Oikeustieteellinen tiedekunta

 

Recent Submissions

  • Marjosola, Heikki (Helsingin yliopisto, 2017)
    This dissertation studies the institutional transformation of the European Union s regulatory framework for financial markets and institutions. The dissertation is based on four articles, which deal with several challenges of the transformation: they analyse the economic rationale behind the institutional reforms; identify possible gaps, missing pieces, and problems that remain; and examine how the Court of Justice of the European Union (CJEU) has handled certain difficult questions about the legality of the new powers and institutional arrangements. The institutional innovations in the EU since the financial crisis have consisted primarily of increasingly hierarchical and supranational means of control, which have been buttressed by a far-reaching maximum harmonisation agenda. The dissertation argues that these choices have not been balanced with due consideration of their costs and trade-offs. Alternative governance strategies, such as the use of general courts as tools of ex post, principles-based enforcement, have been neglected. On the other hand, in certain critical areas of prudential financial regulation, the transfer of competences to the EU level seems incomplete. These arguments will be developed with the help of a novel approach to the study of financial regulation. Drawing on transaction cost economics and contract theory, the approach builds on the notion of law being incomplete and subject to various hazards of opportunism. Two specific governance problems will be examined, each of which can diminish the effectiveness of regulation and threaten the stability of the regulatory contract: (1) the problem of financial innovation, and (2) the problem of regulatory arbitrage and regulatory competition. Especially the latter can also lead to the underproduction of financial stability as a public good. The dissertation also considers the constitutional framework of the institutional transformation. Constitutional rules, whose function is to constrain the use of public power, limit the alternatives of policy-makers and regulators. However, the post-crisis case law of the CJEU, such as the fleshing out by the Court of new intervention powers from a vague Treaty basis, supports the view that the Lisbon Treaty can be seen as a type of highly adjustable relational contract. However, owing to the possibly conflicting relationship between the new financial stability oriented executive powers, and the more complete and directly effective free movement rights, the EU s economic constitution must deal with more fundamental design problems, which might jeopardise its consistency and continuity.
  • Finell, Lisbe (2017)
    The overall aim of the Ph.D. research is to assess the risks of lifting the sector-specific competition provisions in European Union telecommunications from compliance theory perspective. The dissertation examines principally in which manner the competition law pillar at the European Union level, driven by the European Commission s policy, shape compliance with Article 102 of the Treaty on the Functioning of the European Union (TFEU) on abuse of a dominant position. The multiple factors affecting corporate misconduct are examined in the light of mainly seminal general Anglo-Saxon corporate compliance theories and empirical studies, which are completed with competition law specific respective material. Regarding specific analysis of the legitimacy of a certain Article 102 prohibition, a supplementary external benchmark is chosen from the European Convention on Human Rights provisions. The research data and analysis may be characterised as being legal, economic, and sociological. The research results show first of all that the recognisable industry related incentives and opportunities to breach Article 102 are generally high in European Union telecommunications. As to the regulatory response, the study emphasises that the content of regulatory objectives and the manner of their communication play an important part in grounding the various compliance motives of the target group members characterised as normative, economic, and social. Nevertheless, neither the content nor the prioritisation of Article 102 objectives, being able to lead to contradictory results, is clearly communicated overall within the European Union institutions. With respect to substantive legal norms, the clarity and administrability of a prohibition, both relating to ability to comply and awareness of risks of non-compliance, are further important for all three motivational categories. The level of precision of Article 102 prohibitions concerning exclusionary conducts has undoubtedly arisen by the issuance of the Commission Article 102 Guidance Paper. The current assessment criteria of Article 102 Guidance Paper seem, however, to raise still a concern about their level of clarity and easiness to apply even for exclusionary abuses. Regarding legitimacy aspects of the Article 102 regulatory regime, the study has focused on assessing the vast mandated access criteria set for former public utilities by the Article 102 Guidance Paper. The results show that these mandated access criteria do not have a full, unequivocal back-up from European Union Courts case-law. They, nonetheless, may be seen on a principle and general level to satisfy the minimum requirements contained in Article 1 of Protocol No. 1 of European Convention of Human Rights for property right interferences. The nature and level of expected sanctions as well as the enforcement pressure are traditional means to affect compliance. The overall research results show, nonetheless, that the Commission s expected sanctioning and enforcement policy do not, as such, give predominantly strong incentives to invest in compliance with the Article 102 regime. As a consequence, the risks of lifting the sector-specific competition provisions in European Union telecommunications from our research perspective are considered generally high in the short or medium term.
