Faculty of Law

 

Recent Submissions

  • Wahlbeck, Annina (Suomalainen Lakimiesyhdistys, 2022)
    Enforcement appeal constitutes a special type of legal protection in the Finnish legal system and this type does not have an equivalent in the civil procedure or in the appeal procedure. This specificity of the enforcement appeal has given reason for conducting research on the general theoretical foundation of the enforcement appeal procedure, more precisely enforcement proceedings as subject of appeal and enforcement appeal as remedy, in addition to two barriers to consideration of appeal, namely res judicata of a prior judgment and the effect of final remittance. Res judicata means that a case in which there has been a final judgment that has become legally valid cannot be raised again in court. The effect of remittance in enforcement proceedings means that enforcement appeal cannot be accepted for consideration in court after the final remittance of the funds that have been collected in the enforcement proceedings (Chapter 11, Section 1, Paragraph 2 of the Enforcement Code). Res judicata is a general civil procedure construct. This research investigates whether the civil procedure construct of res judicata is applicable to the enforcement appeal system. As for the remittance effect, it is a construct in enforcement law, and in this regard the question to be answered by the research is whether the remittance effect in enforcement proceedings meets the requirement of access to court which is included in the right to a fair trial. The research is legal-dogmatic. A theoretical method has been applied in the systematisation of the foundations of the enforcement appeal procedure. A practical method has been applied in the interpretation of the prerequisites of the consideration of appeal. The specificities of the enforcement appeal procedure stem from the enforcement features of the first instance. The enforcement proceeding is carried out after the court proceeding and it can be regarded as a separate proceeding where the enforcement authority applies the law, although the authority is not a court. The enforcement proceeding is carried out in phases and the measures that have been taken in each phase can be appealed to court. The appeal targets the enforcement that is carried out simultaneously, unless the court issues a separate order of a stay of enforcement. This enforcement appeal procedure is different from other legal procedures, such as the general procedure in civil cases and appeal. The findings of the research show that the negative (preclusive) effect of res judicata in civil procedure is out of the question as regards enforcement appeal. Nevertheless, the positive (conclusive) effect of res judicata is possible according to the findings of the research. The enforcement remittance system can be regarded as meeting the requirement of access to court as stated in Section 21 of the Constitution of Finland and Article 6 of the European Convention on Human Rights, considering that the remittance system recognises the possibility of stay of enforcement. However, the system is not flawless; it works only if the regulation on stay of enforcement is applied in practice. The research shows that the system has particular significance in interpretation (systemic rational interpretation). The inapplicability of the negative res judicata effect to enforcement appeal follows from the specifics of the first instance enforcement system and the enforcement appeal system. The enforcement remittance system meets the requirement of access to court, which is included in the right to a fair trial, in civil procedure only when the remittance system and the system for stay of enforcement are taken into account as a whole. The research will hopefully increase the understanding of the relevance of the system as well as the specificity of enforcement appeal.
  • Meri, Otto (Alma Talent Oy, 2023)
    The study examines illegal and immoral contracts and the legal effects of same. The legal order imposes a multitude of restrictions on the freedom of contract, which is afforded relevance by means of the protection of property embedded in Section 15 of the Constitution of Finland. One of the most salient prerequisites for the binding nature of a contract is its non-contravention of the law or good morals. The study systematises the prohibitory provisions pertaining to legal acts. The method of legal dogmatics is employed to explore the criteria for identifying, whether a legal act contravenes the law or good morals, and a position is taken concerning the types of factors that should be considered in the interpretation of whether a legal act contravenes any given prohibition. The study entails an extensive review of the Finnish case law and legal literature involving legal acts contravening the law and good morals. The study also entails an extensive perusal of the case law of the supreme courts of other Nordic countries, as well as the opinions presented in the legal literature of same. The aspects that are evaluated in relation to legal acts contravening the law and good morals include the manner in which fundamental rights and the interpretational practice of the Constitutional Law Committee impact the determination of legal acts contravening the law and good morals. Particular emphasis is placed on assessing the relationship between the protection of property under Section 15 of the Constitution of Finland and the legal protection afforded under Section 21 thereof, and the generic prohibition against acts contravening good morals. The study suggests that fundamental rights may have an expansionary impact on the freedom of contract. The interpretation of an act contravening common good morals should especially consider the individual’s right to self-determination and the right inherent therein to undertake a variety of binding legal acts. It has been considered that the customary legal consequence of legal acts contravening the law and good morals is invalidity. The premise that has been adopted is that contracts contravening the law or good morals cannot be directed to be carried out, and claims based on same are also otherwise not afforded protection of legitimate expectations. Legal acts contravening the law and good morals have been subject to the so-called principle of unenforceability, which entails that a receivable based on such legal acts cannot be collected through judicial means, and payments transmitted based on such legal acts cannot be recovered, even in cases where the other party has defaulted on their contractual obligation. The study highlights that the stance adopted in legal literature towards legal acts contravening the law and good morals has been inconsistent. When determining the legal effects of contracts contravening the law and good morals, the rulings issued have been somewhat diverse. Particularly the assessment of the relationship of the non-interference principle to the obligation to reimburse payments and restitution ensuing from invalidity has varied across rulings. The study assesses the relationship between the non-interference principle and the fundamental underlying principles of the legal order and the law of obligations. One of these is the prohibition against unilateral gains and the restitution related to same. The non-interference principle is evaluated in relation to the prohibition against financial gain well-established within the sphere of criminal law and the restrictions pertaining to criminal sanctions imposed by the Constitutional Law Committee. The study suggests that in assessing whether a legal act is in contravention of the law and the ensuing invalidity, attention should be paid to the purpose of the prohibitory provision, the efficacy of the prohibition, third-party protection and good faith protection. It is, furthermore, suggested that through waiving the application of the noninterference principle, it is feasible to attain more equitable resolutions from the perspective of the legal order as a whole, in individual cases. Reconciling the requirement of compliance with the law and good morals, based on public interest and the objective perception of morality, and the non-interference principle with the legal order comprised of the legal norms in force, is a difficult task.
