Browsing by master's degree program "Magisterprogrammet i internationell affärsjuridik"

Gambling is not a new societal phenomenon. Because of the special nature of the industry, it was excluded from the application of the Treaty rules. Since gambling services are increasingly consumed online, Member States have struggled with protecting consumers from the harmful effects of gambling, especially when gambling legislation is not harmonized in the Internal Market of the EU. While gambling services have been excluded from the Treaty, recent case law has considered online gambling to be subject to the Treaty. Consequently, legislators have strived to settle other ways to channelize the gambling consumption to safe and controlled gambling platforms. Since advertising aims to stimulate the consumption of a good or service, legislators consider it as a suitable steering tool, especially when the Treaty prohibit restrictions to the free movement of goods and services, unless restrictions are made for consumer protection or fraud prevention purposes. Most Member States therefore moderate gambling advertisement. Because the industry is not harmonized, gambling legislation varies among Member States. Even if the industry is not regulated by sector specific revaluation, it is subject to secondary legislation. Consequently, Member States gambling legislation is insufficient and therefore often leaves room for interpretation. Gambling services have always been extensively advertised world-wide and is often perceived as aggressive. Since the effect of gambling advertisement has not been established, it is questionable if it is suitable for channelization. By analyzing current gambling legislation of Member States, the study strives to establish an understanding of how gambling advertising is used in the Internal Market and to determine if advertising is an appropriate tool for gambling channelization. It also strives to establish if gambling advertisement in fact falls under the category aggressive marketing practices. This is a legal dogmatic study, which also include some comparative elements. The study is also influenced by the subjective view of the author. Main findings of the study are that gambling legislation varies among Member States and therefore it is challenging of Member States to ensure a high level of consumer protection when it comes to gambling services provided in the Internal Market. Because the effect of excessive gambling advertisement has not been established, the study suggests three alternative means of channelization. First suggestion is to harmonize the gambling industry by introducing sector specific minimum legislation, which would minimize the need for channelization. The second suggestion, is to implement geo-blocking mechanisms, to prevent consumers from entering unauthorized providers services. Even if the Treaty rules prohibit restrictions to the free movement of goods and services in the Internal Market, such measures can be considered appropriate on the grounds of consumer protection. Especially when gambling services currently are excluded from the Service Directive and therefore also the geo-blocking directive. The final suggestion, is to introduce stronger sanctioning power for supervisory bodies and to increase cross-border enforcement of law. Such incentive is also in line with current legislative incentives. However, it would be most suitable as a complement to another restrictive measure, e.g. geo-blocking. Increased supervision and enforcement, would also be recommended since the supervision of the industry currently is quite fragmented. Especially supervision of gambling advertisements is preferable, e.g. by implementing pre- and post evaluations of gambling advertisements. Because of the excessive nature of gambling advertisements and the fact that its effects have not been established, it is recommended that other ways to steer the gambling consumption to controlled platforms, are established. The study recommends the use of either harmonization of law or the use of geo-blocking mechanisms, whereas increased supervision and stronger enforcement of law can function as a suitable complement. Further research in the area of gambling advertising regulation is recommended.

Ubiquitous digitalization and advancement of technology led to a tremendous shift in regulation of copyright in the European Union over two last decades. New reality poses new challenges for the collective management organizations and traditional way of their operation. Through conceptual analysis of framework for regulation of copyright operation of collective management organizations in the EU this research seeks to find how futureproof they are as a legal institute.

This thesis proposes new EU legislation to bridge the gap between current European cybersecurity regulation and enterprise operational technologies. Considering the fast development and expansion of technologies within our society, our legal thinking and the adoption of protective measures in the form of new EU legislation is paramount, if not critical, in order to sufficiently protect the operations and undisrupted contingency of critical infrastructure’s enterprises, our digital service providers, and the services provided by our essential operators. The EU Cybersecurity Act, Network and Information Security Directive, the proposed revised NIS2 Directive, and the European Union Agency for Cybersecurity (ENISA) are the foundation of tomorrow’s digitized and secure Europe. However, they exclude the technologies closest to the core manufacturing and service-production of an enterprise: the operational technologies solutions. The main questions of this thesis were whether a sufficient layer of mandated cybersecurity protection for connected enterprises and digital infrastructure exists, how small operational technologies solution vendors and digital service providers could be required to take responsibility for the cybersecurity of their solutions, and why does the proposed legally required framework for operational technologies matter. The legal and technical analysis concludes that the principle of security by design is not widely adopted within modern digitized enterprises, which sets a poor basis for the Single Digital Market. Currently, the burden of executing a well-managed enterprise security office lies on the shoulders of the enterprise’s CIO and CISO officers. IT leaders lack a steering certification framework that sufficiently covers the complete IT environment with security principles and actionable requirements. This thesis proposes that operational technologies are included in the next scope of the next revision of EU cybersecurity legislation. The elements of the proposed framework would help in protecting European connected enterprises, and to support EU in achieving high-level cybersecurity cooperation and protection within the European Digital Market. This thesis could be utilized in the drafting of the candidate cybersecurity certification scheme EUCC. The aimed readership includes EU’s legislators, and executives that work with enterprise technologies, digital infrastructure, and cloud-native technologies.