  • Pohjola, Annakaisa (Suomalainen Lakimiesyhdistys, 2017)
    DANGEROUS OFFENDER? A study on offender risk assessment within the Finnish penal system In certain situations, the Finnish Penal System requires a future dangerousness evaluation to be made of criminal offenders. A future dangerousness evaluation is a risk assessment of the probability of an offender guilty of a serious violent crime or sexual offence committing a similar crime in the future. In this multidisciplinary research, I critically examine and interpret the criminal law legislation concerning the risk assessment of offenders, the psychiatric-psychological and normative practices applied to evaluations, the relevant legal principles and basic and human rights as well as the challenges these might raise in this context. In addition, the research introduces empirical research data concerning especially (1) offenders who have been evaluated in terms of their dangerousness in Finland, (2) respective expert statements based on their risk assessments and (3) judgments and decisions where the court has taken into account the dangerousness of these offenders. A positive future dangerousness evaluation has considerable consequences on the right to liberty of an offender. A consequence of an attempt to prevent dangerous offenders from reoffending is that the offenders are required to serve their entire sentence in prison or are banned from getting on regular parole for a life or entire prison sentence. This means that the time to be served in prison is longer than in the case of a normal sentence given on the basis of act culpability and the principle of proportionality. Because an offender who is assessed to be dangerous is punished in part for something which he has not yet committed, the criminal law system requires strong justifiable criteria to be established for these risk assessments. Due to criminal law principles as well as basic and human rights considerations, evaluating the dangerousness of offenders is complicated, as it is necessary to weigh against each other the concrete elements of dangerousness, formal and substantive justice along with the overall legal safeguards of the justice system. This research shows the interconnectedness of different fields of science legal, psychiatric and psychological in evaluating dangerousness. In forensic psychiatry, the medical, especially psychiatric, and psychological aspects are in the foreground whereas in legal proceedings the matter is evaluated on legal grounds. These different approaches in the evaluation of dangerousness present the serious challenge of compatibility. It follows that forensic psychiatry specialists need to be aware of the relevant legal preconditions for a dangerousness assessment of an offender and, on the other hand, judges who evaluate the case in normative terms have to be familiar with the basic principles and premises of forensic psychiatry evaluations. Central to the attempt to assess the dangerousness of offenders and reduce their violent behaviour is to identify relevant risk and protective factors. The future violent behaviour of an offender is difficult to predict with certainty, as it often depends on the changeable situational context and various individual risk and protective factors, all of which have different weight in a risk assessment. The primary risk factors which can be used to predict reoffending include former violent behaviour, substance abuse, psychopathy, antisocial personality disorder and other mental disorders. Psychiatrists and psychologists usually cite these factors in their statements indicating a person s dangerousness. A future dangerousness evaluation is challenging in many ways. Particularly problematic is the possibility of false positive assessment, meaning that an offender is deemed dangerous when he actually is not. For this reason, carrying out a risk assessment requires special diligence, exactness and taking into account all relevant requirements during the entire evaluation process. There is a need for exact and comprehensive legislation which would define the requirements for conducting valid forensic psychiatric evaluations of the future dangerousness of offenders. In this way, the legal rights of offenders would be protected more effectively because there would be a greater certainty of forensic psychiatric evaluations of offenders being reliable in whatever situation. This research introduces a four-step scale for establishing risk levels for violence. It combines qualitative and numeric probabilities and thus defines the dangerousness of an offender taking into account all elements of dangerousness. This scale should be used in the assessments required by Finnish criminal law legislation. It can define the probability of serious violent behaviour of a person based on the risk and protective factors that the offender manifests. The four-step scale determines the risk of violence more accurately than the three-step scale, which means that the court receives more evidence to deliberate upon, which in turn lowers the possibility of erroneous dangerousness evaluations. This study shows that the statements provided by forensic psychiatry experts have gained a huge practical significance in judges work of normatively evaluating dangerousness, which is why the opinion of the court rarely differs from that given by experts. However, while the court is deliberating on the dangerousness evaluations made by forensic psychiatrists, it should consider all the evidence and make the decision on the question of dangerousness independently on normative grounds. Any evidence provided of the dangerousness of an offender is projected to the future, which is why it can never be certain. As a precondition for determining an offender to be dangerous, the court should apply a standard of proof which requires the risk of the offender s violent behaviour to be at least high if not absolute. In other words, the court requires the dangerousness of the offender to be shown with such a high probability that the offender s dangerousness is proven; otherwise, the offender cannot be deemed as dangerous. Therefore, more extensive pro et contra argumentation is recommended to the courts when ruling on the issue of dangerousness. As a statement of dangerousness is projected to the future and as the court has extensive powers of discretion, the court has an obligation to give detailed reasons for an evaluation of dangerousness.
  • Häkkänen, Martti (Suomalainen Lakimiesyhdistys, 2017)
    The Regulation of Building Rights A Study of the Municipal Land Use Planning Function and the Preconditions for Construction from the Perspective of the Landowner's Legal Position The research task is to examine building rights in various legal contexts and, based on this, to formulate general doctrines regarding the regulatory system. Special emphasis is placed on the legal relationship between the municipality as a regulatory authority and the private landowner. The primary objective of the study is to analyse some of the fundamental legal concepts of land use planning and landownership, such as the municipal planning monopoly and building rights, from the substantive law point of view. As a historical framework, the study highlights the manner in which the landowner's right to build has gradually transitioned from the early 20th century through to the 21st century from uncontrolled activity, to a rather strictly regulated one. During the same time period, the objectives for building restrictions have expanded in a remarkable way to encompass everything from the promotion of fire safety to the management of sustainable development. Furthermore, the so-called municipal planning monopoly has gained strength in a variety of ways, particularly in the course of the past decades, as have the expropriation measures available in relation to privately owned land. The land use planning system and building rights are fundamentally connected to the economic value of land. Thus building rights are often the most interesting land userelated factor from the landowner's perspective. At the level of general doctrines, the central question is how the connection between regulation and land value should be understood. The study asserts that land use planning should not be understood as the creator of economic values, but, rather, as the facilitator or inhibitor of the materialization of land values based on demand and supply. This premise has fundamental relevance in interpreting the legal provisions governing the economic rights and obligations of landowners. The study shows that the legal formation of building rights within the land use planning and building regulation system is both materially and procedurally a phased series of events. It is also contingent upon the legal reactions of various persons, namely, upon whether they also actually exercise their rights. The central critique of the study focuses upon the legal reasoning, where the landowner's right to build in this complex