  • Ahlfors, Julia (Alma Talent, 2022)
    The dissertation examines the content of the right to terminate a commercial contract. Termination for convenience is a regular way to end a contract for an indefinite duration according to Finnish contract law. It does not require any special or specific reasons, unless otherwise agreed. A reasonable notice period shall apply unless the notice period is agreed by the parties or regulated in legislation. The purpose of the research is to provide interpretative recommendations for the termination of commercial contracts and to structure and systematise the general doctrines of the termination rules using a legal dogmatic method. The main research question of the study is: What kinds of legal rules apply to termination of commercial contracts under Finnish contract law? The research examines in depth when a commercial contract can be terminated, how the right to terminate can be limited by a contract, the legal effects of termination and what kinds of factors may affect the determination of the notice period. The study also assesses interpretation and reasonableness of the terms of contract duration, as well as operational obligations related to termination. As is typical for legal dogmatic research, the results of the dissertation are in many respects interpretations on precise legal questions. However, a few observations on a more general level can be presented on the research topic as follows. The study concluded that there should not be particularly high legal barriers or restrictions for exercising the right to terminate. There are various acceptable commercial interests in favour of allowing broad freedom of termination; for instance, termination enables changing an unsatisfactory contracting party and reacting to changes in a business environment. In principle, protection related to termination should be implemented by determining a sufficient notice period or fixed-term period. According to the study, parties of commercial contracts should be free to enter into even exceptionally long-term obligations. The study indicated that even without an explicit clause, the parties must take into account the commercial risk of termination of the contract in their business. Because commercial contracts involve a financial risk of termination, the parties must, to manage this risk, determine the terms of duration in accordance with their commercial needs and be prepared for changes in circumstances during the contract term. Although the parties bear the risks associated with their own business and performance throughout the contract term, changes in circumstances may, under certain conditions, constitute an exceptional ground for termination under Section 36 of the Finnish Contracts Act.
  • Mäenpää, Kalle (Alma Talent Oy, 2022)
    This study investigates the legal effects of contract negotiations under Finnish law. As a rule, contract negotiations are not binding. There is always a risk that negotiations are terminated before a binding contract has been concluded. Negotiating parties can incur considerable costs and losses during the negotiations. For example, it may be necessary to start preparing the contractual relationship even before the conclusion of the contract. However, if the negotiations are terminated before the conclusion of the contract, these efforts go to waste. Negotiations may also be terminated due to the reprehensible conduct of one of the negotiating parties. A party can also enter the negotiations with no real intention of reaching an agreement with the other party. In these situations, the party who has broken off the negotiations may be liable for the losses caused to the other party. The liability for broken negotiations has traditionally been referred to as culpa in contrahendo. Traditionally a contract has been seen to come into existence when the contracting parties have exchanged their expressions of will. However, it is generally accepted in legal praxis and in jurisprudence that the conclusion of contract based on expressions of will is not the only possible way to conclude contracts. In contract negotiations, the parties can also show their agreement merely by conduct. A contract is concluded in contract negotiations when the parties intend to be legally bound, and they reach a sufficient agreement. However, these criteria must be interpreted in a way that contractual obligations do not arise accidentally. In this study culpa in contrahendo is understood as an independent form of non-contractual liability. Liability is based on non-statutory norms that derive from established business practices. Compensation for so called pure property damage based on culpa in contrahendo does not require compliance with the special conditions of the Finnish Tort Liability Act. Culpa in contrahendo is a failure to exercise sufficient care in contract negotiations. In contract negotiations, the parties are required to negotiate in good faith with an intention to reach an agreement. Parties must provide each others with sufficient and correct information about their intentions of concluding the contract and the content of their contractual obligations. The other party should not be unduly pressured into concluding the agreement. Violation of these obligations during contract negotiations may give rise to an obligation on the party in breach to compensate the injured party. Compensation for culpa in contrahendo is measured by reliance interest, which is a form of standard compensation for participating in negotiations. Reliance interest covers the costs of contract negotiations and in some cases the loss caused by the lost opportunities to conclude contracts with third parties. Reliance interest is usually greater than the damage determined by causal relationship of the culpa and its effects, but less than expectation interest. However, the amount of compensation cannot be determined according to reliance interest in all situations. The method of determining damages according to the causal relationship between actions of the party in breach and the result may also be used in a situation where these two are in conflict. However, the legal effects of culpa in contrahendo are not, in principle, determined by expectation interest.