Online platforms have become a major actor in the EU Digital Single Market. They offer a wide range of services, such as social media and streaming services. The platform economy is in general perceived to have high growth potential in Europe. Despite the popularity and growth potential of online platforms, their regulation in the EU is fragmented. Online platforms are regulated on the EU level through, inter alia, the Electronic Commerce Directive. In addition, they might also be subject to regulation on a national level and in some cases, even on a local level. This fragmentation of the regulatory framework has resulted in an uncertainty of the applicable rules. addition, the regulatory environment of the EU is not favourable for online platforms to scale and develop in, which in turn has stifled innovation. The European Commission has addressed this issue in its various initiatives. As a response, it will publish a draft proposal on the new Digital Services Act in the fourth quarter of 2020 that will modernise the legal framework for online platforms. The purpose of this thesis is to examine how online platforms should be regulated on the EU level in light of the new Digital Services Act. This research is divided into two separate research questions: - How has the approach of the European Commission towards the regulation of online platforms evolved since 2015? - What kind of regulatory model should be adopted for the regulation of online platforms in the context of the upcoming Digital Services Act of the EU? In the first part of this research the author provides a background on the existing legislative framework applicable to online platforms. Policy papers by the European Commission are analysed in order to study its approach towards the issue. In the second part, the characteristics of different regulatory models are examined and their suitability for the regulation of online platforms in the context of the EU is analysed. The scope of research is narrowed down to the regulatory models of top-down regulation, co-regulation, self-regulation, transferring powers to existing regulatory authorities and creating a new centralised regulatory authority. Regarding the first research question, this study finds that the Commission has had an inconsistent approach towards the regulation of online platforms. It has highlighted the importance of platforms and their regulation but has avoided introducing concrete proposals until the Digital Services Act. Regarding the second research question, this study finds that online platforms are a new dynamic business model that top-down regulation is too inflexible to regulate. Taking into account the characteristics of online platforms and the division of competences in the EU, this study recommends co-regulation for the regulation of online platforms.

In the last two years, the world has been controlled by Covid-19 imposed travel restrictions, lockdowns and social distancing guidelines. Especially in the beginning of the pandemic, court proceedings temporarily came to a halt or suffered significant delays. Contrary to this, in arbitral proceedings, there has been a seamless transition from in-person to remote hearings. Remote hearings are flexible and efficient, but their compliance with procedural principles in arbitration has been called into question and intensely discussed by arbitration professionals. Despite Covid-19 restrictions currently being lifted in many countries, it is possible that remote hearings will become the “new normal”, i.e. the standard procedure in arbitration. This raises the question whether the use of remote hearings as the new default procedure would be in line with procedural principles or if on the contrary remote hearings should only be used occasionally. In order to answer this question, this thesis examines remote hearings together with procedural principles applicable to arbitral proceedings. More importantly, it contains an in-depth analysis of relevant case-law, which helps understand the relationship of remote hearings and procedural principles. The main conclusion that can be drawn is that remote hearings are generally in line with procedural principles, if planned well and conducted without technical difficulties. Possible downsides to remote hearings are outweighed by the many advantages that remote hearings bring to arbitral proceedings, especially flexibility and efficiency. Therefore, if certain safeguards are respected, nothing is standing in the way of remote hearings becoming the “new normal” in arbitral proceedings.