system may have been in some cases primarily deduced from the concepts of a subjective right or a municipal planning monopoly. Based on a substantive law examination, the study asserts that such a deduction method is likely to produce a blurred and even distorted picture of the substantive law governing the land use planning system. Instead of concepts, the legal assessment should be focused on the manner in which the substantive provisions, on the one hand, set objectives for, and on the other hand limit the municipality's administrative discretion as the regulator of building rights in the relevant case. For example, the study argues that the answer to the question of the landowner's right to compensation due to the prohibition of construction should not be deduced from the concept of a municipal planning monopoly or from the laconism that the landowner does not have the subjective right to build. On the other hand, as the provisions of the planning and building regulation system are conceptually vague, the formation of building rights is de facto significantly dependent upon the manner in which the municipality exercises its administrative discretion in practice. For instance, the level of land policy activity with which the municipality strives to purchase or expropriate land areas prior to the land being subject to local detailed planning, inversely restricts the possibilities of the private landowner to use their land for construction purposes. The study also discusses several other general doctrines associated with building rights. One of the most fundamental ones is the idea that a building right is formulated in the land use planning system without any charges and thus the legal nature of it is gratuitous. Inversely, it may have been deduced that building rights are not gained benefits, and therefore there is a possibility to weaken or remove them by altering the local detailed plan without compensating the landowner. However, the study asserts that the formation of building rights is in fact linked to a number of payment obligations attached to landownership. This calls for a revision of the doctrine of the gratuitous nature of building rights in such a manner that the formation of building rights can be seen performed for economic consideration. The study, furthermore, argues based on a substantive law examination that the doctrine whereby the weakening or removal of building rights is seen as not being subject to any compensation should be treated with caution. In addition to the formation of building rights, the study examines general doctrines also from the point of view of building, i.e. the exercise of building rights. In this respect, the study shows that despite the strong legal effects of a local detailed plan, several of the flexible norms included in a detailed plan are finally concretized in the building permit. In addition, it is possible to diverge from the defined building rights under restricted conditions. From this point of view, building rights are elastic. On the other hand, it is also brought forth that as such, it is possible to agree upon the exercise of building rights among private parties, but only on a limited basis. Building rights may not be sold or transferred from one property to another without the participation of the municipality.
  • Kivistö, Martti (Suomalainen Lakimiesyhdistys, 2016)
    This dissertation reconstructs the evolutionary journey of the general doctrine of Finnish copyright law, starting with the preparatory stages of the Decree of 1880 on the rights of author and artist and ending with the era of digital technology and European copyright law. The focus of the study is copyright as property, i.e. as a form of ownership that gives an author exclusive control over the use of his or her work. Parallel to the gradual build-up of the legal position of the author, the emergence of various public interest goals that offset this development and their impact on law is also monitored. The study primarily operates within the framework set out by the Nordic copyright law and scholarly doctrine. In terms of methodology, the study builds on the assumption of the legal system being a layered structure wherein the elements of general doctrine, that is, theories, concepts, and principles, reside within a level of legal culture beneath the surface level that consists of statutory law, jurisprudence, and doctrinal opinions. In the opening parts of the study, the evolution of the doctrine and amendments of statutory law are explored in parallel, while also linking both narratives to their contemporary philosophical, societal, and economic surroundings. As a result of this examination, a synthesis combining the doctrinal and legislative elements accrued until the Finnish Copyright Act of 1961 came into effect is first laid out. This general outline is followed by the introduction of four fundamental principles, each of which summarizes a set of qualities that are characteristic to copyright as property. In the next chapters, further development of Nordic and Finnish law-making and general doctrines is addressed to include the second decade of the 2000s. A strict positive law approach that underscores the supremacy of the legislator for setting the balance between author s entitlements and public interest goals has become the hallmark of Nordic copyright law. A reassessment of copyright law from a national fundamental rights perspective in the early 2000s was a distinct Finnish endeavour with no direct equivalence in other Nordic countries. In the wake of the fundamental rights reform of 1995, the constitutional protection of copyright as property has been reaffirmed, but at the same time the relevance of other fundamental rights vis-à-vis the property dimension of copyright has been both accentuated and clarified.
  • Karjalainen, Katja (Suomalainen lakimiesyhdistys, 2016)
    The importance of cross-border protection of adults has begun to emerge, as the population of European countries ages rapidly while being more mobile than ever. The study focuses on the solutions and challenges of the Hague Convention on International Protection of Adults. It compares Finnish and Spanish material and private international guardianship rules Finland is a Contracting State while Spain is not and contemplates the possibility of EU measures in the field. The study answers the following questions: How does adult protection manifest materialization of private international law? What are the main weaknesses of private international law in the area of adult protection? Are private international law rules regarding adult protection efficient in legal reality? Should states create their own private international law rules, should they ratify the Hague Convention or should the European Union take a dominant role in the area? For the purpose of answering these questions the study employs the method of private international law, legal dogmatics and functional comparative law in both horizontal and vertical dimensions. The materialization of private international law in the area of adult protection is well illustrated by the fact that the interest of an adult is a paramount principle in the Convention on Protection of Adults. This is obvious not only when the Convention is looked at as a whole but also in its individual provisions. The Adult Protection Convention is a coherent, exhaustive and well-composed Convention. Nevertheless, there are certain problems in its solutions. For instance, the relativity of the Convention´s most important connecting factor, the habitual residence, and the special questions related to it in the adult protection area, are disregarded. International cooperation between contracting states is mostly voluntary and the contracting states are not obliged to hand out a certificate of protection. The complex relationship of the EU, with competence in the area of private international law, and the Hague Conference is evident in the adult protection questions. The area of freedom, security and justice, free movement of union citizens and the fundamental rights development can be considered justifications requiring the Union to act on the matter of adult protection. The study finds that it is possible to fulfill the special goals behind EU private international law by using international instruments. On the basis of the study it can be claimed that private international law rules concerning adult protection have only limited impact in legal reality. The rareness of the cases indicates that cross-border adult protection is often handled outside the scope of private international law. This does not yet imply that private international law is altogether meaningless. It is essential to take the materialized nature of adult protection into consideration when the rules are applied. The rules do not solve all the problems related to cross-border protection, they cannot be used in categorical way and they must be flexible enough in order to protect the interests of an adult.
