Helsingin yliopisto, 2018)
    This research studies the legal protection of cultural property. It examines why cultural property needs protection and how it is protected by law. The research focuses on two issues. Firstly it looks into the way the movement of cultural property is regulated. Secondly it looks into the means that are used to secure the return of illegal cultural property to its country of origin. The theoretical part of the work examines where the presumed new branch of law called cultural heritage law, sits in the overall legal system. In recent years new regulation has been introduced to protect cultural property, as it has become apparent that pre-existing laws provided inadequate protection. The study suggests that the new laws that have been introduced to safeguard cultural property have been directed towards very specific legal problems relating to cultural property. The new law has created several independent legislative sub-areas under the branch of cultural heritage law. This work examines one of these legislative sub-areas in detail: the area that governs the movement and return of cultural property. The starting point for this research is that it is not possible to systematize these different legislative sub-areas with any existing legal concepts and principles. This is because, in addition to its normative material, each of the new legislative sub-areas also appears to be based upon distinct concepts and principles. In other words, each of these sub-areas has distinct legal identity in terms of legal norms, concepts and principles. In summary, careful analysis of the recently developed branch of law known as cultural heritage law reveals distinct sub-branches of law, each subject to its own general doctrines. The theoretical goal of this study has been to outline the general doctrines governing the legislative sub-area of movement and return of cultural property. The practical part of the work examines the question of the return of cultural property. First it looks at how the movement and the return of cultural property is regulated by law. Then it looks at the implementation of that law in practice, that is, the functionality of the recovery system. It is clear that both the regulation and its implementation are developing in a twofold way. The regulation is divided into hard and soft law, and soft law has quickly established its position alongside hard law. The implementation is likewise divided into hard and soft implementation. The unusual prominence of soft regulation and soft implementation may be considered a special feature of this sub-area of law.
  • Hanninen, Aleksei (Helsingin yliopisto, 2018)
    Business restructuring generally means the cross-border restructuring of multinational enterprises’ risks, functions and/or assets. This research deals with the transfer pricing treatment of business restructurings from the perspective of Russian, Finnish and U.S. tax law. The guiding principle of transfer pricing — the arm’s length principle — requires that the pricing of a related party transaction must ultimately conform to prices used between independent parties in similar transactions under similar circumstances. The main topic of this study is further divided into two primary research questions. First, this study examines to what extent business restructurings may become objects of transfer pricing under the national transfer pricing regulations in Russia, Finland and the USA. The second research question is how the arm’s length transfer prices should be determined for transfers of such assets/something of value that are deemed to be in the scope of the national transfer pricing rules. Further analysis is presented regarding whether the national transfer pricing regulations follow the arm’s length principle efficiently, and whether the OECD Transfer Pricing Guidelines could currently be used as an international standard in transfer pricing of business restructurings. This study aims to clarify the position of business restructurings as a legal phenomenon in the set of legal norms regulating transfer pricing. This research approach is known as a legal dogmatic approach. As the research objective is to examine the current legal state concerning transfer pricing of business restructurings in Russia, Finland and the USA, the results derived from the aforementioned jurisdictions are compared with each other. Thus, the second research method in this study is the comparative method. This research reveals that, especially in Russia, business restructurings may not fall efficiently within the scope of application of the transfer pricing rules, resulting in that the arm’s length principle is not fully followed. Although the current legal situation in Finland and the USA is more consistent with the arm’s length principle, certain partial issues remain ambiguous. In particular, the broad concept of intangible property used in Finnish (OECD-based) and U.S. transfer pricing rules is not entirely clear and straightforward, which may result in uncertainty of the transfer pricing treatment in business restructurings. Furthermore, the determination of arm’s length compensations for transfers of something of value in business restructurings may be challenging. Traditional transfer pricing methods may poorly be applied to transfers of intangibles and a going concern, and it is unclear how other valuation techniques should be applied in the transfer pricing context. The best solution to address the uncertainties that relate to the transfer pricing of business restructurings is the conclusion of multilateral or bilateral advance pricing agreements (APAs) with tax authorities. In addition to APAs, the compliance with the general transfer pricing documentation and reporting requirements as well as taxpayers’ self-initiated transfer pricing adjustments may lead to potential transfer pricing disputes with tax authorities being avoided. Lastly, apart from analyzing whether related parties have complied with the arm’s length principle during business restructurings, the anti-avoidance rules prohibiting unjustified tax benefits must be borne in mind in the decision-making regarding business restructurings.
