Faculty of Law

 

Recent Submissions

  • 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.
  • 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.
  • Soirila, Ukri (Helsingin yliopisto, 2018)
    The 1990s and the first years of the twenty-first century witnessed the sporadic emergence of a new vision of global law – one based on the human individual and humanity at large. Although it has taken many different forms, this vision has been uniform in its push to radically alter how we understand international law by seeking to posit the human as the primary subject of the international legal order and humanity as its main source of legitimacy. The vision is spelled out rather explicitly in some academic works, hinted at in others, and pops up here and there in international legal practice. Together, the thesis calls these instances “the law of humanity project”. The thesis provides an immanent critique of that project. In particular, it focuses on the outcomes of the project, asking how might the circulation of the humanity language, and in particular the claim that we are or should be moving towards law of humanity, produce and sustain such relations of power which are inimical to the aims of the project? In so doing, the thesis proceeds through three steps. Part I situates the emergence of the law of humanity project in a specific historical and theoretical context in the post-Cold War period and analyses its different academic manifestations. The central finding is that the project seeks to achieve its goals by increasing the importance and circulation of certain key concepts which are assumed to change the way we perceive international law. Three such concepts are identified, namely human rights, human security and human dignity. Part II challenges the underlying assumption of the law of humanity project that the increased relevance of the aforementioned concepts would necessarily change international law to the direction desired by the proponents of the project. Addressing each of the concepts individually, the Part argues that due to their indeterminacy, all of the concepts can be used for myriad purposes, some of which can be entirely opposite to the aims of the law of humanity theorists. Part III shifts gear and focuses on how humanity rhetoric has actually been used in action, and with what outcomes. The Part makes two key arguments for the entire thesis. The first is that although the humanity rhetoric has been impressive, it is not clear that it would have increased the well-being of individuals or empowered them. Where the rhetoric has clearly made an impact, however, is in disciplining the state and in allowing deep-penetrating interventions into what goes on within states and how they are organized. The second key argument is that the law of humanity project may operate like an ideology, obscuring how the humanity rhetoric can be used to produce and sustain relations of power by presenting all uses of rhetoric as further steps in a rather linear story culminating in the emergence of “law of humanity”. In so doing, it may enable such relations of power which are inimical to the main ideas of the law of humanity project and which are difficult to reconcile with the humanity rhetoric. This is so in particular because of forms of power/knowledge which may greatly benefit from the law of humanity project disciplining the state.
  • Männistö, Eero (Helsingin Kamari Oy, 2018)
    The title of this doctoral dissertation is the acceptability of retroactive tax legislation. Acceptability is examined particularly in the context of EU law, human rights and fundamental rights. The main question concerns whether the Constitution of Finland should expressly prohibit retroactive tax legislation. The current Constitution includes no such prohibition. The research analyses retroactive tax legislation particularly in the context of harmonised consumption taxation, where the passing-on doctrine is very important. Retroactive tax legislation can cause various disturbances to this doctrine in consumption tax situations. Similar problems can also arise in direct taxation, and therefore the dissertation also discusses direct taxation issues. The methodology of the dissertation is legal dogmatic and partly related to taxation policy. The dissertation includes a theoretical framework for analysing the research questions, and it seeks to clarify the current situation in Finland regarding the acceptability of retroactive tax legislation. It also examines the situations and conditions in which the use of retroactive tax legislation might be acceptable in Finland. The research includes a legal comparison between conditions in Finland, Sweden and Germany. The most significant research finding of the dissertation is that there may be flaws in the current situation in Finland regarding the acceptability of retroactive tax legislation. These flaws are mainly due to the lack of any express prohibition of retroactive tax legislation in the Finnish Constitution. This lack of protection can cause serious difficulties for taxpayers, because they can never be certain that they will not be taxed retroactively. The lack of protection is also evident from an EU law perspective, because protection based on the CJEU case law is rather limited. This also applies to the case law of the European Court of Human Rights, where in only a few cases has the court accepted that retroactive tax legislation infringes the protection of property doctrine. The Charter of Fundamental Rights of the European Union may also only bring more protection in the future, because the role of the Charter is only beginning to develop in the field of taxation. The dissertation also reveals that the level of protection in domestic situations may not always be sufficient in Finland. Under the Finnish system, the parliamentary Committee for Constitutional Law monitors retroactive tax legislation in advance and the courts then exercise a supervisory role after the legislation has been enacted. This approach may not always be enough to protect the final consumer or taxpayer. This dissertation finds that there may be good reasons to consider introducing an express prohibition of retroactive tax legislation in the Constitution of Finland. This consideration should be done comprehensively within the theoretical framework of the dissertation, meaning that any such prohibition should allow the legislator to take active measures, for example against tax avoidance, even retroactively. The main issue nevertheless remains one of finding the right balance between the rights of taxpayers and the public interest.