  • Laine, Juhani (Talentum Media Oy, 2016)
    One of the most characteristic features of the Finnish Companies Act 21.7.2006/624 (hereinafter the FCA ) is the system of so-called true non-par value shares. The Finnish true non-par value system offers companies the opportunity to allot shares completely free of charge even in a directed share issue, i.e. when the pre-emptive rights of the existing shareholders are derogated. This opportunity could be risky, especially from the viewpoint of the minority shareholders, if the required majority of shareholders could in a shareholders meeting freely adopt a resolution about that kind of share issue. In practice, this would mean that a part of the share of the assets and of the power in the company of the old shareholders could be transferred to the new shareholders. However, the use of the directed share issue without payment is restricted by certain material grounds defined in the FCA. Pursuant to chapter 9 section 4 subsection 1 of the FCA, a directed share issue without payment is allowed only if there is an especially weighty reason both for the company and in regard to the interests of all shareholders in the company. The aim of this research is to formulate a meaningful interpretation of the wording of chapter 9 section 4 subsection 1 of the FCA, which could be used as a test when it must be judged, is there an especially weighty reason for the same both for the company and in regard to the interests of all shareholders in the company . My main thesis proposes that besides the formal or judicial principle of equality between shareholders, the principle of equality in its entirety, as it is known in Finnish company law, also has an economic dimension, which can be referred to as the principle of economic equality between shareholders. As such, a directed share issue without payment always means a breach against the equality of shareholders in the formal sense. However, if the company acquires enough substantial economic benefits through that kind of share issue, the real financial position and value of shareholdings of even those shareholders, who are not entitled to the shares allotted without charge, might remain untouched or even improve. The economic equality of shareholders could then be the core of the material grounds of the directed share issue without consideration. This thesis is divided into six chapters. Chapter 1 describes the objects and hypotheses of the research, its methods, the most important sources and its structure. Chapters 2 and 3 are the theoretical or general part of the research. The former contains discussion about historical and modern corporate law theories, the concept of a share in a company limited by shares and the relevance of the investment made to a company s capital against the shares. The latter deals with the principle of equality between shareholders and the different dimensions of that principle. Chapters 4 and 5 constitute the practical part of the research. The former provides detailed presentation of the directed share issue without payment as a process. The latter focuses to the interpretation of the especially weighty reason for the same both for the company and in regard to the interests of all shareholders in the company and provides examples about acceptable grounds to the directed share issue without payment. Finally, chapter 6 summarizes the theses and conclusions of the research. The main conclusions of this research are that Finnish company law contains a principle of the economic equality of shareholders as a mandatory rule, and this rule is based on the economic purpose of business companies and the material objectives of the equality principle in company law. The residual position of shareholders in a business company is still based on a contribution to the company. However, even an indirect improvement of the financial position of the company as a result of a directed share issue without payment can be considered as the equivalent of a contribution, i.e. the directed share issue without payment should not be, in effect, a share issue without payment as it would be understood in everyday language. The principle of economic equality also gives a meaningful bedrock to the interpretation of chapter 9 section 4 subsection 1 of the FCA. This principle can then be considered a distinctive feature between the material grounds of the normal directed share issue against payment and the directed share issue without payment. In the former type of directed share issue, the adequate issue price plays a central role and fulfils the objective of economic equality. In the directed share issue without payment other kinds of benefits to the company and the evaluation of economic equality against those benefits will have an independent role. A directed share issue without payment must always be in the interests of the company, the benefit it provides to the company must be substantial and of an economic nature, and it must be defendable when compared to the interests of all shareholders of the company. This latter part of the material grounds of the directed share issue without payment must be interpreted as an example of the mandatory principle of economic equality between shareholders. The essential meaning of that principle in the directed share issue without payment is that the dilution of formal shareholder rights of old shareholders must be compensated in economic sense through the enhanced financial position of the company as a whole. The evaluation of such an expected compensation must, however, be made at the time of the share issue resolution, not retrospectively.
