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  • Mutanen, Anu (2015)
    This dissertation analyses state sovereignty from the point of view of national constitutions in the context of the constitutional pluralism of the EU. The research questions of the study are threefold. 1. What changes has the European Union caused in the conceptions and theories of state sovereignty? 2. How do the constitutions of the EU Member States regulate sovereignty? 3. How have these sovereignty provisions been interpreted in Finland, Germany, Denmark, Sweden, and Estonia in a selection of EU-related national treaty processes? These questions are examined with a combination of theoretical and genealogical methods as well as contextual legal dogmatics and legal comparison. The dissertation demonstrates that the EU, and European constitutionalism in general, has profoundly affected state sovereignty as a matter of national constitutional law. The concept of state sovereignty has met with increasing criticism. Particularly the idea of absolute sovereignty has faced its demise in the EU Member States. Nevertheless, the general scholarly take within constitutional law still holds on to the concept, but provides it with increasingly relative content expressed in different theories of delegated or shared sovereignty. The texts of the EU Member State constitutions, however, still hold on to rather absolute formulations of state sovereignty and are still silent on the EU despite its far-reaching effects on sovereignty. As a result the constitutional provisions on sovereignty have been subject to dynamic interpretation in order to enable the domestic ratification of the EU treaties and their amendments without jeopardising the EU s development. Germany belongs to the group of states whose constitutions do not contain a sovereignty clause and which have well-established empowerment clauses. The interpretations provided by the German Constitutional Court in regard to the EU treaties have at times been very EU critical, and influential: Sweden, for example, has clearly developed its EU regulation through the model provided by Germany. Sweden does not mention state sovereignty in its Constitutions, and its constitutional interpretation has been integration friendly. Denmark has an EU-minimalist Constitution, the rigidity and the strong built-in referendum institution of which has enabled it to negotiate opt-outs to the EU treaties, allowing it to escape certain significant consequences for sovereignty. Estonia is situated at the apex of sovereignty protectionist constitutions, but on the other hand its Supreme Court has adopted a very pro-EU manner of interpretation. Finland used to have one of the most sovereignty-oriented constitutions in the EU. However, during the country s EU membership the constitutional interpretation has shifted from a rigid and formalistic approach to state sovereignty towards emphasising and easing Finland s EU activities and other international cooperation. This development was codified in 2012 in the Constitution of Finland in the form of an EU clause and empowerment clauses. When considering both the textual level of sovereignty regulation and its interpretation in connection to the national EU treaty ratification procedures, the current Finnish constitutional understanding of sovereignty is more integration friendly than that of Germany, Denmark, Sweden, or Estonia. This dissertation argues in favour of a pluralistic understanding of state sovereignty for resolution of the problems related to sovereignty within the EU. In the new pluralistic understanding of state sovereignty, national conceptions of sovereignty are recognised in that they also contain within themselves the possibilities for international cooperation and EU membership, with the accompanying transfer of powers and widening of competences, in order to engender truly pluralistic interaction between the EU and its Member States.
  • Walkila, Sonya (2015)
    The grounds for debate on fundamental rights in the European Union are currently more fruitful than ever. Following the entry into force of the Lisbon Treaty, not only did the Union avail itself with its own Bill of Rights , i.e., the Charter of Fundamental Rights of the European Union, but is also preparing for its accession to the European Convention on Human Rights. By the same token, the Charter was elevated to the same level as other primary EU law. The frequent horizontal effect of fundamental rights in recent case law of the Court of Justice of the European Union is an indication of a stronger presence and the increased significance of fundamental rights in the Union s legal order at the time when the boundaries between the public and private spheres are increasingly blurred. The Court of Justice strives to interpret and apply the law in a way which contributes to a build-up of a coherent case law and conforms to fundamental rights as closely as possible. The immediate source of the jeopardising act or degree of the incurred effects should not prove decisive. Rather, the horizontal effect of fundamental rights contributes to the primacy, unity and effectiveness of European Union law . This study suggests it is feasible to consider the horizontal effect of fundamental rights as they relate to situations where the legal positions of private parties are transformed in the Hohfeldian sense pursuant to the application of those rights by a court in a legal dispute before it. The incurring legal position depends in turn on the degree of enforceability of the fundamental right norm in question. Because of the semantic and structural openness of fundamental right norms they often necessitate the deduction of a more concrete normative content. This concretization of abstract norms makes adjudicating on the basis of fundamental rights a delicate matter, since it gives great power to the courts. Where this power is extended to the area which typically falls in the sphere of private law, it grows even stronger. Besides powerfully serving to enhance the inner coherence and consistency of Union law and offering feasible solutions to legal problems, the horizontal application of fundamental rights implies a move towards a strengthened constitutional phase of the integration process. Arguments on fundamental rights entail much more than just formal or dogmatic disputes over the scope of application of an act of EU law. They touch on fundamental questions relating to the functioning of the Union and its constitutional nature which pertains to the entire legal order of the EU.
  • Pohjanpalo, Maria (Unigrafia, 2015)
    This research investigates the interrelation of international investments and the environment. It is a study on fragmentation and how to potentially overcome it in practice through what is called a spectrum approach, in the field of international investment law and international environmental law. In particular the focus is on foreign direct investments. Three research questions are posed. First, why is there an increasing amount of investor-state disputes involving an environmental aspect? Second, is it possible to identify common elements, particular problems and specific rules regarding foreign direct investments which have an environmental aspect, from different sources of law, while also taking into account the element of liability? Finally, how could the risk of conflicts, disputes and any resulting liability be minimized? After the introductory Part I, Part II focuses first on the detailed substance of the research topic, placing it then in the theoretical framework, followed by systemizing the growing and changing regulatory and quasi-regulatory framework of it. In Part III on implementation, relevant existing cases are examined. A practical implementation exercise of the identified rules and elements to a foreign investment in the forest sector is included, to investigate if and how the identified rules and elements would apply. Finally in Part IV discussion on future developments and concluding remarks on the findings are presented. The end product of the research is a compact and practical indicative checklist for states and investors that could serve as a tool in order to minimize as far as possible the risk of disputes and liability. The study demonstrates that due to the fragmented nature of international law, in order to facilitate the functioning of the system there is not one, single solution available. This is particularly the case in relation to the third and final research question. Instead, actions by different actors, in different contexts, levels and temporal phases are required, while ensuring a sufficient dialogue and information flow between these actors.
  • Lehtinen, Lasse (2014)
    The purpose of this research is to compare the rights and duties of a legal counsel in legal aid cases. The main principle concerning the rights and duties of the counsel is that there must be a balance between these rights and duties. The counsel has a right to charge a reasonable fee for legal work in the case, and has a duty to carry out this work with such care expected of a professional lawyer. The counsel's duty must be to act in a way that benefits the client and ensures his or her rights. This dissertation focuses on the question of how the rights of the counsel to reasonable remuneration for necessary actions, lost time and expenses are actually realised. A comparison is made of the ways in which the principles of reasonable fee compensation for necessary actions is realised in chargeable cases, when courts have determined what amount the losing party is ordered to pay to cover the winning party's legal costs. The results of this research show that the most important criterion in Finland for reasonableness of the fee is the present general attorney fee level. This has caused a countinuing rise of counsels' fees because lawyers are charging rates at the top attorney fee level. Therefore no fee competition exists between lawyers in Finland. Neither there are fixed tables or even recommendations which could guide the courts in determining limits for reasonable fees in cases of other than legal aid. The lack of competition and fixed tables means that nothing prevents lawyers from charging higher and higher fees when claiming client costs from the opposing party in cases where their clients are without legal aid. In legal aid cases the counsel has the right to charge 110 /hour plus Vat as a reasonable fee for necessary actions, lost time and expenses. Absolute reasonableness requires that the legal aid lawyer shall receive such fees that he can run his law office and have an income equal to the general lawyer salary level in Finland. This research shows that legal aid lawyers earn a much lover income compared to the fee level, what absolute reasonableness requires. In same type of court case, but instead involving legal aid, the fee that the legal aid counsel is able to charge, can be much lower that the above-mentioned compensation for lawyers in chargeable cases. Therefore legal aid lawyers may be paid less than what relative reasonableness requires. Legal aid lawyers have similar legal duties as lawyers in non-legal aid cases. This research shows that despite purpose of the law, a balance between the rights and duties of legal aid lawyers does not exist in practice. This is creating a contradiction between legal aid lawyers' rights and duties.