  • Jansson, Julia (Unigrafia, 2018)
    Most past definitions of terrorism have included a political element. What would terrorist acts be without the political/ideological element? Mass killings, hijackings, bombings... 'Common' crimes, combined with often uncommonly destructive elements. Regardless of this inherent political element, the last decades have seen a global trend of depoliticising terrorism for the purpose of international collaboration. My thesis describes and discusses this trend and the reasons behind it. Following a thorough analysis of international conventions and treaties as well as bilateral extradition treaties from the 1800s until the early 2000s, it suggests that terrorism has been depoliticised due to the existence of the so-called political offence exception to extradition that emerged in extradition treaties in 1834. Because of the exemption, a widely accepted spawn of the revolutionary era, political offenders, in some cases including terrorists, were for a long time protected from extradition. The aim of the depoliticisation formula was to protect ‘legitimate’ political offenders, but exclude terrorists from the protection of the political offence exemption. Alongside the depoliticisation of terrorism, the political offence exemption was growingly limited since the emergence of the modern terrorist threat in the 1970s. In addition to the depoliticisation of terrorism, we have witnessed a contradicting trend of what I call repoliticisation, where special laws and tribunals have been set to deal with the terrorist threat. The new laws, contrary to the depoliticisation strategy, underline the political nature of terrorism by criminalising acts such as the glorification of terrorism. My thesis examines these contrasting trends and takes a critical look at the various implications of both the depoliticisation of terrorism and underlining the political element of it. One of these implications is the decreasing global protection for non-violent political offenders.
  • Paloniitty, Tiina (Juvenes Print Oy, 2018)
    The EU has taken a multi-faceted approach in addressing agricultural runoff, specifically with regards to the eutrophication of the Baltic Sea. The approaches are studied in this thesis resulting in the outcome that when the deliberate regulative attempts fail, the issue in all its complexity is left for the scientists to untangle. The work abides by Martin and Craig’s epistemology of environmental law, and consists of policy analysis, doctrinal research, and jurisprudential examination. When required, the administrative-legal system of Finland is used as an example. The first three instruments examined are the Common Agricultural Policy (the erratic regulator), the Nitrates Directive (the naïve regulator) and the EU Strategy for the Baltic Sea Region (the candid regulator). The closest examination is given to the ambitious regulator who takes the demands for adaptive and integrated water management seriously and issues the Water Framework Directive, which was vested with new normative clout by the CJEU in 2015 (the Weser ruling). The suggested reading of the post-Weserian Directive distinguishes between its internal and external influence, the latter extending to all undertakings with water impacts. The assessment of forbidden derogation partly draws on meticulous scientific analysis that encompasses axiological considerations. Thus in the absence of a determinate and efficient regulator the decision-making territory is conquered by the scientists, whose considerations shirk judicial review—even in the example country where the scope of review is otherwise broad and scientific expertise readily available. The example emphasizes the significance for the legal to properly understand the manner in which scientific knowledge of the environment is produced. When it comes to the predominant paradigm of environmental studies, adaptive management, what is legally speaking normative may have already been decided upon when the legal begins to examine the ‘facts‘ and ’norms’ of the matter. The thesis analyses the relevance and consequences of adaptive management’s socio-ecological aspects from the viewpoint of the regulator / the adjudicator after which the examination continues to the legal sphere, scrutinizing the requirements the scientific reality presents for the legal. The conclusion is that rational natural resources governance only begins when administrative-legal systems are considered contingent on the scientific examination: successful regulation is to be anticipated only when the legal acknowledges the socio-ecological management of complex systems as it is and understands itself as a part of the adaptive cycles, not as a separate decision-making entity.