  • Kozlowska-Rautiainen, Daria (Unigrafia, 2016)
    This dissertation provides an analysis of the scope and procedure of obtaining documents from the opponent in international commercial arbitration. The goal of this research is to provide an in-depth study of the myriad of detailed questions regarding the procedure and scope of obtaining document production which goes beyond analyzing the differences between common law and civil law practices and takes an international commercial arbitration perspective. The primary aim, however, is not to supply definite answers, but rather to present possible best practices by, for example, discussing various approaches and problematic areas of the topic and also providing the reader with awareness of different aspects that should be taken into account when dealing with document production. To reach this aim, the method of legal dogmatics is predominantly employed. The core of this research is in the interpretation and systematization of international arbitration sources, especially soft law, which provide detailed guidance regarding document production, against the background of legal principles of arbitral procedure. The challenge of conducting research regarding document production is that procedural timetables, document requests, objections and procedural orders are confidential. However, the author of this dissertation had the rare opportunity to research files of ICC cases and anonymized examples from the chosen cases serve as valuable source regarding international arbitration practice. The research is divided into five substantive chapters. In Chapter 2, the framework for document production is discussed. In Chapter 3, the procedure and requirements of the request for documents is analyzed. Here important questions are considered, such as what is the basis of a party s right to obtain documents, how to delimit a narrow category of documents, what is meant by relevance and materiality, can a party request documents relating to issues it does not have the burden of proving and also when are the documents considered as being in a party s control. In Chapter 4, the attention turns to the possible bases for an objection to a document request, such as privilege, confidentiality, data protection, unreasonable burden of production etc. Chapter 5 contains analysis of the questions connected to the actual production, including the tribunal s order to produce or dismiss a production request, the form of production and the consequences of non-compliance, i.e. adverse inferences and financial consequences. In Chapter 6, the issue of national courts assistance in obtaining documents from the opponent is addressed. The detailed results of the analysis are presented throughout this dissertation and the significance of this research is in the discussion of the specific questions. Nonetheless, on the basis of the conducted study certain key findings are also drawn. First, the research shows that many issues can be resolved on the basis of balancing principles of international commercial arbitration. Consequently, there is no need for more regulation. Arbitration needs to remain flexible. Predictability should not be achieved on the level of arbitration rules and soft law, but in specific arbitration proceedings. Second, there are important legal implications relating to production of electronic documents and participants of the arbitral process need to be aware of them. Third, arbitrators are very cautious when making decisions as to not violate possible due process or public policy requirements. In fact, only one arbitral award has been set aside due to a reason connected to a document production question. Finally, with respect to many questions regard-ing the scope and procedure of document production, one can refer to an international commercial arbitration approach.
  • Koulu, Riikka (University of Helsinki Conflict Management Institute/ Riikka Koulu, 2016)
    This study, Dispute Resolution and Technology: Revisiting the Justification of Conflict Management, belongs to the fields of procedural law, legal theory and law and technology studies. In this study the changes in dispute resolution caused by technology are evaluated. The overarching research question of this study is how does implementing technology to dispute resolution challenge the justification of law as a legitimised mode of violence? Before answering such an abstract research question it is necessary to examine 1) how we should understand technology in the context of dispute resolution, and 2) how technology changes our perception of dispute resolution. In this study, I examine different forms of private enforcement enabled by technology using this phenomenon as an example of the changes in justification caused by the implementation of modern information and communication technology (ICT) to dispute resolution. The use of ICT connects with dispute resolution at three intersections: courtroom technology, online dispute resolution (ODR), and disputes about technology, the first two of which are discussed in this study. I claim that the implementation of technology in dispute resolution creates a discrepancy in the ways in which we have justified the establishment, function and appearances of dispute resolution. This discrepancy becomes visible in private enforcement of e-commerce sites and in self-executing smart contracts based on cryptocurrency infrastructure, as no judicial control of due process can be extended to these private forms of coercion. This study consists of three parts. In the first part I examine the theoretical implications of technology in dispute resolution. Answers to the first of the preliminary questions are sought from media theory: from Marshall McLuhan s technological determinism and Raymond Williams s social construction of technology as well as from Friedrich Kittler s agency of technology. The second preliminary question is answered by discussing the converging models of dispute resolution. In this discussion, I suggest abandoning the doctrinal distinction between courtroom technology and ODR. Implementing technology brings public and private dispute resolution closer to each other in many aspects, and even to the point of convergence. In the second part I exemplify the disruptive power of ICT through private enforcement, which challenges the nation-state s monopoly on violence. Although implementation of ICT cannot be reduced to private enforcement, privatisation of coercion provides a vantage point for evaluating the multifaceted changes brought on by globalisation and the privatisation of law. I identify and discuss three different justificatory narratives that have been employed to justify dispute resolution: sovereignty, consent, and access to justice. These narratives are structures within the legal system formed by continuous operations that are shared with other societal subsystems through structural couplings. The justificatory force of each narrative is tested against the challenge of private enforcement. This analysis shows that private enforcement enabled by technology causes problems for justification, as none of the existing justificatory narratives provides an explanation of its existence. In the third part of the study I briefly examine the co-operation between different justificatory narratives. In addition to this, I address the possibilities of finding justification through the technological infrastructure itself, a conceptualisation which follows Lawrence Lessig s argument of code as law. The main claim of this doctoral dissertation is that none of the discussed justificatory narratives are able to address the challenge brought on by private enforcement. On a practical level this means that it is unclear, how a sufficient level of protection of due process can be extended to private enforcement without judicial control at the enforcement stage. This challenge is rendered even more difficult by the transnational nature of dispute resolution technology. In conclusion, private enforcement constitutes a new grey area of the legal system, balancing between legal and illegal, changing our perception of the justification of conflict management.