  • Laapas, Mikko (Helsingin Kamari Oy, 2022)
    The focus of this dissertation is on analyzing the effect of the right against self-incrimination – known as a procedural principle in criminal law – in tax proceedings. The right against self-discrimination affects both the procedural principles applicable to the tax procedure and the imposition of tax sanctions. In concreto this means influencing the reporting obligations under tax law which could not be applied to traditional criminal proceedings for reasons of self-incrimination. At the same time protection against self-incrimination may in certain situations affect the use of tax increases and other administrative sanctions as a coercion to fulfill taxpayers’ disclosure obligations. The legislative changes that may be required to ease the tension between right of self-incrimination and tax regulations are also introduced as part of the research. The legal research observes the present doctrine in Finland. The perspectives of the research analysis take into account both the legal protection of taxpayers and the implementation of an efficient tax procedure. Based on the research analysis, the status and applicability of the right against self-discrimination in tax proceedings are considered local. The concept of prosecution under Article 6 of the European Convention on Human Rights and the case-law of the European Court of Human Rights have been the driving force behind the practice of this subject. However, the scope of the right against self-incrimination in tax law is not entirely clear in the case-law either. It must also be kept in mind that the privilege against self-incrimination is not entirely absolute, even in the core area of the criminal procedures. Based on the case-law we can find that the right is flexible and not an absolute procedural rule. The key issue is the fairness of the procedure, for which case-specific conclusions must be drawn. Before determining the scope of the right against self-incrimination in tax proceedings the core content of the right and its significance in general must first be assessed. In the research it is concluded that the core includes the right to remain silent. However, especially in proceedings outside the core area of criminal law the right against self-incrimination should not be seen as a right to give disinformation in the process without adverse consequences. The reason for this are the tax procedural rules which on the other hand require the taxpayer to disclose true and fair information. It is also justified to assume that the scope of the protection against self-incrimination can be applied to legal persons in addition to natural persons. It is essential to emphasize that requiring information from a taxpayer solely for the purpose of assessment of taxes is not problematic. The interpretative parts relate firstly to the earliest starting point for the right against self-incrimination in cases in which the tax procedure has a sufficient connection to a criminal matter. In the Finnish national legal praxis the privilege is applied mainly when a preliminary investigation is pending and related to the same facts with the tax proceedings. However, the views expressed in the legal literature are more diverse and it is not possible to set such a categorical starting point for this privilege. The natural starting point could be the time when an authority develops an actual suspicion of a criminal offense against the taxpayer. In this case one can also talk about an imminent threat of prosecution. An actual and imminent suspicion of a criminal offense may therefore also arise during an investigation done by the tax authorities. On the other hand, one kind of an open question is the applicability of the right against self-incrimination in the tax procedure as such when it has no connection to a traditional criminal procedure. The tax increases used in the tax procedure are not a recent phenomenon but have for a long period of time been an essential part of the sanction system of tax law. It remains somehow open if a tax procedure may be categorized as a ‘criminal proceeding’, because tax increases as administrative sanctions might be seen as ‘criminal’ penalties. Consequently, there is a danger of differentiated legal remedies and the creation of a two-tier control system, even though systematic and presumed tax increases have been considered possible and necessary to safeguard an effective tax system. According to the case-law tax increases may become problematic if they are used in a double sanction context, i.e. both a procedural and a substantive tax sanction would be imposed at the same time. This however does not seem to be a serious problem in Finland. A local special feature is also the problem of voluntary disclosures and the so-called problem of a blank tax return. These problems exist mainly due to the fact that the tax procedure is based on the obligation to file a tax return on one’s own initiative. This applies even in situations in which a taxpayer has committed a tax offence (or another crime) in the past and would be incriminated by filing a tax return. It is not possible to completely eliminate these problems, neither can the tension associated with them be significantly alleviated by means of legal interpretation. As a result the legislator should consider measures to better combine the taxpayers’ rights with the efficient tax procedure. Some recommendations for the legislator are introduced in this research. According to the case law, a distinction can also be made between the statements of a taxpayer and the pre-existing real evidence for the purposes of privilege against self-discrimination. This practice, called the Saunders Doctrine, is logical when pursuing the material truth. Especially in cases that presumably are potential targets of criminal proceedings it is often necessary to use objective real evidence when investigating the case. Obtaining real evidence is not as problematic as demanding statements from the taxpayer. In addition to the recommendations related to the interpretation of the law, the conclusions of this dissertation include some suggestions relating to the reform of legislation. For the sake of clarity, the application of the taxpayers’ right against self-incrimination – and the authorities’ duty to notify taxpayers of this right – should be provided in the Tax Procedure Act. The scope of the tax increases could also be clarified by adjusting the provisions related to tax increases. In that case the legislature could ensure that procedural tax increases are not used as a coercion in cases which proceed to criminal proceedings. In addition the procedural penalties should not be imposed in cases in which substantive tax increases are used. On the other hand in order to ensure an efficient tax procedure certain new coercive means, e.g. the right to seize accounting records, should be granted to the Tax Administration. The problems related to the voluntary disclosure situations can be alleviated through a new regulation of effective repentance. The legislative reforms suggested in the dissertation should be discussed in more detail in further research. In addition, broader comparative legal aspects would be valuable topics to be analyzed further.
  • Väisänen, Tiina (Alma Talent, 2022)
    This study examines whether the spouses’ statutory employment pension rights should be taken into account in the division of matrimonial property following a divorce. In Finnish marriage regulation, the basic premise is the principle of equal sharing. This means that, at the end of the marriage, the value of the spouses’ marital property is shared equally. The aim of this principle is to ensure that spouses are treated equally and in a socially fair way. According to the established interpretation of the marriage regulation, the spouses’ pension rights are not divided. This interpretation has been established in the literature, almost without discussion. However, no legal policy decision on the subject has been made, and neither has it been specifically examined in legal research, although the need for that has long been raised. The issue is important, as employment pension rights can be said to be the most important asset of spouses. The issue is also significant because different spouses’ pension rights are treated differently in the divorce division, as savings in voluntary pension insurance are often divided. The importance of pensions following a divorce has been widely discussed internationally, such as in England, Germany, and the other Nordic countries. Also, The Committee on the Elimination of Discrimination against Women (CEDAW) has raised the issue in its recommendations as statistics show that pensions are often distributed unevenly among spouses, particularly to the detriment of women. Therefore, this study focuses on whether the principle of equal sharing would support spouses’ pensions being shared following a divorce. The research question is examined through three sub-questions. First, from the point of view of whether the fundamental principles of the matrimonial property regime, in particular the objective of spouses being treated equally, would support an interpretation that statutory employment pension rights be divided. Secondly, whether the division of statutory employment pension rights would be possible by interpreting the current marriage regulation. And thirdly, by assessing whether and in what way there would be a need for regulatory change. Internationally there is a consensus that the marital property regulation is still mainly a matter for national actors. Therefore, the focus in this study is the national perspective and the main source material is national legal material: the regulation of marriage law, its preliminary work, preliminary rulings on it and the legal literature. In addition, the study also reviews legal comparative material, especially Nordic legislation. The adopted research trend is a combination of theoretical and practical dogmatic research. However, the study has also a legal policy and a comparative approach, as it seeks to find an answer to the question of whether there is a need to change the current marriage legislation and whether good models would be available in other countries. The results of the study show that Finnish employment pension rights are not only one spouse’s social security, but also assets that the other spouse usually indirectly affects during the marriage. They can thus be equated with the spouses’ earned property. Dividing this type of earned property accumulated during marriage has typically been considered fair both in Finland and elsewhere in Europe. Earnings related pension rights can also lead to unbalanced division outcomes, as different pension rights are sometimes treated differently in the division. The main argument of the study is that it would be justified to take the spouses’ employment pension rights into account in the division following a divorce. However, this is not possible by interpreting the current marriage law, and it would require changes in legislation. The best way to achieve this goal would be to achieve a comprehensive solution by dividing the spouses’ employment pension rights in a separate process (so called pension sharing). Perspectives on the overall solution are available, for example, from German law. The division of pension rights would require solutions to many issues, and the subject is difficult overall. In the other Nordic countries, therefore, the possibility of dividing employment pension rights has been ruled out, even if the main principles of marriage legislation support it. Taking into account the Nordic comparative data it is possible that the same result would be reached in Finland. Therefore, it remains to be seen, whether the most unreasonable situations caused by the pension rights should be remedied with similar partial solutions as in other Nordic countries. The study therefore concludes by proposing the addition of special regulation in the marriage act, as a partial solution, the possibility of supplementing the adjustment regulation such as in Sweden and the compensation regime such as in Norway and Denmark. The models proposed are a preliminary reflection to support further discussion. It is hoped that further discussion will take place, as the subject is of social importance.