  • Nenonen, Anne (Helsingin yliopiston oikeustieteellinen tiedekunta, 2014)
    Remedies in public procurement beyond the scope of the procurement legislation The subject-matter of the thesis concerns administrative appeal as a remedy in public procurement beyond the scope of the procurement legislation. This subject-matter is approached from three different perspectives. First, the traditional jurisprudential method is applied so as to examine the requirements of EU law, the European Convention on Human Rights and the Constitution of Finland as regards remedies in respect of public procurement beyond the scope of the procurement legislation. These requirements provide a background for evaluating how the domestic remedies provisions should properly be interpreted. The second perspective is that of the Europeanisation of the law and its impact on the interpretations of judicial review in procurement cases. And thirdly, the subject-matter is approached from a regulatory point of view, looking especially into the effectiveness of administrative appeal as an avenue of judicial review in procurement. There are differences in the scope and the preconditions of application of the basic rights provisions and human rights provisions on due process, which may lead to variation in the requirements for remedies in procurement cases. Where a procurement process falling beyond the scope of the procurement legislation nonetheless falls within the scope of EU law, it is necessary to provide an effective remedy for rights arising from the principles of equal treatment and transparency. In turn, procurement processes falling solely within the scope of domestic law are governed by the general principles of good government, which means that the tenderer acquires the procedural right to proper and equal treatment in the procurement process. The Human Rights Convention guarantees access to justice at least in cases of discrimination. As a matter of fact, there would be reason to adopt one and the same interpretation of when and how a procurement decision can be appealed, regardless of which basic right or human right is concerned or of which contracting authority made the decision in question. The assessment of avenues of appeal should be based on the nature of a procurement decision as a choice of supplier and on the aspects of public law governing this choice. The Europeanisation of law has increased the regulation of public procurement and emphasised the need for effective access to justice. In procurement beyond the scope of procurement legislation this means the application of the norms of judicial review to a new type of case. The thesis contains an examination of relevant cases from Finland, Sweden and the United Kingdom, concerning the application of general administrative judicial measures on a procurement case beyond the scope of the procurement legislation. The criteria that administrative appeal sets on an official decision that can be appealed, and the prohibition in municipal appeal to present new claims once the appeal deadline has passed may, in certain situations, result in problems as regards the requirement of effective remedies in EU law. Moreover, administrative appeal may prove ineffective in practice also because there are no remedies that would be in compliance with the procurement legislation and ensure the elimination of errors in procurement procedure. In order for judicial review beyond the scope of the procurement legislation to be equally effective as judicial review within the scope of that legislation, there would be need for more precise regulation of procurement procedures and also for the adoption of remedies regulations similar to those appearing in the procurement legislation. It would hardly be expedient to make the scope of the procurement legislation narrower and at the same time to create corresponding, but separate procedural provisions for procurement that falls beyond the scope of that legislation.
  • Alén-Savikko, Anette (Anette Alén-Savikko, 2014)
    This doctoral dissertation focuses on audiovisual sport coverage in the new media landscape and provides a critical, EU level analysis. Multiple layers of exclusive aspirations exist alongside a striving for maximum exposure and public appeal: sport broadcasting rights in particular have been questioned as their costs have risen and sport content has been moved behind conditional access. These tendencies have then provoked fundamental rights discussions on access by the public to information, pluralism of the media, and freedom of expression. Business is an inseparable part of the modern sport and media gestalt. However, other dimensions to European audiovisual sport coverage exist that do not operate in terms of finance and the market economy alone. In the EU, audiovisual media are regarded as economic services, but they are also acknowledged important role in societies, democracy, and culture. Also European sport has strong socio-cultural dimensions alongside its economic aspects. As regards the new media landscape, media convergence is allegedly influencing sports related media rights and commercial exploitation of sporting events. On the other hand, the Internet and social media are utilized by ordinary citizens, consumers, and supporters. Various demands and regulatory requirements arguably co-exist on many levels. This research aims at providing in-depth analysis of the role of law and alleged changes in the new media landscape, especially concerning various demands and regulatory requirements in the field of audiovisual sport coverage. The focus is on media law and copyright law whereas sport is treated as a particular kind of content with many legally interesting dimensions. Various proprietary rights and exclusive tendencies are mapped out in light of legislation, case law, and legal literature. In addition, fundamental rights, free and fair competition, copyright, and the public interest are analyzed as "law in action." Legal issues related to the Internet and social media are discussed as well. Legal texts are analyzed in the research and research interests are primarily theoretical. A law-and-community approach, elaborated on the basis of Roger Cotterrell's (2006) typology, is utilized in the analysis of legal texts while media and communications studies in particular are utilized in the analysis of (new) media. In particular, the ideas of Jay Bolter and Richard Grusin on 'remediation' are elaborated. New media present a continuation rather than a complete transcendence: new media achieve their 'newness' and cultural significance by refashioning earlier media and the process is mutual (e.g., the Internet/TV). The interrelations between various legal regimes prove highly complex, and EU law in the context of audiovisual sport coverage is often a mixture of Union-level and national-level instruments; there is no overall concept. Moreover, the Internet and social media provide additional dimensions. To conclude with statements on the dominance of economic and instrumental considerations is not surprising. Moreover, audiovisual media and the sport industry also appear to be challenged time and again by technological development and the activities of new entrants or members of the public. As regards the role of law, the research argues that some demands and regulatory requirements have changed in the new media landscape and that the law has difficulty in meeting those demands. With the traditional media mode, inclusion is less in degree and allowed mainly on industry terms whereas the new media mode allows for 'convergence' including in the meaning of media-related roles and practices. Alongside cross-border issues, especially difficult for law is this relativization of binaries in the new media landscape.
  • Helenius, Dan (Suomalainen Lakimiesyhdistys, 2014)
    CRIMINAL JURISDICTION This thesis deals with the criminal jurisdiction of states. Legal examinations of the topic have been somewhat fragmentary in the Nordic legal community. The focus has rather been on certain sets of problems than comprehensive systematization. This can be seen in contrast to legal doctrine, especially in Germany. As the thesis deals with construction and systematization, it has a clear legal dogmatic character. However, the analysis is not directed at a particular country s legal system, but rather at criminal jurisdiction as a general legal phenomenon. This also requires elements of legal comparison. The comparative method used can be characterized as functional comparison, with the Finnish, Swedish, Danish and German legal systems to the fore. Chapter 2 analyses criminal jurisdiction in a broader legal context. In order to get a comprehensive picture of criminal jurisdiction, one must take into consideration the interplay between questions of jurisdiction and questions that relate to other legal areas with an international character. The concept of international criminal law is often used to indicate the totality of norms that regulate a state s criminal jurisdiction. However, this can be considered misleading. Rather, it is warranted to use the concept of international criminal law as an unspecified collective term for norms that have a certain functional relationship. Given this understanding of the concept, one can generally distinguish four separate areas: the law of criminal jurisdiction, international legal assistance in criminal matters, supranational, including European, criminal law, and international offences. When examining the collective term international criminal law, one must consider the numerous points of contact between these separate areas and, indeed, places where they overlap. The meaning of criminal jurisdiction is examined in chapter 3. The purpose is to provide a structure and an understanding of the scope and legal implications of the law of criminal jurisdiction. The concept of jurisdiction usually refers to the exercise of state power in some form. This exercise of power can refer to the relationship between states and individuals as well as the relationship between states. Consequently, the law of criminal jurisdiction has a national as well as an international dimension and there is a continuous process of interaction between these dimensions. The law of criminal jurisdiction also has a dual legal character. The law of jurisdiction has a material as well as a procedural side. The concepts used to indicate these components are penal authority and judicial authority. Penal authority refers to the state s claim on criminal appraisal of certain determined circumstances. Judicial authority, on the other hand, refers to the state s claim on realizing its penal authority. As long as national courts only apply national criminal law, the scope of a state s penal authority is the same as the scope of the application of its criminal law. By legislating on the scope of the application of national criminal law, the state, consequently, also establishes its penal authority. In order to understand the law of criminal jurisdiction, one must distinguish between these components. The question of how states legislate on matters of criminal jurisdiction is also examined. This leads to the question of the dogmatic position of the norms on jurisdiction as well as the question of the so-called factors of the scope of application encompassed in these norms. Legal doctrine is divided on these issues, and the thesis strives for a more thorough analysis of them. How one answers these questions has a direct implication for a set of other questions of criminal law, including the principle of legality, the principle of guilt as well as criminal intent and mistake. Chapter 