  • Amorosa, Paolo (Helsingin yliopisto, 2018)
    In the interwar years, international lawyer James Brown Scott wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law rested not, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenth-century Spanish theologian Francisco de Vitoria. Far from being an antiquarian assertion, the Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and developments in international organization such as the creation of the League of Nations. At the same time, Scott associated the authority of Vitoria with projects he invested with personal meaning but were controversial within the US foreign policy establishment he belonged to. Scott claimed the authority of Vitoria in order to obtain the blessing of international adjudication by the Catholic Church and the recognition of equal rights for women by treaty. The dissertation describes the Spanish origin project in context, relying on Scott’s biography, changes in the self-understanding of the international legal profession, as well as on larger social and political trends in US and global history. Keeping in mind Vitoria’s persisting role as a key figure in the canon of international legal history, the dissertation sheds light on the contingency of shared assumptions about the discipline and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalization and de-politicization of rights language and of key concepts like equality and rule of law.
  • Zhao, Yajie (Helsingin yliopisto, 2018)
    This thesis explores the evolution of Chinese IP mechanisms during national development and transition to becoming a well-developed country. This subject is studied from the perspective of intellectual property (IP), with a special focus on the People’s Republic of China since 1949. Internationally, the Chinese State, as a late-developing country, has adopted various mechanisms to narrow its gap in income and in technological capability in relation to developed countries. Meanwhile, internally, China itself is going through a crucial stage of social transition, and switching its economic model from labour-intensive mode to high-tech and innovation-intensive mode. During China’s international ‘catch-up’ process, and its own social transition, the role of IP has constantly changed. This research on China’s IP covers a period of the late Qing Dynasty until early June 2017, especially focusing on the period after 1949 and the modern Chinese IP system since its Reform and Opening-up Policy in 1979. The reviewed literature covers: (1) Chinese IP-related legislation and policies; (2) the domestic and international academic IP studies; (3) research reports from international organizations; (4) central reports from the Central Committee of the Communist Party of China, other reports and speeches from the central government with a historical period start from 1933; and (5) IP-related annual reports and statistics from the State Intellectual Property Office and the various levels of the people’s court. This thesis combines the narrative approach of Chinese IP studies, law in context, and historical perspective, and specifically studies the question: ‘what is the IP system’s role in the catch-up process of China?’ The main research question is divided into sub questions: How does the development of the IP system and the national Science and Technology (S&T) integrate with each other (Chapter 2)? How is the IP system absorbed into Chinese society? The absorption of an IP system is explored via two aspects: one imperative aspect is the evolution of IP system from the perspective of enforcement (Chapter 3); and the other is how the IP system from the state level involved has impacted on the Chinese business players (Chapter 4). The manuscript concludes: Even though external pressures played an undeniable role during Chinese IP development, which can chase back to the 19th Century, China has been constantly advancing its IP system and its implementation mainly because of its internal and developmental needs since 1949 (Chapter 5). The outcome of this thesis summarises the three decades of Chinese modern IP development and its enforcement in the following way: an advanced legislation system that goes along with the international standards, an enforcement system with Chinese characteristics, and an administrative system for registration and examination focusing mainly on the domestic industries yet taking international practices as reference. China’s adjustments of the IP policies are ultimately determined by the overall objectives for catching up and building an innovative country. China updates its IP system strictly in line with its level of national S&T development. Based on the internal and international conditions, it is a selected development model from China’s side to emphasize IP reform and modernization.

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