  • Maroni, Marta (Unigrafia, 2022)
    This dissertation looks at the right to access the Internet through a conceptual analysis, which considers the normativity of the Internet. It points out how the question of inclusion and exclusion is determined by the mediating power of internet technologies. Based on internet governance studies, this thesis moves beyond a techno deterministic understanding of access to the Internet (framed as access/non-access) and identifies major problematic trends transforming and shaping the use of the Internet. In particular, it focuses on the incremental centralization of the Internet into the hands of a few transnational private companies, and as a result, how these actors are in a position to determine not only what is accessible or not, but also our societal values. Further, the dissertation underscores how none of these private actors operates in a lawless way and it traces back how the legal system has been constitutive of the abovementioned dynamics and is at the same time being transformed by them. By applying systems theory, this dissertation argues that the right to access the Internet should be understood as based on an organizational principle for the Internet aiming to maintain equal access and a diverse and plural ecosystem. Different facets of access to the Internet are discussed and analysed in three case studies: ICANN, network neutrality, and platform content moderation. Each case uncovers constitutional problems relating to the practices and procedures of different private companies. While recognizing these actors as new constitutional subjects, this dissertation questions the vocabulary of digital constitutionalism when conceived merely as a way of reacting to and limiting the power of private companies. Building on the sociology of constitutions, this dissertation looks at the institutive and legitimizing function of constitutions and examines the question of which and whose order is being constituted while promoting the language of constitutionalism. Methodologically, the dissertation uniquely combines systems theory, legal analysis, transnational constitutionalism, media theories, science and technology studies and brings to light democratic problems arising from the interplay between law and internet technologies. The thesis thus sets up a theoretical background for further research on internet regulation and related constitutional issues.
  • Mattila, Tuomas (Suomalainen Lakimiesyhdistys, 2022)
    Who should be considered to be an author of a collectively created and copyrighted work if the individual input of each participant is difficult or even impossible to measure? Sometimes the identity of individual participants of a collective creative work may also remain anonymous. Such may be in the case of traditional cultural expressions or collectively created works in a digital world. How can copyright that belongs originally to an anonymous and collective author be administered under the current copyright laws? What kind of legal substance do the concepts of authorship and creativity consist of, and how can these concepts be interpreted and used to advance collective creativity under the Finnish copyright law? Finland’s copyright law is ambiguous on several key questions, such as what subjects can claim authorship of a work, and what activities should be considered to be creative inputs and serve as the basis for a claim of authorship. Furthermore, if individual people participating in a joint creative process cannot be recognised, as might be the case in crowdsourced creative processes, it is not clear how the copyright can be administered. One of the key questions is, could the authorship of a work be attributed to, or deemed to relate to communities or groups, if individual people within the groups cannot be identified. The interpretation of legal concepts of authorship and creativity can be made by using the legal-doctrinal method, but also teleological interpretations are examined, considering the purposes and objectives of copyright law in its entirety. The suitability of these key concepts to enhance and support creative work in processes based on cooperation and communality is then examined through four case studies. These examples concern traditional cultural expressions by indigenous people, collaborative scientific research, communal arts, and collaborative writing. These case studies illustrate the challenges and problems which arise when primarily individualistic concepts of authorship and creativity are applied in predominantly communal contexts. In the study it is argued that legally recognising customary rules and norms would enhance the opportunity for copyright law to facilitate creative work in collective processes. Secondly, it is argued that the authorial subjectivity in creative processes based on cooperation and communality is not necessarily ipso facto authorship in individualistic terms. Thirdly, it is argued that even under existing copyright law, copyright pertaining to anonymous and collective authors can be represented by a legal representative.