Abstract The “mediation paradox” means, that the benefits derived from mediation use are well acknowledged but are not well known. The key disadvantage of international commercial mediation and settlement agreements has been the lack of an effective system of recognition and enforcement. To address this matter, The United Nations Commission on International Trade Law (UNCITRAL) has created new instrument for promoting mediation as an effective method of resolving international trade disputes; United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Singapore Convention on Mediation). It applies to international settlement agreements resulting from mediation, concluded by parties to resolve a commercial dispute. As a binding international instrument, it is expected to promote the international mediation. As the Convention is a new mechanism, it is appropriate to consider the diverse practical issues emerging from the Convention. In particular, it is important to minimize the risk of an enforcing court taking objection to a settlement. This thesis addresses the Article 5, the grounds upon which a court may refuse to grant relief at the request of the disputing party against whom it is invoked. Article 5 sets out an exclusive list of grounds upon which a member state can refuse to recognize and enforce a settlement agreement. The main focus here is given on the art. 5 (2) (a); refusing relief on the grounds of public policy. Is the public policy exception still necessary in the era of Singapore Convention? In the European instruments, the public policy clauses are a ground for the non-recognition of a foreign judgement and for the non-application of foreign laws. In practice, public policy is often invoked but seldom applied. In procedural law, the difference between substantive and procedural policy is recognized, and the procedural public policy is much more often invoked and applied that substantial public policy. Can there still be found a justified space or a rational demand found for the confusing concept of substantial public policy? To answer this question, the approach of this study is multi-diciplinary. The legal doctrine serves a an tool for the systematization of the legal order by means of legal concepts and the interpretation of the legal order by means of exploring their substance. The approach is of particular importance also when discussing the core research question, weather the demand and justification for a substantive public policy- exception still excistis in the era of Singapore Convention. Systematization of the various interpretations of the concept is necessary in order to organize these provisions into a conclusion. To answer the core question of this study, the primary tool for organizing the various aspects and impacts of the concept public policy-exception is Tuori´s theory of the multilevel nature The Singapore Convention entered into force on 12th Sep 2020 and, it will apply to mediations conducted anywhere in the world, not just within jurisdictions that have ratified it. This is because, unlike most other enforcement treaties, it does not operate on the basis of reciprocity between contracting states. The frames of this thesis are set within the European legal order, but many of the doctrinal questions on principles are no doubt global. The Convention is global.

Offshore wind has received heightened attention in recent years, both from regulators as well as developers eager to participate in the European electricity market. At the regulatory level, wind offers partial independence from traditional energy sources as well as contributes to meeting commitments given pursuant to the European Green Deal and the Paris Agreement. Concurrently, at the market level, developers are eager to find a profitable commercial model for offshore wind parks, graduating annually to bigger and more powerful turbines and deeper water depths. While the market is facing pressure to speed up development, it is being hampered by lack of contracting solutions available for such offshore construction projects. Various templates exist, such as the FIDIC model forms developed for onshore construction projects, and the IMCA and LOGIC standard forms meant for offshore works. However, none of these has been specifically developed for EPCI model offshore construction project and consequently, there are potential pitfalls that may challenge the efficiency of having used a standard form contract to begin with. This thesis considers the role of standard form contracts within the wind industry generally and the efficiency they can offer when used correctly. At the core, they facilitate efficient exchanges in the market. However, should they be used incorrectly, the rationale for their utility is challenged. This thesis takes a closer look at FIDIC Yellow Book, an onshore construction contract model, and highlights a number of areas that need further consideration before it is adopted on a large scale by the wind industry.

This thesis examines the principle of the Brussels Effect and its impact on privacy law and regulation between the EU and the US. The thesis explains how the Brussels Effect is the premise that the rules and regulations originating from Brussels have penetrated many aspects of economic life both inside and outside the EU through the process of “unilateral regulatory globalization”. It is argued that the US simply cannot afford to bypass the large internal market of the EU, and this gives US companies and regulators the incentive to conform with these EU standards. Furthermore, when it comes to global data transfers the EU primarily regulates an “inelastic” consumer market, which cannot simply be avoided or diverted to another jurisdiction due to the GDPR’s extraterritorial scope. Although a Brussels Effect clearly exists, this does not mean that it always results in compliance and the protection of data subject rights in daily practice. This proposition is supported by analysing a data subject complaint filed against Airbnb and by considering Article 22 of the GDPR, including the regulation of automatic decision making and profiling technologies. Ultimately, Schrems II and its finding which were reflected in the Trans-Atlantic Privacy Framework, are analysed to support the argument that the Brussels Effect is still operating strongly but its real impact can only be assessed after the Trans-Atlantic Privacy Framework has been implemented and operating in practice for a sufficient period.