  • Gurkov, Aleksandr (Unigrafia, 2017)
    The dissertation is focused on the analysis of Russian regulations on arbitral awards deciding over relationships that are subject to competition law rules. This thesis investigates whether such relationships are arbitrable in Russia; in case these disputes can be resolved in arbitration, are there any additional requirements for arbitrators in such cases to secure state competition law policies; and finally, how can a public authority verify that antitrust policies were upheld in an arbitral award? To answer these questions, the research uses a doctrinal methodology, analyzing norms of Russian law. To support the study and make the answers more concrete, judicial practices of Russian courts are analyzed. The structure of this dissertation reflects the study’s set goals. After an introduction to the research, Chapter 2 provides a brief overview of some of the aspects of the Russian legal system that are relevant for the further study. Chapter 3 addresses arbitrability of disputes in question in Russia. Chapters 4, 5, and 6 deal with different aspects of public policy concept application in arbitration in Russia in the targeted group of cases. In particular, Chapter 4 focuses on the general characteristics of the public policy concept of arbitration in Russia, while Chapter 5 tackles more specifically a correlation between a prospective violation of competition law rules and public policy infringement in Russia. Finally, Chapter 6 addresses the extent of court review of arbitral awards and the possibility of such review in awards that could potentially violate Russian antitrust law provisions. Correspondingly, the study provides the following conclusions: 1) disputes involving competition law regulations are arbitrable in Russia, except for those disputes originating from public procurement contracts; 2) violation of Russian competition law can be considered as a violation of Russian public policy, if such violation evidently breaches the prohibition to engage in economic activity aimed at monopolisation and unfair competition; 3) Russian law does not allow substantive review of arbitral awards, even in cases where public policy could be at stake; at the same time, courts do not always follow this rule and sometimes take a closer look at the relations between parties and re-evaluate findings of arbitrators on matters of law.
  • Vasara-Aaltonen, Marianne (Helsingin yliopisto, 2017)
    This research examines the studies of Swedish jurists abroad from ca. 1630 to 1800. The focus is on students of the Academy of Turku with the help of its online database of matriculation records, which also contains biographical information on the students. Thus it has been possible to search among the students for those future jurists who had also studied at foreign universities. The research period covers a good century-and-a-half during which Sweden underwent many profound political and societal changes. The study journeys of the jurists are put into context with these developments. The main research questions are: 1) When were studies abroad most popular and what changes occurred over the period? 2) At which foreign universities did these students enrol? 3) What kind of careers did these men have? 4) Why did aspiring Swedish jurists travel abroad to study? 5) Why did the jurists’ studies abroad change over time? 6) What do these developments reveal about the Swedish legal profession? The study shows that the most popular foreign universities among these Swedish students were the Dutch University of Leiden and the German universities of Rostock, Jena, Halle, and Greifswald. Travels abroad were most common around the middle of the seventeenth century but slowly began to decline in the second half of the century. By the middle of the eighteenth century, these journeys had almost completely stopped. Over half of the students going to Leiden were of noble origin, whereas students at the German universities came from a wider variety of backgrounds. Furthermore, the study illustrates how future jurists did not necessarily study (only) law, but could opt for a variety of subjects. This was especially the case for the noble students. Most of the students held positions within the judiciary during their careers. Especially at the beginning of the research period these careers were often combined with other posts in the civil administration. During the seventeenth century many of the students, especially those who had studied in Leiden, ended up working at courts of appeal, but this was no longer the case after the turn of the eighteenth century. Careers in town judiciaries could be found carrying on longer into the eighteenth century. The rush of Swedish students to foreign universities in the first half of the seventeenth century was linked to the growing administration and especially the founding of the courts of appeal. A great need arose for trained officials, but domestic universities could not yet fulfil that need. The role of the higher nobility was crucial for the development of jurists’ studies abroad in the seventeenth century. Tradition, confessional questions, and political relations affected the choice of university for those travelling abroad. Especially around the middle of the seventeenth century, networks and patronage also played an important part in these study journeys. The turn in the popularity of studies abroad in the seventeenth century is connected to the shift in the position of the higher nobility. The lessening of jurists’ studies abroad in the eighteenth century can be seen in context with paths of advancement within the Swedish administration becoming more regulated and the legal sphere becoming more national. These circumstances made studies abroad less appealing than they had been during the previous century. The decrease was also part of a general decrease in European student migration.