  • Hirvonen-Ere, Suvi (Helsingin yliopisto, 2021)
    This monograph is a multidisciplinary doctoral dissertation under the socio-legal umbrella. The topic dictating the chosen methods is Contract Management. The context is large and complex project type of business contracts between global corporations and other large international private sector businesses. Although the underlying perspective is from inside of an operating business organization and its professional in-house Contract Management department mainly on the sell-side, examples on the buy-side are also utilized. The industry field is primarily ICT, but sources from construction and military are also used. Via utilizing, inter alia, the goal-oriented teleological method, the values underpinning the study are looking at a contract and contracting through the so-called Contract Management lens and proactively seeking coherence, collaboration, and mutually beneficial contract outcomes between the parties on a long-term basis. The study defines Contract Management as an international systemic business contract approach to manage the contract lifecycle and to orchestrate a corporation's legal, commercial and contractual business contract activity in a coherent manner, on a high-end maturity level. Such an approach brings significant direct monetary value and strategic competitive advantage to companies that apply it. Contract Management aims to increase the contractual quality, efficiency and risk/reward balance of a company’s business contracts, and decrease the amount of wasted money, time, resources and quality. This leads to a better relationship between the parties, and fewer disputes and contractual conflicts. Contract Management provides the parties, inter alia, with a flexible framework to agree upon changes and settle claims and proactively prevent risks over the contract lifecycle. Contract Management achieves this via utilization of so-called war stories and lessons learned and developing them further to produce best practices, processes and policies, and via using tools, such as software systems, to facilitate the Contract Management modus operandi. This study acknowledges that there is no one-size-fits-all Contract Management applicable globally and approaches the broad topic of Contract Management via the following research questions: 1. What is Contract Management and why does it matter? 2. How does Contract Management lead to the expected benefits in the contracting practice? 3. Are the legal aspect and passing the legal test sufficient to constitute a large and complex project type of a business contract? 4. What are the other aspects of a contract? Are they needed to constitute a coherent ‘contract (as) integrity’ (ex analogia Ronald Dworkin’s iconic law as integrity)? 5. One underlying question of the research is asked by an American philosopher, pragmatist William James: “What concrete difference does it being true make in any one’s actual life…?” Translated into the legal and business language: if what this dissertation argues is true, what difference would enhanced adoption of Contract Management modus operandi make to the legal quality of contracts and to the businesses that apply it? What should companies start doing differently tomorrow? The study is structured as follows. The Prologue sets the scene by presenting the scandalous Enron case and its relation to Contract Management. Chapter 1 introduces the study. Chapter 2 explains various definitions of Contract Management. Chapter 3 presents an example of contracts in action via the scope creep problem and Contract Management solutions to it, and explains how the choices over the commercial model, delivery model and contract strategy affect the likelihood for scope creep to arise. It also explains how to mitigate the impact of scope creep. Chapter 4 explains why the legal aspect of a contract is not sufficient in itself, and Chapter 5 explains what the other contractual aspects are and how they affect the coherence of contract. Chapter 6 concludes the study by presenting a contract as a multi-aspect, multidisciplinary, coherent ‘contract as integrity’. Contract Management is the glue, or mortar, between the bricks, that binds all aspects of a contract and a company’s contracting activity together. This study proposes several solutions that can be implemented in the contract practice to mutually benefit both parties. In addition, the study has resulted in the creation of a visual metaphor, showing a contract as a multi-cup scale (inspired by the scales of justice). Further, the dissertation takes steps towards creating a theory of contractual balances. As Contract Management is a very broad theme, it also proposes topics for future research. The Epilogue ponders whether it will be possible to close the circle started by the Enron case. If yes, what would that imply? What did we learn from the Enron case, if indeed we learned anything? Key words: Contract Management, Contract Lifecycle Management, Enron, scope creep, change management, contract as integrity, coherence
  • Jämsä, Jurkka (Suomalainen Lakimiesyhdistys, 2021)
    The topic of this research is legal norms restricting the admissibility of evidence in Finnish criminal procedure. Its primary method is doctrinal but, in addition, epistemological and comparative notions are employed to broaden the view of the subject. Traditionally, Finnish legal research has used Scandinavian and German law as the point of comparison. Here, an attempt is made to focus more on the British and American law of evidence. This does not mean, however, that Scandinavia or Germany should be overlooked. The normative structure of the Finnish law of evidence has, after all, been influenced mostly by both. It has been said that evidence law is a matter of epistemology, the philosophy of knowledge. The role of evidence is to provide grounds for knowledge with legal implications. For that reason, the basic maxim of free proof is to allow as much information in a trial as possible. Indeed, any limitation on evidence means a limitation on knowledge, and may have direct effects on a trial’s outcome. Against this background, the admissibility of evidence should only be restricted if its admission would jeopardise an interest even greater in weight than a correct outcome. A brief analysis of such interests is essential for understanding rules of admissibility. For at least two decades now, praxis of the European Court of Human Rights (ECtHR) on the right to a fair trial has had a great impact on the development and interpretation of Finnish evidence law. As a result of this, it is important to recognise and analyse exactly what requirements for the use of evidence can and should be derived from this praxis. This research suggests that the traditional German framework of admissibility rules – which distinguishes between forbidden subjects, means, and methods of gathering and introducing evidence – needs to be modified in order to understand the latest developments. The framework suggested in this research is based upon three variable elements that are common for all rules restricting the use of evidence. The traditional division is incorporated into the framework as its first element, pointing out the object of the restriction, i.e. what sort of use of evidence is being restricted. Secondly, it is important to recognise and distinguish between rigid rules forbidding a particular use from those more flexible that set conditions for using evidence. Should the conditions be met, the evidence may be used. Lastly, not all restrictions apply similarly (or at all) in all three stages of the procedure: pre-trial investigation, trial, and deliberation. After outlining a framework, it is put into use by analysing the target, flexibility, and phase(s) of application of all legal norms restricting the freedom of proof. The main focus is on the ECtHR praxis, which is growing in importance but not comprehensively analysed. Using the new and more nuanced framework, an attempt is made to explain in greater detail the differences between the more traditional rules of admissibility on the one hand and those derived from the ECtHR’s judgements on the other. It is especially within these judgements that a greater flexibility is found in comparison to the established rules of admissibility such as various professional privileges. Perhaps the most difficult and challenging rules of evidence are those resulting from the breaches of either the privilege against self-incrimination or the right to cross-examine prosecution witnesses. There are landmark judgements within the jurisprudence of the ECtHR on both subjects; yet, it seems that the Strasbourg Court has been unsuccessful in creating an understandable and practical model for evaluating the effects of these breaches. Another important attempt of this research is to clarify and interpret the ECtHR’s judgements in order to understand how these evaluations should be made. This would hopefully benefit not only academia, but the legal practitioners as well.