  • Malminen, Toni Petteri (Unigrafia, 2016)
    The study is about the intellectual origins of a form of jurisprudence legal realism. A set of novel ideas about adjudication, legal education, property rights, freedom of contract, and administration of justice, legal realism was established between 1860 and 1960 by three generations of reformist European and American lawyers, philosophers, economists, sociologists, political scientists, and anthropologists who shared the conviction that various areas of social thought were infested with scientifically unsustainable and politically regressive ideas. With their sights fixed on the rise of political progressivism and social democracy, legal realists attempted to remold law for the felt necessities of the time. Through their activities as idea brokers, political confidantes, progressive judges, and innovating ideologists, they became pivotal figures in American and Swedish turn-of-the-century legal, cultural, and political history. This is a history of the intellectual origins of their ideas. The study argues that the early critique of formalism was targeted at not only formalism, positivism, and the systematic orientation of contemporary legal science but also at the romantic historicism of Savigny and his allies. Part 1 will argue that the shift from romanticism, idealism, and conceptualism toward legal realism was mediated by a novel historical sensibility I will call critical historicism. Offered as an alternative to metaphysical conceptions of history, critical historicism approached the past from a materialist and naturalistic vantage point. It also drew on contemporary cultural anthropology to gain a less parochial perspective on law and morals. With its novel historical consciousness, marked by a debunking spirit, instrumentalist vision of law and morals, and private sense of time, critical historicism mediated a shift from nineteenth-century historicism toward twentieth-century modernism and legal realism. Part 2 discusses the secularization of legal thought from the vantage point of legal realism. Although secularization was a major historical trend in the age of legal realism and realism was a distinctly secular approach to law and morals, no specialized study on the relationship between legal realism and the secularization of legal thought has been undertaken so far, a gap in scholarship I will begin to fill, although much more certainly needs to be done. The rise of legal realism coincided with the fall of the American Protestant Establishment and the crisis of the Church of Sweden, and realism was itself a step in the transformation toward pluralism and secularism in social thought. Part 3 addresses the legal skepticism and agonism of Jhering, Holmes, and Hägerström through their notion of law as a site of social struggle. Their turn toward conflict was driven simultaneously by contemporary political, economic, and social developments, including the rise of organized labor, and various intellectual currents such as Darwinism.
  • Heikkilä, Satu (Wolf Legal Publishers, 2016)
    This study focuses on the execution of the judgments of the European Court of Human Rights (Court) in Finland and especially on its effectiveness. The Court has so far delivered 138 judgments against Finland in which one or more violations of the Convention articles were found. The aim of this thesis is to study how these judgments have been executed by the Finnish authorities. The study showed that in Finland the national execution procedure was not very bureaucratic and that it seemed to work well. Most of the procedural shortcomings identified at the European level did not exist in Finland, and the majority of the proposed new ideas for increasing the procedural effectiveness seemed to already be in use. The research revealed that the overall effectiveness of execution in Finland was therefore at a very advanced level compared to some other countries. However, in absolute terms, there still seemed to be room for some improvement, especially in the co-operation between the Committee of Ministers and the Finnish government. When looking at the payment of just satisfaction and the taking of individual measures, the study showed that their execution was fairly effective in Finland, except in a few exceptional cases. In general the domestic authorities acted quickly and effectively when executing the Court s judgments as far as the payment of just satisfaction and the taking of individual measures were concerned. In these respects the execution could be qualified as effective both in the temporal and in the material sense. However, as far as reopening was concerned, it appeared that the Supreme Court s interpretations did not always demonstrate the most effective attitude towards the execution of judgments. It could thus be deduced that there was occasionally some reluctance on the part of the Supreme Court to actively give full effect to the Convention and the Court s case-law, especially in the context of reopening. The study also revealed that although the taking of general measures in Finland was mostly sometimes even extremely effective, both in a temporal and a material sense, in some situations there were certain visible signs of reluctance to take execution measures. This manifested itself as a certain wait and see mentality, which was visible in particular in situations in which more proactive attitudes would have been required. However, most of the general measures were taken effectively in Finland. One of the best examples of the effectiveness of the Finnish execution of general measures was the execution of the ne bis in idem cases, in which the execution was done long before the first judgments against Finland were even rendered. On the other hand, the taking of general measures in the length of proceedings cases represented a group of cases in which the temporal and material effectiveness of the execution was at its lowest.
  • Syrjä, Kari-Pekka (IPR University Center, 2016)
    The doctoral dissertation under the title Protection of the Service Concept and Intellectual Property Rights The service product and unfair imitation belongs to the field of intellectual property law. The dissertation consists of three parts and seven chapters. Firstly, the study focuses on whether the supplementary protection of achievement in relation to a service concept, in particular, a service product granted on the basis of article 1.1 under the Finnish Unfair Business Practices Act (SopMenL 1§ 1 mom.), can be justified and legitimized. Secondly, the study systemizes the general and specific criteria necessary for the supplementary protection of achievement under special circumstances and in a situation beyond IPR laws as well as provides an interpretation of these criteria. Thirdly, under the assumption that the respective law can be applied, the study investigates the substance and the form of protection arising from it in this context. The methods applied are the traditional approach of the normative theory of law (legal dogmatics) together with the method of comparative law, as demonstrated in a comparison to the respective laws of Germany and Sweden. The first part is the introduction to the topic. The second part includes Chapters 2 through 6. In Chapter 2 the legal framework of a service concept is introduced. This includes among other things how a service concept is positioned in legal dogmatics and in which way the legal right arising from the supplementary protection of achievement pursuant to article 1.1 under Finnish Unfair Business Practices Act (SopMenL 1§ 1 mom.) can be considered in legal doctrine de lege lata. Chapter 3 deals with the international legislative framework for unfair competition law, especially its general clause. The purpose of Chapter 4 is to deal with the historical development of the general clause [i.e. article 1.1 under the Finnish Unfair Business Practices Act (SopMenL 1§ 1 mom.] by drawing a comparison with the respective law in Germany (UWG). The specific emphasis is to examine how ratio legis and the secured interests of this law have changed over the course of social progress and what the impact has been in the context of the interpretation of law, especially in the context of the general clause. In Chapter 5 the general and specific criteria necessary for the supplementary protection of achievement under the general clause are systematized and interpreted for the application of those criteria in Chapter 6 in respect of the service concept. The third part comprises Chapter 7, which concludes the main remarks. Based on my research, the following can be concluded: Firstly, the study argues that a service concept may be protected under IPRs, but only in part. The supplementary protection of achievement according to Finnish Unfair Business Practices Act (Art. 1.1) beyond IPRs does not confer on the proprietor of a service concept an exclusive and absolute right, but only to the extent of relative intellectual property position (Art und Weise). Secondly, the comparison made between Finnish and German laws and their historical development proves that despite the almost identical ratio legis at the times of the enactment of the law in Germany and the law in Finland, the secured interests of the law diversified in the 1970s as the ideology of consumer protection penetrated into the Nordic countries, especially into Finland. At the same time, the German courts retained their attitude unchanged towards the secured interests. The UWG 2004 reform finally codified Schutzzwecktrias (i.e. the various secured interests for protection). Thirdly, although the general criteria regarding the application of the general clause are mostly parallel, the statutory law de lege lata differs [e.g. the Finnish Unfair Business Practices Act ( Art. 1.1) does not include any special criteria for application in case of unfair imitation] from the respective laws in Germany (UWG) and (MFL) in Sweden. Finally, the study argues that the supplementary protection of achievement in relation to a service concept, in particular a service product granted on the basis of Article 1.1 under the Finnish Unfair Business Practices Act against unfair imitation, is not excluded in a case, provided that (i) any of the respective IPRs cannot be applied to the case, (ii) the general and special criteria for protection are present, and (iii) there are special circumstances available such as the risk of distorted competition and market failure.