  • Erkkilä, Ville (Helsingin yliopisto, 2017)
    This dissertation is a history of the ideas of German legal historian Franz Wieacker. The broader aim of this study is to analyze the intellectual context in which Wieacker’s texts were situated, thus the German legal scientific discourse from 1933 to 1968. In this study Franz Wieacker’s texts are analyzed in the light of his correspondence and the broader social historical change of the twentieth century Germany. The study concentrates on the intertwinement of his scientific works with the contemporary society, as well as on the development of his personal perception of continuity and meaning in history. The theoretical framework of the dissertation derives from conceptual history and hermeneutics of historiography. As objects of analyze I have picked two concepts which Franz Wieacker often utilized in illuminating European legal history: Rechtsbewusstsein (legal consciousness) and Rechtsgewissen (legal conscience). These concepts were the key terms in his attempt to analyze the themes of justice and the rule of law in European history. In concrete terms, the change in the meanings of Wieacker’s concepts Rechtsgewissen and Rechtsbewusstsein is being tracked in reference to paradigmatic changes in continental legal science and social historical development of Germany. The analysis conducted in this dissertation proves Franz Wieacker’s continuous and firm belief in the necessity of the distinct social position of legal scholars in society. The prestigious status of the ‘juridical estate’ was a premise for social justice. Furthermore, Wieacker’s view on society was shaped by his unconditional trust on the values concerning learnedness and higher education. This preconception was due to his upbringing and attachment to the values of Weimar Republic Bildungsbürgertum, ‘learned bourgeoisie’. As a result, in the later scientific production of Franz Wieacker, the themes of ‘communality’ as the context of legal scholarship and ‘elastic creativity’ as the aim of legal science were significantly important. Wieacker explained the diverse social breaches and recent crises of Germany through a vast narrative of European legal culture, which he constructed with the means of concepts. Despite the radical changes brought about the National-Socialist seizure of power of 1933 and the end of the Second World War in 1945, the core of his scholarly identity remained the same from Weimar to the Federal Republic of Germany.