  • 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.
  • Nieminen-Finne, Hanna (Suomalainen Lakimiesyhdistys, 2020)
    EXPERT AS JUDGE: EXPERT JUDGES OF TECHNICAL AND NATURAL SCIENCES IN ENVIRONMENTAL PROTECTION CASES AT THE ADMINISTRATIVE COURT This dissertation examines the role of expert judges who participate in resolving environmental protection cases at the administrative court of Vaasa, Finland, which is the first appeal instance. These expert judges are either engineers or have a degree in natural sciences. They work as full-time judges. This study is doctrinal and belongs to the discipline of procedural administrative law. In addition, aspects of other areas of law such as procedural law, environmental law, EU law, human rights law and Finnish constitutional law are taken into consideration. The study starts with an overview of modern environmental law and procedural environmental law. Procedural environmental law, that is, the process at the court of appeal, has its own characteristics. The study briefly describes the history of the environmental expert judges and also looks at the other experts who work at the Finnish administrative courts as part-time members, for example, in child welfare cases. Both constitutional and international elements concerning expert judges are taken into consideration. The environment has an important position in the Finnish constitution, and national environmental law has strong connections to EU law. The requirements of fair trial according to the Convention on Human Rights and the European Court of Human Rights are described as well. The most interesting elements of fair trial, from the expert judges’ point of view, are the adversary principle and the independence and impartiality of the court. Access to a court, access to justice and the Arhus Convention form an important part of the various international aspects associated with expert judges. The broad international discussion about the need for expertise and environmental courts or tribunals is highlighted. Several international aspects, such as procedural requirements deriving from EU law and the Arhus Convention, seem to support the system of expert judges. Even the element most critical of the role of expert judges, the adversary principle, does not demand the abolishment of the system of expert judges in environmental cases. The dissertation ends with an overview of the practical aspects of Finnish environmental procedural law and an analysis of the case law of the Vaasa administrative court.
  • Forji Amin, George (2020)
    This thesis examines the historical economic processes and legal regimes between the 15th and 19th centuries that caused Sub-Saharan Africa to assume the trajectory of underdevelopment in the world system. Particular emphasis is placed on various development initiatives which international law has historically legitimated for Africa and how they have shaped the continent economically. It is underscored that European extraterritorial imperialism during the era under consideration, was a political expression, poignantly expressed through evangelizing and civilizing missions. The first objective of the thesis is to interrogate the economic and legal components of the evangelizing and civilizing missions, especially the way in which international law introduced two economic institutions that were to shape the economic future of Sub-Saharan Africa for centuries, namely: trade and private property rights. The study observes that a regime of exception advanced by publicists between the 15th and 18th centuries, enabled international law to conceptualize human beings as legitimate private property. Upon invoking and relying on Papal Bull decrees as well as just war doctrines, European powers were able not only to trade Sub-Saharan African peoples as commodities (slaves), but also maintained them in the Americas under conditions of bondage as legitimate goods, marred by grave violation of rights. The second objective is to explore the techniques according to which African Sovereignty was roundly submerged into European Sovereignty in the 19th century, following the wave of rivalries by varying European companies scrambling for territorial control across Africa. It is underscored that the validation of the concept of “effective occupation” at the 1884-85 Berlin Conference as an acceptable legal standard for European appropriation of colonies on the continent, not only resulted to the partition of the continent to become European protectorates but moreover brought about a pivotal shift in the discipline of international law. The 19th century was accordingly animated by the logic of the civilizing mission—the duty of the civilized to rule and nurture the uncivilized—a modality for preparing them to join the family of nations. The study underscores that doctrines of trade and property rights sanctioned by international law resulted to a trend of dispossession of non-Europeans in general and Africans in particular by Europeans colonizers. While it is peoples that Africa was robbed of during the first era (15th-18th centuries), in the second era (19th century), the entire continent was appropriated and partitioned as protectorates of European sovereigns. This study embraces two interdisciplinary methodologies, which are primarily historical but also critical and philosophical. The two approaches are Marxism and Third World Approaches to International Law (TWAIL). Whereas the former puts emphasis on the exploitative nature of the international legal order and its historiography, the latter conceives international law from the standpoint of the Third World, denouncing its current oppressive nature while at the same time underlying its liberating potential.
  • Tolttila, Karri (Suomalainen Lakimiesyhdistys, 2020)
    This study analyses one of the most prominent instrument of mutual recognition, the European Arrest Warrant (EAW). The surrender mechanism of EAW is meant to replace the system of extradition based on a complex network of international conventions and bilateral treaties, which has governed the relationships between the Member States of EU. By replacing the previous extradition systems like the 1957 European Convention on Extradition (ECE), the EAW has introduced a system of surrender between judicial authorities for categorized offences, without control of double criminality and other traditional conditions for extradition. This system of surrender is established through Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (hereinafter “Framework Decision). The rules governing the Framework Decision in Finland are laid down in an Act of Parliament: laki (1286/2003) rikoksen johdosta tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä. With the EAW, traditional political and diplomatic extradition cooperation between States is replaced by direct cooperation between judicial authorities. This means that the surrender is a judicial, and not anymore a political matter. Furthermore, as the surrender system is based on the principle of mutual recognition, an EAW is not a request in a traditional sense that can be granted or refused by the recipient State. According to Article 1(2) of the Framework Decision “shall” be executed and the terminology of Articles 3 and 4 of the FD speaks of cases on “non-execution” of an EAW rather than “refusal to grant”. The aim for the study is to find out in which situations and for what conditions a requested person can be surrendered from a Member State to another Member State within EU. This thesis explores the major changes that the EAW system has introduced compared to traditional extradition. Secondly, the study analyses the consequences that these changes have from the point of individual and what is the added value of the EAW for efficient criminal law cooperation between EU Member States. The aspect of the study focuses on the Member State level (in this case especially Finland). The thesis studies the impact of the EU developments on the national legislation with the aim of pinpointing similarities and differences between extradition and surrender; EU legislation and national Member State implementation legislation, and the influences which affect these distinctions. The thesis analyses the meaning and functioning of the principles of mutual recognition and mutual trust. Mutual trust is an essential element of mutual recognition as it enables free movement of judicial decisions across the EU via the recognition and execution of foreign judgements with a minimum of formality and limited grounds for refusal. It is argued whether it is appropriate that cooperation can take place on the basis of a high level of mutual trust in the criminal justice systems of Member States, premised upon the presumption that fundamental rights are in principle respected fully across the EU. The thesis follows legal dogmatic methods. The aim is to analyse legal norms and legal constructions and give them content and context. The dogmatic method applied to the study is supported by practical analysis. The aim is not only to reach conclusions concerning the contents of legal norms e.g. rules governing extradition and surrender and requirements of law but study the practical functioning of these norms.