4 analyses the bounds of criminal jurisdiction, primarily with regard to limitations stemming from international law. States usually claim jurisdiction not only with regard to offences committed within their own state borders, but also with regard to offences committed abroad. According to the opinion presented in the thesis, the limitations must be sought in the principle of nonintervention and the doctrine of meaningful connection stemming from this principle, both found in international law. The international principle of the sovereign equality of states entails a demand for states to respect each other s internal affairs. Sovereignty in a material sense encompasses a state s self-determination over its own internal affairs. These affairs also include a state s criminal policy. In a positive respect, the demand for states to respect each other s sovereignty gives states the right to determine their own internal affairs. In a negative respect, there also follows a prohibition not to intervene in the internal affairs of other states (the principle of nonintervention). Any interference with another state s right to self-determination has to be justified by reference to a meaningful connection that expresses an acceptable interest between the extraterritorial circumstance and the state that makes use of its power of criminal regulation. Generally, one can presuppose that the so-called principles of jurisdiction express such meaningful connections. In order to render it possible to examine these principles, one must make a distinction between national principles of jurisdiction and international principles of jurisdiction. National principles are the results of attempts to identify and systematize overall elements in the national rules on jurisdiction. Therefore, they have a descriptive function. On the other hand, the function of international principles is to establish constituently which connections the national legislator may refer to when extending the state s penal authority. Therefore, they also have a normative function. In the course of their development, international principles have become detached from national principles and have acquired an independent meaning as norms of permission in international law. They are based on and form typical examples of balancing a state s self-determination and the principle of nonintervention. As such, they facilitate the need of national legislators and judiciaries to conduct a new exercise in balancing these two interests in every single case. The scope and meaning of the individual principles of jurisdiction are also examined. Additionally, I also analyze certain other aspects of importance for the scope of the law on criminal jurisdiction, such as international immunity and international jurisdictional obligations. Chapter 5 focuses on a particular problem complex in relation to the law on criminal jurisdiction, namely, the question of overlapping jurisdiction and conflicts of jurisdiction. First of all, the state s unilateral regulation on jurisdiction inevitably brings about a situation in which the law on jurisdiction in several states can cover the same act. Secondly, international conventions and EU legal acts also result in jurisdictional networks that give states overlapping jurisdictional competence. The problem has been discussed intensively with regard to EU member states, which are presupposed to practice a close legal cooperation based on trust. The focus is, therefore, on conflicts of jurisdiction between EU member states. Conflicts of jurisdiction can have negative consequences for a state s measures regarding criminal procedure as well as for individuals that are thereby affected. Consequently, the question arises as to what degree it is possible to prevent and solve conflicts of jurisdiction. Different models and legal mechanisms exist for this purpose, and these are examined more closely. An appropriate model for the solving of conflicts requires above all a sufficient level of transparency and predictability.
  • Terenius, Markus (Suomalainen Lakimiesyhdistys, 2013)
    POLICE USE OF FORCE A STUDY IN CRIMINAL LAW ON THE LIMITS OF ALLOWED USE OF FORCE The purpose of the study is to provide an overview on the legal framework on police use of force. As the study falls primarily to the sphere of criminal justice, the special focus in analysis is on defining the approaches that are to be considered non-acceptable. A great number of various operational models, of which some are considered better and some worse than others in a tactic sense, are left within the scope of the defined external limits of the zone of acceptable use of force for discretion of individual police officers. Rules on self-defence and use of force provided in the Criminal Code and Police Act are flexible and for their application, various factors, all pulling to different directions, must be weighed. In order to describe this process of weighing, the study provides an analysis of the discussion on the rules and principles of the 1980 s and 1990 s. Since the 1990 s, argumentation on fundamental and human rights has gained more room in this discussion. Arguments based on fundamental and human rights have been used to pinpoint legal problems as well as scales of approval in respect to recommendations for legal interpretation. Both of the approaches reflect the significance of fundamental and human rights as the factor merging various fields of justice and as the counter-force to scatter justice. Thus, the methodology used in the study may be described as a legal doctrine that takes fundamental and human rights into account. Regarding the relation between criminal law and police law, the study aims to establish the way in which actions in line with police powers are positioned on the structural field of crime and to ascertain the significance that criminal justice has in defining the limits of police powers. The study suggests that action based on powers accepted to cover official duties and tasks does not constitute any action meeting the definitional elements of crime, but that it is rather a question of action taken within the limits of acceptable risk defined in criminal law. In the light of this approach, the study evaluates the acceptability of use of official powers from the perspective of criminal justice by interpreting and applying police powers, in particular, instead of justifications derived from the field of criminal justice. In addition to sending a strong moral message, noting discharge of liability on the level of conformity to the definitional elements accentuates the perspective of administrative law and, at the same time, makes government action more predictable resulting in refined legal safeguards for both citizens and government officials. Highlighting the significance of administrative regulation in the context of police use of force would lead to a situation in which provisions of criminal law on self-defence and necessity were to be applied only in exceptional cases and where self-defence, in particular, would lose importance as justification for police use of force. The study suggests that the unnecessary wide scope of application of the provision on self-defence should be de lege lata narrowed. A police officer s right for self-defence should be limited to concern attacks posing serious threat to life or health and only under exceptional circumstances, to situations in which other persons than the police officer employing forcible means are subjected to an attack or a threat of an attack. The de lege ferenda split in the use of force and self-defence should be waived, and all situations involving use of force should be assessed on the basis of the same set of administrative regulations regardless of the used force having been offensive or defensive. In the light of a police officer s fundamental and human rights and considering the principle of equality in particular, it is required, however, that the content of the provision on right for self-defence to be included in the regulations of official powers should correspond to the content of the general provision on self-defence in the Criminal Code. In respect to the substance, criminal law and police law should not diverge too far from each other, whether it is a question of police use of force or any other official action taken within the scope of official powers. Arguments on fundamental and human rights serve as the force merging these fields of justice but they also define the external limits of police use of force - and of police powers in a more general sense - that cannot be crossed. By analysing the case law of the European Court of Human Rights in particular, the study aims to establish what kind of unconditional prohibitions or principles to be taken into account in the interpretation are set on police use of force by fundamental and human rights. Some efforts have been taken to derive standards applicable to police use of force from human rights, although fundamental and human rights are too general and imprecise to offer any particularly clear guidelines for defining illegal action. Rulings of the Supreme Court of Finland and Courts of Appeal have been used to outline the limits of legal use of force in Finland. Questions on whether or not intentional killing falls within the limits of acceptable use of force, on one hand, and the extent in which rights of bystanders may be jeopardized in the context of employing force, on the other hand, have been discussed as individual questions. The study did not reveal such weaknesses in national regulations on police use of force that would jeopardize fundamental and human rights, but it concludes that from the perspective of fundamental and human rights of an individual citizen, police use of force is well regulated, well managed and well carried out. Especially in respect to the police weapon use it is evident; it is highly regulated even in a comparison limited to concern only the Nordic countries. In relation to police use of force, only legal standing of the bystander is relatively poorly regulated. In this respect, the study aims to define some preliminary standards, but there is an obvious need for further study. The last part of the study focuses on the following questions: How unlawful use of force should be punished and what are the legal norms on which such punishment should be based? And: How various types of mistakes should be assessed in the context defining the limits of criminal liability? A precondition for passing a sentence for an offence committed in public office with intent and along with it, for a so-called general intent offence is that the government official in question was aware of not only the consequences for the act, but prevalence of the unlawful nature of the act and relevant circumstances quite probable at the time of commission. In the context of evaluation of situations involving use of force and, in more general sense, application of official powers in the context of statutory duties, it should be borne in mind that it is a question of action based on statutory duties which has inevitable repercussions on the possibilities to act differently - an essential concept from the criminal law point of view. The study assesses situations in which a police officer is obliged to employ force from the angle of statutory duties. On the basis of case law of the European Court of Human Rights, the lower limit in situations jeopardizing life and health has been set to a real and immediate threat . However, any obligation to act must not result in unreasonable burden on the state nor may it lead to unduly compromises in any police officer s safety at work.