Tiivistelmä – Referat – Abstract Gambling is a staple in cultures around the world. As society and technology evolved, so did gambling – going from brick-and-mortar venues to mobile applications. However, gambling is a service that is currently not subject to harmonization within Member States of the European Union. This makes for a very different set of rules on how to regulate gambling, especially its online gambling category and the steps gambling operators have to take to ensure that its services are, and remain, a safe environment and also protect children and other vulnerable persons. This work will analyze online gambling, but only through the lenses of its marketing effects on children and how different Member States (or former Member State in the case of the United Kingdom) approach the matter. The aim is to find out if there is currently a system capable of successfully achieving the protection of children on its marketing regulations. Besides issues concerning consumer law, gambling also has a direct effect on the protection of children – a core value of the European Union. In Chapter 1, the goal and reasons for this study will be introduced, as well as the methodology chosen to conduct this research. Chapter 2 will look back to the origins of Gambling, how it became a legitimate business and set out the current gambling scenario in the European Union. Chapter 3 will analyze the types of marketing used by online gambling websites and how children interact with advertisement in general and how they are firstly introduced to gambling. Following on Chapter 4, the duality between children’s right and gambling will be examined. In Chapter 5, a comparison between the current regulations set out by Malta, Sweden, and the United Kingdom will be made, and Chapter 6 will bring examples of decisions by advertisement agencies that upheld citizen’s complaints for being aimed at children. Chapter 7 evaluates new features in videogames that could be equal to gambling and how the European Union is dealing with it. Followed by a quick look into the additional protection for gamblers due to the COVID-19 pandemic. Finally, taking everything into account we recommend that at least in the respect of protection of children (especially via marketing) gambling should be harmonized in the Internal Market, and proposes a hybrid model taking the best parts of the regulations examined in this study. However, further research is recommended.

Maisteritutkielmani aiheena on sopimusneuvottelujen rooli osana sopimusten tulkintaa. Tutkielmani ydinkysymyksenä on pohtia sopimusneuvottelujen roolia Pohjoismaisessa tulkintaopissa sekä Englannin tulkintaopissa. Tutkielman tarkoituksena on ensiksi luoda yhteinen kehikko Pohjoismaisesta tulkintaopista, jotta sen avulla voidaan tarkastella sopimusneuvottelujen roolia Englannin tulkintaopissa. On tarkoituksenmukaista tarkastella tulkinnassa käytettäviä metodeja, prosessia sekä tulkinnan tarkoitusta, koska ne muodostavat lähtökohdan sopimusneuvottelujen asemaan Pohjoismaissa. Sopimusten tulkinta on laaja kokonaisuus, joka toteutetaan laajan tulkintamateriaalin pohjalta. Tutkielmani perusajatuksena on tutkia sopimusneuvottelujen roolia muun tulkintamateriaalin osana, jonka vuoksi on tärkeää nostaa esille muut Pohjoismaissa käytettävät sopimuksen ulkopuoliset tulkintamateriaalit (kontekstimateriaali). Kontekstimateriaalilla on pohjoismaissa olennainen osa sopimusten tulkinnassa erityisesti, kun tarkoituksena on määritellä sopimusosapuolten yhteinen tahto. Muu sopimuksen ulkopuolinen tulkintamateriaali nostaa esille sopimusneuvottelujen roolin osana tulkintaa käytettävää materiaalia. Toiseksi tutkielmani tarkoituksena on tarkastella Pohjoismaisen oikeuden ja Englannin oikeuden eroja sopimusneuvottelujen osalta. Englannin tulkintaoppi rajoittaa tulkintamateriaalin objektiiviseen materiaaliin ja sulkee ulkopuolelle erityisesti sopimusneuvottelut ja subjektiiviset elementit. Tutkielman tarkoituksena on avata Englannin tulkintaopin sääntelyä sopimusneuvottelujen osalta sekä tuoda esille eroja ja yhtäläisyyksiä sopimusneuvottelujen roolista Pohjoismaisessa tulkintaopissa sekä Englannin tulkintaopissa. Pohjoismaisen sopimusten tulkintaopin ja englannin tulkintaopin erona voidaan erityisesti havaita lähtökohta osapuolten tarkoituksen määritykselle. Pohjoismaisessa tulkintaopissa voidaan käyttää laajasti eri kontekstimateriaalia osapuolten tarkoituksen määrittämiseksi, kun taas englannin tulkintaopin tarkoituksena on selvittää osapuolten tarkoitus objektiivisesta näkökulmasta ja rajoittuu lähinnä itse sopimukseen. Tutkielman lopulla esitetään pohdintaa siitä miksi sopimusneuvottelut ovat Englannin tulkintaopissa rajattu tulkintamateriaalin ulkopuolelle. Olennaisen syyn muodostavat Englannin tulkintaopissa käytettävä erilainen tulkintametodi sekä erilainen tulkinnan tavoite. Pohdintaa esitetään myös siitä, miten sopimusneuvotteluja voidaan hyödyntää Pohjoismaisesta näkökulmasta objektiivisen tulkintametodin rajat huomioon ottaen.