  • Kari, Ville (2020)
    This thesis explores the rise and fall of the classical doctrine of civil war in international law. The doctrine was based on the legal concepts of war, peace and neutrality and their application to internal conflicts. In the traditional Westphalian system, rebellions and insurrections were understood strictly as internal affairs of sovereign states, and insurgents enjoyed no standing before the law of nations. However, under some circumstances the facts of an insurrection would necessitate its recognition by foreign powers as a situation of civil war, where the laws of war and neutrality applied. While the classical law of civil war was once a well-known part of legal scholarship, there have been few major studies on the subject for several decades, and the classical concepts and arguments of civil war have become increasingly difficult to assess using the present-day vocabularies. This study seeks to make the classical doctrine more understandable again, and to explain how it fell out of use in the twentieth century. The main findings are as follows. The origins of the doctrine were in the early modern revolutions, in particular the Dutch revolt and the English civil war. The synthesis of the legal principles of civil war was drafted by Emer de Vattel in his Droit des gens (1758). The rise of the classical doctrine of civil war took place when those principles were invoked by the American and Spanish American colonial revolutionaries during the transatlantic revolutions, as they established insurgent prize jurisdictions and claimed belligerent rights on the high seas. The doctrine began its decline in state practice after the abolition of privateers in 1856 and the Geneva arbitration in 1872. The practice of belligerent recognition was gradually superseded by alternative and often more indeterminate approaches, such as the qualified recognition of insurgencies. This also contributed to the gradual development of the law of intervention and the law of state responsibility as legal approaches to internal conflicts. After international law took a more professional form in the 1870s, the classical doctrine of civil war was developed further by legal scholars. Dedicated monographs were published by Carlos Wiesse and Marquis d’Olivart in the 1890s, and two resolutions on the subject were passed by the Institut de Droit International in 1900. But with the renunciation of war in 1928 and the founding of the United Nations in 1945, civil war as a legal concept began to wither away and was eventually replaced by the new languages of armed conflict and international humanitarian law. The transition led into a crisis in the classical law of civil war, as illustrated by the case example of the Spanish civil war in 1936–1939. The sunset of the classical doctrine of civil war can be identified in the drafting of the Geneva Conventions of 1949, in the new legal approaches arising from decolonization, and in its final consideration at the Institut session at Wiesbaden in 1975.
  • Nugroho, Adrianto Dwi (Unigrafia Oy, 2020)
    This dissertation seeks to explore the issue of beneficial ownership requirement in international tax law. As a bilateral tax treaty term that dictates the taxation on cross-border distribution of dividends, interests, and royalties, the requirement has not achieved the degree of legal certainty by which stakeholders can foresee a harmonious application of the requirement across different countries. Tax authorities and courts have divergently applied the requirement in accordance with their legal traditions. Results of this research show that legal uncertainty concerning application of the requirement persists due to three substantive reasons. First, the requirement has been assigned an attributive nature by which a country can dictate the application of the requirement against another country. Second, the objective of an ‘international fiscal meaning’ of the requirement disregards the fact that the term ‘beneficial ownership’ is originated from private law. Third, the use of the requirement as means to combat tax avoidance practices has not always been successful during court trials. Legal certainty towards the application of the requirement may be achieved by assigning a limitative nature to the requirement. This means that the requirement does not aim at finding the ultimate owner of income. Rather, application of the requirement should only call for evaluation of the possession of ownership rights by the immediate recipient in a cross-border income transaction. Other methods to achieve certainty include optimisation of the various international cooperation in tax matters, and the holding of dialogues amongst courts in different countries.
  • Collin, Jesse (Alma Talent Oy, 2020)
    Osake ja modernit arvopaperimarkkinat on yhtiö- ja arvopaperimarkkinaoikeudellinen väitöskirja pörssiyhtiön osakkeen omistuksen sisällöstä suhteessa tiettyihin rahoitusvälineisiin. Osakkeenomistajilla on keskeinen rooli osakeyhtiön hallinnossa (corporate governancessa), sillä heille on annettu viimekätinen valta päättää yhtiön asioista äänestämällä yhtiökokouksessa. Perinteisesti suhteessa osakeyhtiöön osakkeen on katsottu muodostavan jakamattomana pidetyn oikeuksien ja velvollisuuksien summan. Lisäksi osakkeenomistajille annettuja oikeuksia on perusteltu oman pääoman ehtoisen sijoituksen riskillä, sillä yhtiön rahoittajien keskuudessa osakkeenomistajien sijoitusta on pidetty kaikkein riskipitoisimpana. Finanssiteknologian ja arvopaperimarkkinoiden kehityksen myötä perinteinen käsitys osakeomistuksen sisällöstä on murentumassa. Esimerkiksi eurooppalaiset aktivistiosakkeenomistajat ovat kyenneet pilkkomaan osakkeen tuottamia oikeuksia irti toisistansa ja muokkaamaan osakeomistuksen riskiä hyödyntämällä moderneja rahoitusvälineitä ja markkinakäytäntöjä, kuten johdannaisinstrumentteja ja lyhyeksimyyntiä. Tämä niin kutsuttu osakeoikeuksien pilkkominen on vaikuttanut eurooppalaiseen yhtiö- ja arvopaperimarkkinasääntelyä koskevaan sääntelypoliittiseen keskusteluun sekä muovannut pörssiyhtiöitä koskettavaa viimeaikaista EU-sääntelyä. Tutkimuksessa perehdytään syvällisesti pörssiyhtiön osakeomistusta määrittäviin taustateorioihin ja nykyaikaiseen osakkeenomistaja-aktivismiin. Toisaalta teoksessa tarkastellaan kattavasti käytännönläheisellä otteella osakkeenomistajan oikeuksia ja velvollisuuksia määrittävää yhtiö- ja arvopaperimarkkinaoikeudellista sääntelyä. Tutkimuksessa on huomioitu kattavasti pörssiyhtiöiden osakeomistusta koskettava kansallinen sääntely erityispiirteineen kuten myös viime aikoina merkittäviä muutoksia läpikäynyt EU-sääntely.