  • Havu, Katri (Suomalainen Lakimiesyhdistys, 2013)
    This dissertation addresses the topic of compensating losses caused by infringements of EU competition law. In particular, the focus is on the relationship and on the “mixture” of EU and national law in that context. The topic is dealt with by studying, on the one hand, EU law and, on the other hand, Finnish law as a national legal order. The main method is the theoretical legal dogmatic method but some parts (for instance, Sections II–III and VII) are also characterized by the interpretive or practical legal dogmatic method. Additionally, law and economics and law and language approaches have had some impact on the work. In the absence of material EU rules on the matter, it is for national legal orders to provide remedies and procedures for safeguarding the rights conferred on individuals by EU law. This is, somewhat misleadingly, also called the procedural autonomy of the Member States. National law fills in the gaps left by EU law so that, for instance, the law applicable to a dispute involving damages claims related to infringements of EU rights is a mixture of EU law and national law. In addition to being a combination of material rules of different legal orders, the mixture is complicated by the fact that even when national rules apply, it may be necessary to adapt them to meet the requirements set by EU law. Regarding reacting to infringements of EU law in areas of law where the EU legal order does not legislate the means of reacting and procedures for doing so exhaustively – which is very often the case – it is not possible to easily discern the applicable material rules and their meaning. Instead of being a clear set of stable rules, the law applicable to compensating losses caused by infringements of EU competition law is a dynamic mass of principles and rules of both the EU and national legal orders. It can be noted in both European and Finnish legal discussion that great inability arises in pointing out the applicable rules of law and their meaning. For this reason, discussion and assumptions on the content of applicable rules are vague. Furthermore, statements made on the meaning of applicable law without paying attention to the conundrum of concurrent norms and principles of EU and national law may be incorrect. This dissertation aims to find a way or a model for structuring and discerning the applicable pieces of law, and finally: the content and meaning of law in a situation where damages are claimed (in Finland) in the context of infringements of EU competition law. To achieve this goal, EU requirements for national law that safeguards EU rights and regulates reactions to infringements of those rights is studied closely. Central issues for this work include so-called procedural autonomy case-law and other EU law on the interaction of EU law with national legal orders, and how all this is to be seen in the context of competition law infringements. In addition to principles and requirements of EU law, relevant material rules on damages must also be and are taken into account as a part of the whole of the relevant EU law. Moreover, because EU principles and requirements are content- or result-oriented, material national rules are studied in order to see how the combination of EU and national law is actually formed. Regarding the requirements that EU law sets for national law, it is of importance that the issue whether something exists that should be regarded as an EU right to damages under competition law, which would be subject to the EU requirements applicable to (upholding or maintaining) EU rights as defined in EU law, can be considered obscure. For instance, a plenitude of legal discussion is available that mentions the right to damages in this context and thus departs, either knowingly or not, from a rational starting point that damages actions or compensation should be regarded as something that is subject to the EU requirements that relate to remedies in situations where an EU right is infringed. The question as to under which EU law requirements the issue of competition infringement damages should be dealt with is a central one, since an alleged “right to damages under competition law” should, in national courts, be upheld as it appears in EU law – which might necessitate disapplying a great amount of national law. Moreover, the task of upholding would be quite challenging, since significant parts of such a “right” are not yet visible in EU law. If the EU requirements on remedies and procedural autonomy principles that regulate reacting to infringements of EU rights were to apply to compensating damages related to competition infringements, that is, if damages were to be considered a mere remedy from the point of view of EU requirements, there could also be some variation in deciding relevant competition infringement-related cases in national courts. National law could be applied as long as it were not contradictory in relation to the few material rules discernible in EU (case-)law and as long as national law were in accordance with the EU law requirements – in the context of remedies: principles of equality, effectiveness and of adequate judicial protection. In this dissertation, the issue whether the requirements for upholding EU rights or the requirements relating traditionally to (reactive or reparatory) remedies apply to damages under EU competition law is studied by analyzing the relevant concepts and requirements in EU case-law. Even though the concept of rights and their relationship to remedies are unclear issues in EU law, it is submitted that damages under EU competition law are to be evaluated according to the requirements applicable to remedies. Moreover, in competition infringement situations, the EU right that must be upheld is not that of damages but a right to a competitive and undistorted Internal Market. It is argued that the “rights language” of the Court of Justice of the EU in the context of competition infringement damages does not refer to a particular right to damages but represents standard language (not a particular legal definition) or refers to the above-mentioned right to competitive markets. The model for structuring and discerning the applicable law in competition infringement damages cases is constructed by distinguishing between EU law requirements for rights, (reactive or reparatory) remedies, and procedural rules, and viewing damages for competition infringements as a (reactive or reparatory) remedy. On the basis of the analysis, it is submitted that each sub-issue of a damages claim case, such as a condition for reparation (e.g., causal link), should be evaluated by first surveying the possibly applicable material EU law rules (both in the specific context of competition infringement damages and more broadly), and then analyzing the compatibility of national rules with the material rules. After this one should continue by surveying the discernible significance of the relevant EU law requirements in the context of that particular sub-issue, and then analyzing what the EU law requirements mean in the context of relevant and (taking into account the material EU rules) still eligible national rules, assessing whether the rules may be applied as such and whether, for instance, it is necessary to interpret them in a certain way to fulfill the requirements of EU law on remedies. The model for structuring and discerning the applicable law is applied for short and exemplary analyses of certain conditions for awarding damages, taking the reader through the relevant EU law and Finnish law as the model suggests. Conclusions of the research include the observation that structured and organized analysis of EU law and national law is possible and advisable in the context of competition infringement damages. Studying the combination of EU law and national law according to the model reveals that Finland’s, or any other Member State’s, law may be compatible with EU law also in such contexts where other descriptions of EU law and its requirements would have led to a different result. Requiring fault and law relating to it is an illustrative example of this. Regarding possible erroneous findings of incompatibility, also unnecessary adaption of national law “to suit the requirements of EU law” could constitute a problem in administration of justice, because it would lead to decisions that are not really based on law and which would, moreover, be problematic from the point of view of legal certainty. The applicable material rules and their contents vary over time but the basic principles for discerning the common meaning of EU and national law, as well as the fact that reacting to infringements of an EU right (to an undistorted Internal Market) is regulated by a combination of EU and national legal orders, are more permanent. The European Commission’s new (2013) proposal for a directive relating to competition infringement damages claims shows that many significant aspects of damages claims are going to be governed by national law and EU limits on national law – that is, a complex combination of EU law and national law – also in the future. Analysis based on a similar model as constructed in the dissertation is also likely to be useful, for instance, regarding other contexts where claims for damages are based on EU law in horizontal relationships.