  • Nissel, Tzvika (Helsingin yliopisto, 2016)
    State responsibility is the doctrine that regulates international enforcement actions. Among international lawyers, there is a shared sense of mystery about State responsibility. While the doctrine clearly guarantees the enforceability of international law, its practice consistently languishes from a lack of international policemen. History is one lens through which to view this paradox. In this study, I describe the three most influential efforts to establish a legal standard for international enforcement actions: U.S. diplomatic practice, German legal theory and U.N. codification. In the late nineteenth century, lawyers in the U.S. State Department turned to international tribunals to redress alien injuries. These lawyers relied on international law to justify their legal intervention. Latin Americans, who were frequently the respondents of such claims, disputed the relevance of international law to its treatment of aliens; to them, alien protection was essentially a domestic affair. However, by the twentieth century, a U.S. practice of arbitration had established that States could be held responsible for breaching their international duties to protect aliens. The resulting awards were professional but haphazard. States were ordered to pay reparations for alien injuries, but why and how much they had to pay remained largely unarticulated. The first systematic treatment of State responsibility surfaced in late-nineteenth century Germany. These early writings were extrapolations from domestic principles of law rather than inductions of international awards. German lawyers viewed the U.S. practice of international arbitration as ad hoc settlements of private disputes rather than as the adjudication of public disputes. Thus, the German approach to State responsibility was not restricted to the field of alien protection in particular; it provide for the preconditions of international liability in general. When the U.N. undertook to codify the field, it chose to base its efforts on German theory rather than on the U.S. practice. This strategy divided State responsibility into general and specific parts. Generally, enforcement actions were subject to the U.N. doctrine. Exceptionally, a specific practice (e.g., alien protection) was permitted to continue as lex specialis. Contrary to many commentators, I see no crisis in this result. No singular doctrine has ever encapsulated the practice of international enforcement. Since the 1870s, international lawyers have employed State responsibility as a pliable concept to suit particular ends. By providing these perspectives, I hope to illustrate how three groups of lawyers practitioners, theorists and doctrinalists have been able to cope with the enduring mystery of State responsibility.
  • Saarinen, Sirkka (Edita Publishing Oy, 2016)
    OSAKEYHTIÖN JAKAMINEN TULOVEROTUKSESSA (TIIVISTELMÄ) Osakeyhtiön jakamisella tarkoitetaan normaalisti sellaista yritysrakenteen hajauttamista, jossa osakeyhtiön liiketoiminta tai liiketoimintoja siirretään yhdelle tai useammalle vastaanottavalle osakeyhtiölle, ja näiden yhtiöiden osakkeet siirtyvät vastaavasti jaettavan yhtiön tai sen omistustahon käsiin. Tässä tutkimuksessa painopistealueena ovat EU-oikeudellisen taustan omaavat yritysjärjestelymallit jakautuminen ja liiketoimintasiirto. Näitä yritysjärjestelymalleja verrataan tutkimuksessa myös kansallisen lainsäädäntötaustan omaaviin osakeyhtiön jakamisen tapoihin. Tutkimus painottuu tuloverotukseen, ja siinä on käytetty oikeusdogmaattista, kriittiseen arviointiin perustuvaa sekä veropoliittista lähestymistapaa. Osakeyhtiön jakamisella on monia liittymäkohtia yhtiöoikeudelliseen sääntelyyn. Yhtiöoikeutta tarkasteltaessa on otettu huomioon myös tähän alaan vaikuttavat EU-oikeuden yleisen järjestelmätason ominaispiirteet sekä erityisesti direktiivimuotoisen lainsäädäntöinstrumentin vaikutukset. Vero-oikeudellista järjestelmää tarkasteltaessa EU-oikeudella on samalla tavoin merkitystä, koska esimerkiksi osakeyhtiön kansainvälisiä jakamisia koskevat verotuksen sääntelymallit pohjautuvat EU-direktiiviin. Tämä direktiivi on toiminut lainsäädännöllisenä mallina myös kansallisia jakamisia koskevaa sääntelyä toteutettaessa, jolloin direktiivi voi ulottaa tulkintaa koskevia vaikutuksia myös tiettyihin Suomen sisäisiin, kansallisesti toteutettaviin toimintamalleihin. Tutkimuksessa on oikeudellista järjestelmää tutkittaessa ja arvioitaessa selvitetty myös EU:n integraatioprosessin yleistä merkitystä ja direktiivien vaikutustapoja sekä EU-oikeuden tulkintaongelmia erityisesti suomalaisen oikeustradition näkökulmasta. Tutkimuksessa pyritään selvittämään sitä, miten hyvän verojärjestelmän ominaisuudet (esimerkiksi neutraalisuus, maksukykyisyys, verovelvollisten yhdenmukainen kohtelu sekä oikeusvarmuus) ovat toteutuneet osakeyhtiön jakamista koskevan sääntelyn yhteydessä. Osakeyhtiön jakamisia toteutettaessa ilmenee erilaisia osakeyhtiölainsäädännön