  • Wasastjerna, Maria (Unigrafia, 2019)
    This doctoral thesis examines the role of privacy in competition law in the age of digitalization and big data. It explores the growing significance of data protection and looks at the interlinkage between privacy and competition policy, thereby testing conventional boundaries and expanding horizons. With the transition to the data-driven economy, our society has grown to rely on products and services that are free of charge to consumers, but because they have no monetary price, there is hesitation whether, and how, action should follow. The thesis questions whether competition policy is too fixated on the idea that the only real harm to consumers consists of rising prices. Consumers pay for online services with time and data. When many products and services seem free in today’s online markets, with user data as the invisible cost, looking only at price effects in competition analysis is misleading. The thesis asserts that an overly price-centered approach to competition policy risks overlooking welfare harms that relate to significant non-price dimensions, such as privacy and consumer choice. The research objectives and questions explored in the thesis can be summarized by way of sub-questions, namely what is the role (if any) of personal data and privacy in competition law? Should competition policy protect privacy among its objectives, and if so - how? The findings point to current shortcomings in competition law and propose a rethinking of competition policy for the data economy. This includes a proposal to expand horizons beyond a static price-centric approach, incorporating a privacy dimension to competition law and exploring a conjoined policy approach. Here, competition law is examined not only from a strictly legal perspective, but in a wider context, including elements that are societal, political, economic, historical and cultural. The thesis emphasizes that over time, many different values have been advocated in the name of competition law and depending on the interests that are being promoted, different objectives are put forward as a driver for law enforcement. This is all the more true today when observing the public discussion and politics around competition in digital markets and companies’ use of data as market power, think only of the Cambridge-Analytica scandal and Facebook’s handling of personal information. The topic of the thesis is timely and highly relevant. By providing a comprehensive insight into competition policy in the digital economy, and especially the role of personal data in this context, the thesis offers important contributions and policy considerations to the current debate. Readers are provided with an overview of the contemporary interplay between competition, data and privacy in the digital economy, including implications for business practice, reflections on the way forward and suggestions for future research.
  • 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. .
  • Hokkanen, Marja (Hokkanen Marja, 2019)
    If derivatives are capable of destabilizing the world economy, they are too powerful a tool to be ignored in European value added tax (VAT). That said, while certain types of derivatives, such as gold derivatives and certain options, are currently regulated under the EU VAT Directive (2006/112/EC), the lack of regulation in respect of derivatives in general has led to individual EU Member States treating derivatives very differently. The distinct lack of regulation on an EU level brings uncertainty as to how these instruments should be treated and the resulting inconsistencies and lack of guidance at a national level has effectively jeopardized any prospect of achieving neutrality and equality of treatment across the EU derivatives market. The European Commission published its proposal for a Council Directive amending Directive 2006/112/EC on the common system of value added tax in 2007. These proposals also included regulation on derivatives. However, a final compromise was never reached and the proposals were finally withdrawn by the Commission in April 2016. The challenge to define derivatives in the scope of the European VAT System is not easy because of the diversity of derivatives. At the same time, the European VAT System sets challenges to the analyze phenomena as legal tender, consideration or reciprocal supplies which have a special role in the world of derivatives, just to name few. The aim of the research is to define the most common types of derivatives i.e. commodity and financial options, futures, forwards and swaps in terms of the European VAT system and to bring clarity to the EU area regarding their VAT treatment on the basis of the VAT Directive, the primary purpose being to give concrete answers as to how derivatives should be treated with specific reference to the scope of the VAT system as defined under Articles 1 and 2(1) of the Directive. In addition to the supply of commodities, interesting questions arise regarding whether derivative trading can be considered an economic activity as defined under Article 9(1) of the VAT Directive. Fundamental questions include whether the VAT system itself effectively conspires to exclude derivatives from its scope; whether derivatives traders effectively act as taxable persons under the VAT system; whether derivatives as financial instruments or contracts represent transactions in goods or services in VAT terms; or, whether the underlying transactions in goods and services should provide the sole focus for VAT. In addition, the nature of derivatives as financial instruments raises questions as to whether derivatives should also be entitled to the exemption afforded financial and insurance services under Article 135(1) of the VAT Directive. Other pertinent questions arising concern are what, if anything, constitutes consideration under a derivative as well as when VAT becomes due, i.e. when the chargeable event takes place. In addressing the research question, the doctrinal method is appropriate in bringing clarity to the definition of the scope of VAT as a key first step. The interpretation of Articles 2(1)(a) and (c), 9(1) and 135(1) of the VAT Directive are crucial in this regard and effectively forms the basis for the research. A testbed created from the key features (building blocks) of the VAT system forms the basis for the systems thinking. These key features are the role of VAT as a tax on consumption, the wide scope of VAT, the narrow interpretation of exempt supplies as well as the principle of neutrality in terms of similar supplies.

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