  • Frände, Joakim (Suomalainen lakimiesyhdistys, 2013)
    Dual residence in the taxation of individuals Each country has the right to determine on which grounds and to what extent it exercises its tax authority. In the case of individuals a country usually bases its right to levy taxes on the connection between the country and the individual, or the country and the income or wealth in question. This thesis deals with the connection that exists between the country and the individual. Under domestic tax law systems a separation is usually made into full and limited tax liability. Full tax liability arises when there are strong ties between the individual and the state. Residence is usually considered a strong tie that results in full tax liability. A person who is resident in a country, and therefore subject to full tax liability, is usually taxed on his world wide income. However, if the person is not resident, the state does not claim the right to tax the individual as such, but taxes income that arises within the territory of the country. When determining residence in one country, no consideration is given to whether the person is also resident in other countries. Consequently, individuals can as a result of cross border movement be considered resident both in the country of arrival and the country of departure. When two countries both consider an individual resident, dual residence arises. The purpose of this thesis is to analyse three aspects of dual residence. First and foremost, national rules on residence will be analysed, as well as how dual residence occurs in practice. Secondly, the rules on how to determine tax residence for tax treaty purposes are discussed. Thirdly, the tax consequences of dual residence will be investigated. The emphasis will be on the first two aspects of dual residence mentioned. The thesis is based on a dogmatic approach to legal research. Some elements of comparative methods of research are also present. A person who is resident in Finland is subject to full tax liability in Finland. Residence for income tax purposes is determined in the income tax act (ITA) § 11. According to ITA § 11 a person is resident in Finland if he has his main abode and home in Finland, stays over six months in Finland or falls under the three-year rule. Finnish nationals who leave Finland are as a result of the three-year rule considered resident the year of departure and the three following years. Limited tax liability can arise before the three- year period ends if the individual can produce evidence that he lacks substantial ties to Finland. The Finnish rules on residence are partly problematic. The rules on when a visit to Finland has fulfilled the six months requirement are unclear. Also, the three-year rule does not specify what a substantial tie is. The three-year rule furthermore distinguishes between Finnish nationals and foreign nationals. Different tax consequences depending on nationality can be problematic from an EU perspective. A short analysis of the current ECJ cases, however, indicates that the three-year rule is probably in conformity with EU law. Residence is also used to determine tax liability for the purpose of other taxes, such as the gift and inheritance tax, car tax, municipal tax and social security contributions. Each above-mentioned tax has its own notion of residence. The different concepts of residence are compared with the residence concept that is used for income tax purposes. The comparison led to the observation that the residence concept for income tax purposes can impact on the other residence concepts. Usually residence for other tax purposes does not impact on the residence status for income tax purposes. However, the tax authorities claim that belonging to the Finnish social security system is a substantial tie according to the three-year rule. The Finnish rules on residence for income tax purposes are in many ways interesting in comparison to other countries rules on residence. A comparison has been made with Sweden, Norway, Denmark, Germany, the United Kingdom and the USA. Most of the above-mentioned countries have fairly recently amended and modernized their rules on residence. The comparison demonstrates that the Finnish rules on residence are outdated and in need of reformation. For instance, nationality does not carry any weight when determining tax liability in most other countries (except for the USA). When a Finnish national moves abroad, he is usually subject to full tax liability in the country of arrival, and at the same time subject to full tax liability in Finland due to the three-year rule. The resulting dual residence is solved by tax treaty, provided that the countries have concluded a treaty. For tax treaty purposes a person can only have one tax treaty residence at a time. Residence for tax treaty purposes is determined through the tie breaker in article 4(2). The state of residence has the primary right to tax the individual. The tie breaker is, however, problematic, since the criteria on which residence is decided are partly ambiguous and can be interpreted in different ways. Therefore the general rules on tax treaty interpretation have to be considered. Rules on tax treaty interpretation can be found in domestic legislation, international law, the Vienna convention, article 3(2) of tax treaties, and in the commentaries to the model tax convention. Some of the rules on interpretation can lead to different outcomes. The parties can also have diverging information about the individual s personal circumstances. Therefore it is possible that two countries cannot reach an agreement on which country should be the individual s state of residence according to article 4. When both countries claim to be the state of residence, the conflict shall be settled by the mutual agreement procedure in article 25 of the tax treaty. The mutual agreement procedure is time consuming and results cannot be guaranteed. In Finland there are no publications by the tax authorities on the mutual agreement procedure, and the procedure is hence not very well known. Therefore, I have tried to describe how the mutual agreement procedure is executed in practice. In 2008 the OECD added an arbitration clause to its model convention as a final means to solve tax treaty disputes that have not been solved by the mutual agreement procedure. Finland has not, however, included the clause in its treaties. Dual residence can result in several different consequences for the taxation of individuals, and the possible consequences are analysed in this thesis. The taxation of dual resident individuals can vary greatly from one situation to another depending on domestic legislation in both countries of residence, the type of income, the source of income, the tax treaties articles and the interpretation of the tax treaty. The taxation of dual resident persons can be divided into situations where no tax treaty has been concluded, a tax treaty exists and Finland is not the state of residence, and situations where both countries claim residence status according to the tax treaty. Some Finnish tax treaties include the three-year rule in article 23. According to the clause the source country is granted a more comprehensive, but secondary, right to tax persons who are resident according to domestic tax law, although the residence state for tax treaty purposes is in the other country. To demonstrate the impact of dual residence on the taxation of individuals, the taxation in Finland of interest, dividend, capital gains, salary and pensions is described through practical examples. Situations of dual residence can also have other tax implications, e.g. is there a progressive impact on other income, and how are deductions and losses taken into account when Finland is not the state of residence according to article 4? Dual residence does not necessarily cause double taxation as a result of national rules on credit and exemption and the elimination of double taxation. The concluding chapter sheds light on some of the most urgent problems in the current legislation on residence and presents some suggestions for improvements. The rules on residence in the domestic income tax act are scrutinized in detail. It is suggested that the nationality criterion in the three-year rule is abolished, and that substantial ties are defined in the income tax act. Furthermore, it is also suggested that the national rules on the elimination of double taxation are elucidated and that the scale of application is extended. On the international level it is recommended that article 3(2) in the OECD model tax convention is amended to primarily recommend an interpretation according to the context. Some minor adjustments are also presented to the articles on residence and mutual agreement.
  • Ponka, Ilja (Helsingin yliopisto, 2013)
    This dissertation discusses electronic identification and signatures in the Finnish law of obligations. Despite the technical topic, the study is a traditional legal one, aiming at systemising the law and giving suggestions for the interpretation and application of the relevant law, although small changes to the applicable law are also suggested in a few places. The dissertation consists of three parts. The first part (chapter 2) discusses the technical aspects and introduces the international and Finnish legislative background, as well as the central piece of legislation for this study, the Act on Strong Electronic Identification and Electronic Signatures (ElectrIDSignAct, 617/2009). The area of applicability and terminology used in the act are discussed in detail. Much of this act closely follows the EU Electronic Signature Directive (ESD, 1999/93/EC), but some improvements are suggested in the domestic parts. The second part (chapter 3) discusses contract law issues such as entering into obligations with the help of electronic signatures or identification, the law of agency, unauthorised use, the law of evidence and legal form requirements. As it turns out, most issues discussed can be addressed with appropriate interpretation of existing law and principles, but a few suggestions are made for the general rules of chapter 2 of ElectrIDSignAct and the requirements for the written form. The third part (chapter 4) discusses tort law as it relates to the unauthorised use of electronic identification or signatures. The different liability scenarios, parties duties and differences in liability rules in contract and outside of contract,as well as the floodgate argument and the Finnish rule on pure economic loss, the Tort Liability Act (412/1974) 5:1, are discussed. After this, the rules for each party are considered in turn. The liability rules for the unauthorised and authorised user are clear. The only suggested change is that the objective liability of ElectrIDSignAct 40.1 § should be replaced by fault liability. Moreover, it is deemed unlikely that outside the special rule of ElectrIDSignAct 41 § (ESD article 6) the trusted third party would be liable to a trusting party, unless there is criminal or grossly negligent behaviour. It is also suggested that a closed infrastructure may be preferable to an open one, since it can be far less complex and allow more effective safeguards.