  • Mäihäniemi, Beata (University of Helsinki, 2017)
    The role of information intermediaries has grown significantly in recent years, due to an increased importance of information as an industry input. It seems that posting any information, independently of using a dominant online platform, may be detrimental to one’s business. Such companies can be considered as unavoidable trading partners, which may enable them to manipulate information and possibly exclude or damage effective competition. These intermediaries may block access to, or bias, the quality of information. The main reason why competition law would be interested in regulating the access to information is that where information is controlled by one network-based dominant undertaking — significant competition problems may occur. Firstly, access to the market may be prevented due to indirect network effects, such as consumers preferring a particular network because of its good reputation or everybody else using it and due to the fact that some networks may give preference to its own complementary services. Secondly, companies that control information may also affect the quality of information provided and this may, in turn, affect consumer welfare. Finally, in some cases, where information is created by means of complicated and costly research, but where it is unprotected by an intellectual property right, the danger of free riding may arise. Therefore, competition law should be extremely careful in granting access to information that constitutes a basis for some business models (e.g. trade secrets), even where such information belongs to a dominant company. One of the findings of this study is that special responsibility should not be extended outside competition law to include general fairness considerations in order to allow access to information. Special responsibility should still, as it has been perceived by conventional competition analysis, only be imposed where the company in question is dominant and where it behaves anticompetitively. On the contrary, business justifications could be increasingly used by the dominant company to show that the dominant undertaking competed on merits and did not resort to anticompetitive practices. Abuse of dominance that occurs in digital markets does not always fit into criteria that were crafted for physical inputs, however this does not denote that the conventional way of conducting an analysis of an abuse of dominance should undergo a total makeover. The Commission should not therefore aim at long-term changes; instead, it should acknowledge how characteristics of digital markets affect analysis of competition law. Law on abuse, as applied to situations where access to information is refused or granted on discriminatory terms, should accommodate rapid technological change; preserve incentives to invest and innovate; focus on consumer harm in the analysis of abuse of dominance and grant a larger role to objective (business) justifications provided by dominant companies. The above-mentioned theoretical findings are applied to a case study on one of the most recognised online platforms that is Google Search investigations in the EU which have recently proceeded to the Commission’s decision, however one that is not yet publically available. The initial outcome of the investigations has been as follows: Google has been fined €2.42 billion for abusing its dominant position as a search engine by granting illegal advantage to another of its products - own comparison shopping service. The thesis analyses two of the practices Google has been initially involved in namely, search bias and restrictions on portability of online search advertising campaigns. These are analysed in detail as to whether they are in fact anticompetitive and can be addressed with a valid theory of harm. The thesis in question confirms the Commission’s findings on Google’s dominance, however it offers alternative arguments for the appropriate theory of harm as to the abusive practice of search bias.
  • Möller, Tia (Suomalainen Lakimiesyhdistys, 2017)
    The Europeanization of private international law is a well-recognized fact. The European Union (EU) has adopted a number of legal instruments in the field of private international law (PIL) in order to create a European area of justice, the objective defined by the EU Treaties. In addition to the Treaty provisions and the EU legislature there is also a third element influencing the Europeanization of PIL: multiannual programmes for the Area of Freedom, Security and Justice. These multiannual programmes have been adopted successively since 1998 (Vienna Action Plan 1998, Tampere Conclusions 1999, Hague Programme 2004, Stockholm Programme 2009, Strategic Guidelines 2014), and they have been adopted by the European Council, and thus by the Member States together with the Commission, and since the Lisbon Treaty, with the president of the European Council. This study analyses the impact of the multiannual programmes in the EU legislative process in the field of PIL and thus, their impact for the Europeanization of PIL. This is discussed from the various angles: the programmes’ relationship to the relevant EU Treaty provisions, concrete guidelines in the programmes for PIL (thus defining the vision of EU PIL) and the programmes’ influence on the EU legislative process. The latter aspect is analysed by examining all the EU PIL legislative acts adopted thus far. Moreover, possible future changes to the content and adoption procedure of multiannual programmes and their impact on future Europeanization of PIL are discussed. The study proposes that the vision of a European area of justice created by the multiannual programmes has played a central role not only in defining the direction of the Europeanization of PIL but also in its actual Europeanization, i.e. in the adoption of EU PIL instruments. In particular, in the area of family law, which varies widely between different legal traditions and legal cultures, the vision of a European area of justice has fostered a common understanding of the legislative work required, thereby furthering the Europeanization of PIL. The multiannual programmes have determined, prior to the formal EU legislative procedure, the PIL issues to be addressed by various legislative acts and also defined the general principles on which PIL cooperation should be based in the EU. The vision has brought real value to the EU Treaty provisions. However, the impact has been limited due to the general nature of the programmes and their limited possibilities in influencing the law on its different aspects. The study is based on the paradigms of legal dogmatics, i.e. legal positivism and the theory of the sources of law. The study uses methods from law and politics and legal history. The impacts of the programmes for the Europeanization of PIL are reflected on different aspects of law: legal order, judicial practices, the legal system and legal culture.

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