ja verolainsäädännön välisiä yhteensopimattomuustilanteita, ja niitä pyritään selvittämään ja arvioimaan myös veropoliittiselta kannalta. Yhtenä keskeisenä tutkimusongelmana on se, millaisia tulkintaongelmia on osakeyhtiön ja sen osakkeenomistajan verotuksessa osakeyhtiön jakamista koskevia verosäännöksiä sovellettaessa, ja millaisia ovat tulkintaongelmien ratkaisut käytännössä. Tutkimus painottuu kansallisiin osakeyhtiön jakamisiin, mutta siihen on lisäksi sisällytetty myös kansainvälistä vero-oikeutta koskeva lyhyehkö osa. Kansainvälisillä kysymyksillä on olennainen liittymä tutkimusaiheeseen, ja niiden avulla voidaan edistää myös EU-oikeuden vaikutusten selvittämistä kansallisen oikeusjärjestelmän tasolla. Osakeyhtiön jakamista koskeva keskeinen sääntely on luonteeltaan veronhuojennusperusteista, ja tätä taustaa vasten tutkimuksessa tarkastellaan myös veron kiertämistä ja veron välttämistä koskevia ilmiöitä sekä sitä, millaisia ratkaisutapoja veronkierto-ongelmiin on olemassa. Tutkimuksessa on selvitetty myös EU-oikeudellista oikeuksien väärinkäyttöä koskevaa ilmiötä ja sen merkitystä Suomen oikeusjärjestelmän näkökulmasta. Tutkimuksessa on tarkasteltu toisaalta lainsäädännön tasoa ja toisaalta lain soveltamisen tasoa. Esimerkiksi yhtiö- ja verolainsäädännön välisiä yhteensovittamisongelmia ilmenee käytännössä, ja ne synnyttävät jonkin verran ongelmia. Lisäksi etenkin kansainvälisen vero-oikeuden alalla on havaittavissa joitakin tarpeita lainsäädännön kehittämiseen. Suomen lainsäätäjä näyttää yleisesti onnistuneen melko hyvin yritysjärjestelydirektiivin implementoinnissa. Verolain soveltamiskäytännössä on kuitenkin ilmennyt joitakin ongelmia. Yritysjärjestelyiden monitahoinen luonne, niitä koskevan sääntelyn monimutkaisuus sekä etenkin kansainvälisissä yhteyksissä ilmenevä sääntelyn monikerroksisuus voivat toisinaan synnyttää käytännössä ongelmatilanteita, ja tältä pohjalta esimerkiksi ylimmän oikeusasteen linjanvetoihin ei voida kaikissa tapauksissa suhtautua kritiikittömästi. ASIASANAT: osakeyhtiö, yritysjärjestely, elinkeinoverotus, EU-oikeus, yhtiöoikeus
  • Kari, Markus (Into Kustannus Oy, 2016)
    Why did the norms governing the Finnish financial markets changed fundamentally over the 1980 s? To answer, this study applies the methodological framework of contemporary legal history: legal change is being placed to its relevant societal contexts. The 1980 s is a central decade in the transformation of the post-war Finnish society known as the Second republic to the Third republic, integrated to Europe. Also the nationalistic Finnish financial system characterized by regulation of interest rates, foreign exchange controls, and bank-centrality was transformed by creating new financial markets. The economic decision makers began to see Finland in the reference group of industrialized western or Nordic nations. The first perspective to the legal change is deregulation: dismantling the controls over interest rates and foreign exchange. Deregulation was in essence a long line of minor decisions taken by Bank of Finland. As a result, the law regarding finance was on a change. The second perspective to the change is reregulation: the birth of laws governing new markets and reformation of existing financial market laws. Such process was led by the senior officials of ministry of justice and ministry of finance. Reregulation was needed to create new financial markets. Such development was accepted by the main stream politicians. The process of change can be divided into three phases. The prime operator during the first period (end of the 1970 s around 1985) was Bank of Finland. Based on the analysis done by its economists, the central bank allowed more room for the private actors in the market. There is no evidence suggesting that Bank of Finland communicated its market creating plans to other economic policy makers or the general public. During the second period, (about 1986 87) two consecutive majority governments gave the mandate of legislating the stock markets and the option markets. Bank of Finland continued its deregulation. During the third period (from around 1988), the deregulation was finalized by Bank of Finland. A new round of legislation was passed, following closely the example of the European Communities. The third period can be labeled pre-integration, as Europeanization of the market took place before any political decisions to join the accelerating integration were taken. The three periods of legal change reflect pragmatic reactions to the 1980´s grand political changes in Finland and in Europe. The economic and political force of the Soviet Union was diminishing and European integration was accelerating. By the end of the decade a hubris of European integration existed in the Finnish society. A change parallel to the change in the financial markets can be seen within the human rights paradigm: Europeanization and more international perspective caused fundamental changes.