  • Paanetoja, Jaana (Suomalainen lakimiesyhdistys, 2013)
    This thesis in labour law addresses of four different subjects. First, the content of work within an employment contract and work activity outside of an employment contract regulated by The Social Welfare Act will be reviewed. Second, work activity, according to The Act on the Special Care of Mentally Handicapped Persons, will be studied. Third, work activities organized by mental health organizations for their members will be examined and, finally, supported employment and transitional work performed by the mentally rehabilitated and special features of such work will be analyzed. The aim of the research is to identify the difference between work performed under an employment contract and work that is performed without being included in an employment contract. The main goal is to find a distinction between employment contract and work activity. The analysis focuses on the essential elements of an employment contract, as given in the Employment Contracts Act, chapter 1, section 1, and the derived establishment of the status of an employee. The main focus of the study is on the kind of work that, is called work activity, which is performed in exchange for pay and which legal nature is not specified by law. The study is thus concerned especially with work activity performed under the Act on the Special Care of Mentally Handicapped Persons in sheltered work centres and work activity units and work performed outside those centres and units in the open labour market as well as work activities organized by mental health organizations for their members. The study clarifies the content of each individual essential characteristic of an employment contract and investigates the possible need for further completion of these characteristics. In this regard, the content of the definition of work itself, the significance of the intent to make a profit, the motives for performing work and for employing workers, are analyzed. The study also clarifies the status, content and importance of the comprehensive assessment of the employee position (employee relationship). Although the study analyses the legal nature of work activity, especially the parts governing the content of each individual essential element (characteristic) of employment contracts and the comprehensive assessment of the employee position, it can also be viewed from a broader labour law perspective. Understanding work activity as a form of work performance offers the opportunity to analyze labour law s fundamental question from a new perspective: what is the definition of the position of the employee. The research also relates to other questions than just the distinction between work activity and an employment contract. These are, among others, could relationships that do fulfill the essential characteristics of an employment contract be left outside the protection of the labour law and the impact of administrative action on the legal establishment of an employment contract. Together with work activity the, study analyses features which are uncommon for traditional employment contracts, such as features related to supported employment and transitional work. Among other things, the meaning of the personal criteria, which is an essential element of an employment contract, and the division of the employer's duties, are reviewed. The distinction between work as defined within an employment contract and work not included in an employment contract (other than the work of the self-employed) has not, with the exception of the distinction between employment contracts and hobby activities, been researched before. The research method is mainly legal dogmatic. In addition to legal dogmatic research, the study also contains elements from the fields of critical legal studies and problem-centered legal studies. Furthermore, the study analyses the impact of individual attributes and their influence on the assessment of the nature of the legal relationship of work in the same way as found in social civil law. The research showed that the difference between The Social Welfare Act's (section 27d subsection 3) concept of work as defined in an employment contract and conventional work remained a matter open to discussion. Furthermore, the internal distinction between work as defined in an employment contract and work activity not covered by an employment contract (section 27e) remained unclear. The health of the participant and his or her basis of living have been used as a separation criterion instead of the nature or the content of work. The research concludes that the essential elements of the employment contract may be fulfilled both by work activities done by the retarded and by work activities organized by mental health organizations. A comprehensive assessment of the employee position is not needed: by analyzing the essential elements of an employment contract, one can identify the legal nature of the relationship. The uncommon features found in supported employment and transitional work did not appear to undermine the existence of an employment contract. The results of the study indicate some disregard for certain aspects of particular codes of labour law in the field of social civil law. Legal relationships dealing with work activity are mainly considered to be found outside an employment contract and the nature of these legal relationships is not even assessed with the essential elements as given by the Employment Contracts Act. In fact there never even been given a chance to assess the possibility of an employment contract. As individual contracts concerning work activity have not been challenged, it demonstrates that individuals themselves are content with the general, dominant view of the nature of work activity falling outside the provisions of an employment contract and the protection of the labour law. However, the norms of the labour law should also apply, to work activity along with social law. To perceive the legal relationship as a non-employment contract is not the solution, one has to analyze the juridical nature of the work by applying the essential elements set out in the Employment Contracts Act. Alongside other issues, constitutional questions must be taken into account when evaluating the possibilities for regulating work activities outside The Employment Contracts Act. Interpretations of the European Court of Justice may also have some influence on the matter.
  • Helwegen, Wim (2013)
    Experiences from ICT and biotechnology have shown that the current patent system has increasing difficulties with the numbers and complexity of patent applications. As a result, the patent system, which ultimate goal is to promote technological innovation and to reward the inventors, has been the subject of increasing criticism. Despite being in an early stage of development, nanotechnology is already the subject of a high amount of patents, and as noted by the European Parliament, the current nanotechnology patent landscape is not sufficiently transparent and general reforms of the patent system are needed. Reforming the patent system is a challenging and delicate task that requires a precise study of the various differing interests that need to be balanced. As part of the next generation of enabling technologies, the technological properties of nanotechnology as well as the properties of the nanotechnology industry are a likely and important factor in the debate on the reform of the patent system. Because nanotechnology is one of the most promising and most far reaching technologies of this age, the debate on reforming the patent system would not be complete without taking into regard the effects of the patent system on research and development in nanotechnology. The dissertation studies the patentability of nanotechnology subject matter, the effects of the external patentability requirements on nanotechnology research and development and explores the thresholds for patentability of nanotechnology in the light of the established practice and whether or not this requires exceptions to be made. Given the scarcity of existing studies, case law, and thus, theories, surrounding the patents in the nanotechnology sector, the methodological approach followed in this study will be mainly inductive. The context within which the materials will be discussed consists of developments that have occurred the ICT industry and the biotechnology industry. The study shows that although a technology-specific patent system has obvious advantages in theory, the difficulties in the practical implementation of such a system, as well as the direction of science and technology, indicate that a one-size fits all system is to be preferred. Nevertheless, it is advised to change several aspects of the current system in order to increase the value of patents and the efficiency of the entire system for the public as well as inventors. The study recommends, inter alia, measures to increase the efficiency at the patent office, a redefining of the research exemption and the introduction of a grace period in Europe.
  • Järvenoja, Markku (Lakimiesliiton Kustannus, 2013)
    The subject of the study is the tax treatment of capital flows between partnerships and their partners. The theme is discussed by examining the differences and the relationship between company law and tax law. The study focuses on legal acts related to partnership equity capital. Company law regulations regarding partnerships are very flexible, and the tax law related to partnerships is quite limited and tends to remain on a general level. The scrutiny must therefore be founded on legal praxis. The theoretical basis, conception of multidimensionality of justice takes into account not only the norms of tax law, but also practical reality as well as values and goals. It is sensible to base a study on the formation of tax law interpretation based on judicial rulings on the concept of the hermeneutic spiral. The hermeneutic spiral takes into account changes in legislation, judicial rulings, comments expressed in judicial literature as well as different practical arguments and the social impact of justice. The study has shown that legal praxis has had a leading role in developing legislation. In general, the interpretation policy developed and adopted in legal praxis has been codified into tax law. As the law was enacted, only those flaws which were seldom detected in legal praxis were corrected. Tax law is a dynamic branch of law where the development of the tax norm can be sensibly described as a hermeneutic continuum. It is in this sense that we have stressed the historic nature of the development of the tax norm and concept. A meaning does not emerge from thin air , but is based on a long-term development, as the meaning of the concept has adapted to better fit the development and content of the real world. The changes in taxation-related legislation and legal praxis show that the separate natures of the capital circle of the partnership and that of the partner is pronounced. The taxation of capital transfers between a partnership and its partner has become similar to the taxation of capital transfers between a limited company and its shareholder. The conception of the partnership and its active partner belonging to the same capital circle has had to take a step back, as has its impact on the interpretation of tax regulations. The strong real status of legal praxis as a source of law within tax law is based on two main arguments. Firstly, company law regulating partnerships is largely discretionary. Secondly, there are only few tax law provisions regulating partnerships, and even those that exist are written on a very general level. The study is concluded with a proposal to revert to the independent tax liability of partnerships. This reverse transition can be supported with the results of this research, as it would mean the unification of the respective meanings within tax law and company law.
  • Aaltonen, Mikko (Oikeuspoliittinen tutkimuslaitos, 2013)
    The association between socioeconomic status (SES) and crime is one of the central themes in criminology. While empirical studies on this issue have given mixed results, strong belief in an inverse association between SES and crime underlies Finnish criminal policy, where social policy is seen as an integral part of crime prevention. However, no proper population-based analysis of socioeconomic differences in crime in Finland is available. Using a register-based sample of the general population, the current study focused on socioeconomic differences in crime and violent victimization among young adults aged 19-30. The main result of Substudy I was that the bivariate associations between the four measures of SES education, income, occupation-based social class, and unemployment history and violent crime, property crime and driving while intoxicated (DWI) are strong, education being the strongest predictor. Using a more advanced within-individual longitudinal design to account for selection processes, Substudy II focused on the temporal association between unemployment and crime. In this design, violent crime and DWI were no longer associated with unemployment, meaning that the crime rates of the same individuals did no vary by current unemployment status. Property crime rate, however, was higher during periods of unemployment. Substudies III and IV focused on violent offending and victimization. Examining police-reported male violence, Substudy III showed that low SES and prior criminality were stronger predictors of violence in private places, against both men and women, than violence in public places. Men with low SES were also more likely to be suspected of intimate partner violence. Substudy IV compared socioeconomic differences in violent victimization in register-based data and survey data, finding that socioeconomic differences in both datasets were highly sensitive to the seriousness of the violence measured: the more serious the measured violence, the greater the differences were. In sum, the results show that crime committed by young adults in Finland is heavily concentrated in the lower social strata, with victims of serious violence often in similarly poor positions. While the existence of an inverse SES-crime association is not surprising, the scale of these differences is: the most obvious methodological reason to this is the high-quality register data that actually captures people from all strata. However, it is yet unclear how much different selection mechanisms contribute to these associations. In order to find ways to reduce social exclusion and crime, earlier processes related to both individual traits and difficult environments that push individuals to paths of cumulative disadvantage need to be better understood. The effects of different social policy reforms on crime should also be analyzed.
  • Huomo, Laura (Suomalainen lakimiesyhdistys, 2013)
    PROJECT FINANCING OF NATURAL GAS PIPELINES A STUDY ON NATURAL GAS PIPELINE PROJECT FINANCING UNDER FINANCIAL LAW AND LAW OF SECURITY INTERESTS. 1 Object and methods of the study Currently, Russia is the only supplier of natural gas to Finland. This study investigates how can the natural gas markets in Finland be opened by constructing a natural gas pipeline from Norway through Sweden to Finland in a manner that would be beneficial under financing laws and the law of security interests. Answers have been sought applying traditional analytical doctrine, utilizing as far as possible the questions enabled by the doctrine. In places where the answers have not been found applying traditional analytical doctrine, Juha Karhu s contemporary approach to the law of security interests has been applied. This study discusses various issues under financial law and law related to security interests related to property located in Finland, Sweden and Norway. The main purpose of this study is to examine whether a project company, as the borrower under a project loan, or the shareholders of a project company, could provide sufficient collateral for loan for a natural gas pipeline project. The legal literature used and discussed in this study includes a large variety of Nordic monographs and general property law books. In addition, Nordic case law concerning certain legal questions about which no literature is available has been studied in detail. 2 Structure of the study The study is divided into sections based on the type of collateral for the project loan. In addition, the study includes a short financing section in which the elements of a natural gas pipeline feasibility study are described, studied and applied to a hypothetical natural gas pipeline project. The discussion of the collateral for the project loan is divided into sections: (i) the property law-related issues concerning the construction of the pipeline and the possibility of pledging real estate owned, leased or expropriated by the project company as collateral for the project loan; (ii) the nature of the intercreditor agreements entered into among the members of the banking syndicate under Finnish, Swedish and Norwegian law; (iii) how the so-called earnings principle would affect the structure of the construction agreement for the natural gas pipeline and the effectiveness of the pledge of natural gas transportation fee receivables in the Nordic countries; (iv) how the pledgee could use the control factor related to a share pledge when the shareholders of the project company pledge the project company s shares as collateral for the project loan. 2.1 Real property required to construct the natural gas pipeline Due to its length, the natural gas pipeline would be built on real property owned by other parties than the project company. The project company would receive the right to use this property through an expropriation procedure. One of the most valuable assets of the project company has is the turbines that are located at the compressor stations. In order to ensure that the natural gas flowing through the pipeline remains pressurized, it must periodically be compressed along the pipeline at the compressor stations. This section examines the land codes of Finland, Sweden and Norway and discusses the possibilities for the project company to delineate which machine or facility is, or is not, part of a real estate through registration. This registration has proven useful in determining the scope of the real estate mortgage vis-à-vis the scope of a business mortgage established to the project company s assets. The registration should be used to designate that the turbines, for example, are part of the project company s real estate, and therefore, pledged under the real estate mortgage. If this registration is not carried out, there is a risk that the turbines will be considered to be pledged as a part of the business mortgage established to the project company s assets. In Finland, a business mortgage lender may only recover 50 percent of the enforcement proceeds and the remainder is divided among all creditors. 2.2 Intercreditor agreements t is customary for the members of the banking syndicate that finance a project loan to enter into an intercreditor agreement. This agreement regulates, among other things, the relationship between the senior and junior creditors regarding the terms of loan repayment and the payment order regarding the payment received from the enforcement of the project collateral. In Finland, the Act on Creditors Payment Order (1578/1992, as amended) regulates the payment order in a debtor s bankruptcy or foreclosure. Similar acts are in force in Sweden and Norway. However, it is possible for the parties to agree on an alternative payment order and these agreements are binding inter partes. In Finland, in order for the obligations of an intercreditor agreement to bind third parties, the agreement must be construed as a pledge or transfer of receivables with the intention of securing payment to the senior creditor. It may also be construed as a new financing form to which the Finnish Promissory Notes Act (487/1987, as amended) would be applied by analogy. 2.3 The effects of the so-called earnings principle on the collateral securing the repayment of the project loan and on the construction agreement Due to the scale and complexity of natural gas pipeline projects, the construction of a natural gas pipelines usually takes years to complete. The so-called earnings principle affects the structure of the construction agreement. The question discussed in this section is whether it is advisable for the project company to allow the constructor to build the pipeline on its own account or whether the project company would benefit from an agreement under which the pipeline would be constructed in parts and the ownership of individual segments of the pipeline would be transferred to the project company upon their completion. If the constructor files for bankruptcy, this above-mentioned framework could serve as a basis for concluding which parts of the unfinished pipeline would be part of the project company s or the constructor s bankruptcy estate and which part will be covered by a business mortgage established to the project company s or the construction company s assets. In addition, the earnings principle affects the effectiveness of the pledge of natural gas transportation fee receivables in the Nordic countries. If the pledged receivable is not divisible, and the pledgor was unable to earn the receivable before the pledgor s bankruptcy, the pledgor s bankruptcy estate has the right to terminate the underlying pledge agreement, rendering the pledge null and void. If the bankruptcy estate continues the pledgor s business, it is entitled to the pledged assets because no part of the pledge was earned by the pledgor prior to its bankruptcy. If (a) the pledged agreement is divisible, (b) the estate continues the pledgor s business and (c) the estate is unable to terminate the portions of the pledge already earned, the earnings principle divides the pledge into two parts: the pledgee will receive the part of the pledge earned prior to the bankruptcy and the bankruptcy estate is entitled to the part earned after bankruptcy. This study raises arguments against the contemporary view accepted in legal literature in relation to the pledging of future receivables. The contemporary view is to consider that the earnings principle is taken into account when the pledge is established. The view presented in this study is that the earnings principle does not come into effect prior to the execution phase of the pledge agreement. 2.4 Pledging of the project company s shares The shareholders of a project company usually pledge the project company s shares as collateral for the project loan. The study analyses in detail the problems related to the control function and the collateral function of a share pledge. The control function related to a share pledge affects the possession of the shares from the establishment of the share pledge to the enforcement of the pledge. The thorough examination of the parties risk positions serves as an interesting starting point. The section discusses how the composition of a project company s board of directors may affect the decisions the project company makes and the claw back of the company s pledge/mortgage agreements to the project company s bankruptcy estate. There are jurisdictions in which a project company s sponsors are unable to pledge the project company s shares to the banking syndicate as collateral for the project loan. In such jurisdictions, a floating charge as found in English law may prove a useful tool due to the fact that it covers all of a company s assets (including real property). In such cases, the floating charge would de facto have the same characteristics as a share pledge in terms of controlling the project.
  • Lohse, Mikael (Suomalainen Lakimiesyhdistys ry., 2013)
    From the terrorists perspective preparation and promotion of terrorist acts is designed to create suitable operational conditions and build momentum for the attack. From a counter-terrorism point of view criminalizing such activity broadens criminal liability towards the foreground, thereby making it easier to intercept the terrorists and derail their plots. During 2010 2011, 301 individuals were arrested in the EU for offences linked to Islamist terrorism. The reason for these arrests was either the direct preparation of attacks or the promotion of terrorist activity, including propaganda, recruitment and facilitation. The dissertation at hand thus touches upon a phenomenon which continues to pose a serious threat to the EU and its citizens. The subject is also legislatively topical in Finland. Both the new Police Act (872/2011) and the Acts on Criminal Investigation (805/2011) and Coercive Means (806/2011) which all enter into force on 1 January 2014 and the project led by the Ministry of Justice to draft a law criminalizing the preparation of certain aggravated offences are taken into account in this dissertation. The work focuses on sections 2, 4, 4a and 4b of chapter 34 a of the Penal Code of Finland. The main objective is to answer the following two questions: 1) where should the notions of preparation and promotion be positioned in general criminal law doctrine and 2) what are the constituent elements of the above mentioned criminal provisions? In addition, the notion of risk is thoroughly examined. The methods for investigating normative material include systematization, interpretation and internal comparison. Furthermore, the techniques of criminal law theory, such as operationalization and testing, are utilized in connection with the model construction of risk. Preparation, criminal attempt and criminal conspiracy are closely related concepts. Promotion, in turn, has similarities to aiding and abetting, participation in the activity of a criminal organisation and joint criminal enterprise. Another of the findings of the dissertation is that preparation and promotion of terrorist acts belong to the category of abstract endangerment offences. In the view of the author, most pivotal is the general contribution to the assumption-of-risk doctrine and, in particular the endeavour to fit the notion of risk into the context of terrorism.
  • Zhang, Liguo (IPR University Center, 2012)
    The interaction between IPRs and standards has lately raised growing concerns in the information and communication technology (ICT) industry. These highly controversial issues include industry standards embracing proprietary technologies, excessive royalties for the use of proprietary technologies, and the refusal to grant licenses for the use of proprietary technologies. This study examines the patent licensing practice in the ICT industry, the EU’s regulation on intellectual property licensing and standardization, aims to find out how best to balance standardization and access to essential patents. The study applies entitlement theory to examine the two traditional approaches to facilitating exploitation of patented technology. The market approach that suggests transaction can distribute technological resource to the one that value it most may not be effective because of the poor quality of patents in the industry and the high transaction costs resulting from the high fragmentation of technology and the use of patent for strategy purpose. The intervention approach that suggests applying compulsory license or rules of abuse of patent against patent holders may ignores right holder’s subjective valuation of rights and disrupt right holder’s plan to exploit the right based on that valuation, therefore the application of this approach is limited to only exceptional circumstances. Given that, the study suggests that a cooperative scheme that facilitates licensing of industry wide generally used technology, which mixes the market and intervention approaches, may be effective. Firstly, global patent explosion, the division of technology creation from technology implementation, the convergence of complex technologies, and highly standard-dependent in the industry lead to the problems. Industry wide cooperation is needed in dealing with these common problems. Secondly, standards and patents are not in contradiction inherently. Patent holders may favor standardization as a way to share its innovation with those who could commercialize and use the technology, and as an opportunity to reap the fruits of their R&D investment. Indeed both standards and patents serve a same purpose of promoting innovation. Therefore the cooperation may be desirable. A cooperative scheme may not only manage and share existing resources but also engage in producing those resources and encourage the creation of new resources in the future. Nonetheless this study finds that the collective action problems such as free riding, prisoner dilemma, which usually leads to non-corporation, are main obstacle for creating a cooperative scheme. To overcome these problems, standard setting and selection process can be improved in order to develop such a cooperative scheme. Moreover, fair, reasonable and non-discriminatory licensing conditions established in intellectual property rules of standard-setting organizations or in competition rules could be a flexible mean in creating an optimal arrangement to balance encouragement of individuals to contribute to standardization and encouragement of exploitation of patented technology.
  • Liukkonen, Iiro (Suomalainen Lakimiesyhdistys, 2012)
    The dissertation explores criminal proceedings in Finnish law which, after the accused person has been notified of the charges, are conducted in court without him or her attending in person, with the focus on why, i.e. for which reasons and for which aim, these simplified modes of procedure are made use of. The methodological approach is systematisation and interpretation of the statutory norms in the spirit of traditional legal methods, with input however from comparative law and hermeneutical philosophy. With a view to adversarial argument, it is commonly and, in particular in the case-law of the European Court of Human Rights, found appropriate that criminal accusations are normally tried in the presence of the accused where all the evidence is produced, enabling thus him or her to present evidence and comment and challenge the proof brought by the prosecution. Nevertheless, the accused person may waive, either expressly or tacitly, the guarantees of a fair trial and the right to be present in particular, provided that the waiver is unequivocal and does not run counter to any important public interest such as the public hearing of charges for grave offences. Furthermore, for the waiver to be effective, the accused should reasonably have foreseen what the consequences of his or her conduct would be, i.e. that there will not be any adversarial hearing. Consequently, the basic rule in Finnish law is the personal attendance of those charged for a criminal offence. Their attendance may be safeguarded, in line with ECHR case-law, by remand. In the stated objective of balancing the legal protection of the interests of the defence to be present at trial against an efficient case-management by the courts with regard to available resources, the law provides for two simplified modes of criminal proceedings, i.e. a trial in the absence of the accused and a written procedure. Whereas the trial in absence only follows from the accused remaining passive vis-à-vis the charges, the written procedure presupposes considerable activity from him or her: the offence has to be affirmed in the police investigation and again confessed to court in writing. Simultaneously, the accused shall sign an explicit waiver of his or her right to an oral hearing. Both of the procedures are only available for prosecuting minor offences that can be punished by a fine or a custodial sentence not exceeding three months in the proceedings in the absence of the accused and six months in the written procedure. In the written procedure, there is also a limitation that the offence may not in abstracto be punishable more severely than with up to two years imprisonment. The trial in absence is not subject to a similar restriction. Under specific conditions of explicit agreement of the accused person to be tried in his or her absence or, in the written procedure, after he or she has been given an opportunity to comment, the custody may be of three months more in each of the procedures. International comparison of the situation in a few European countries, namely Sweden, Germany, France and England and Wales, prove that similar kinds of simplified systems are frequently used for the same objective of rationalisation of the prosecution and sentencing. The decisive difference with adversarial proceedings being that the charges are decided solely on the basis of written material, the question is put whether this can produce as reliable evidence as oral testimonies. Hermeneutical thought, both Heidegger's and Derrida's, actually seems to suggest that writing is capable of transmitting truth with even more accuracy than personal statements. In spite of this discovery, it can be criticised that so shortly after a reform aligning in the 1990s Finnish procedural law on the principles requiring an oral procedure, immediacy and coherence, these to a large extent have been abandoned without a profound reflexion in a considerable part of criminal proceedings. An empirical study of cases decided in 2008 in some first instance courts namely confirmed that meanwhile about 60 per cent of all prosecutions in court are still tried in an adversarial process, one quarter in the written procedure and slightly below 20 per cent in the absence of the accused from trial. Since then, the written procedure has become even more commonplace in routine cases and now represents 35 per cent of all criminal cases dealt with by first instance courts. Somewhat surprisingly, not all the cases were decided in a purely routine manner: some defendants were found not guilty and witnesses were sometimes heard in the absence of the accused. De lege ferenda, I finally suggest that the scope of the various modes of prosecution and trial be redefined with more care to avoid both overlapping and also arbitrary boundaries in relation to purely summary proceedings such as fixed penalty notices on the one hand and full trials on the other. The two existing procedures might also be combined into one, trial in absentia with explicit consent. If guilty pleas are introduced in law in the future as is currently being envisaged, this certainly also has an impact on the rationalisation of criminal court proceedings globally and may induce new thought on the simplified procedures.
  • Castrén, Lalli (Suomalainen lakimiesyhdistys, 2012)
    This study examines the unbreakable limit of liability of an air freight carrier, an important departure from general contract law principles unique to air law. An unbreakable limit of liability is a monetary limitation of liability originating in an international convention, which cannot be broken even when the damage has been caused intentionally or recklessly and with knowledge that damage would probably result. The breakability of limitations of liability can be traced back to Roman law, and can be described as a significant principle common to the whole of Europe. The unbreakable limit is examined first in the context of general contract law, taking into account the criticism leveled at the intent/gross negligence sabre normally accepted for piercing limitations of liability. Secondly, the development of air transport law conventions, namely the Warsaw and Montreal conventions, is examined to discover why such a radical decision was reached precisely in this system. Since the conventions, in nearly unique fashion, cover both the transport of passengers and cargo, the reasons why it only entered into force internationally for cargo, and not also for damage caused to passengers as originally envisioned by its drafters, should be examined. The discussion and legal and practical argumentation leading to the adoption of the convention are covered in as much detail as possible. The reach of the unbreakable limit also deserves special attention. While, in theory, limited simply to transportation by air, the scope of the Montreal convention may possibly extend its reach into other forms of transport, nominally governed by other conventions and national legislation with differing limits and liability systems. Some of this supplementary or conflicting legislation is of European origin, which is why the role of the European Union vis-à-vis air and transport law is also examined. Past EU legislation and jurisprudence represent significant threats or opportunities, depending on one s viewpoint towards the unbreakability of the limit. Fundamentally, the unbreakable limit of liability is the result of a convoluted international political process, characterized by an almost complete focus on the carriage of passengers, with the cargo rules generally only following on as an afterthought. Specifically, it is not unreasonable to describe the limit as a convention-based rule for the division of the parties duty to insure the cargo, with the limit representing the maximum insurance coverage required by the air carrier, thus leaving it to the consignor to either procure additional insurance or contract a higher limit of liability from the carrier, if needed.