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Browsing by master's degree program "Master's Programme in International Business Law"

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  • Chillemi, Cristopher (2016)
    The research focuses on the roles and responsibilities of online intermediaries in respect to illegal content uploaded by their users. Online sale of goods infringing intellectual property rights (IPR) will be the main topic of the research. European legislation on the responsibility of online intermediaries established the so called “safe harbour” shielding intermediaries from liabilities for the conduct of their users. This system allowed internet companies to thrive but at the same time it is exploited by some users to abuse IPRs. During the last decade and a half many legal and non-legal researchers have looked at how intellectual property owners fight back against illegal content. In practice, notices of infringements are sent to online intermediaries requesting to takedown the infringements. The latter should respond quickly to maintain their legal immunity. This extrajudicial system causes various hazards and as main critics claim it also lacks transparency and accountability. Information on procedures, notices and decision making by online intermediaries operating marketplaces are not publicly disclosed. Within this context the research first looks at main weaknesses of the current legal framework, and then investigates how policy makers could change notice and takedown procedures to safeguard all competing interests. Information gained by the author’s direct experience in protecting IPRs on online marketplaces will be used to help propose a possible new legal classification of infringement notices and their requirements.
  • Falck, Andrea (2019)
    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.
  • Heikkilä, Siiri (2019)
    It is general industry practice to attach penalty and liquidated damages clauses to, for example, construction and supply contracts as well as non-compete clauses and confidentiality or non-disclosure agreements. The subject matter of this research project is the use and treatment of such penalty and liquidated damages clauses under Finnish and English laws. Contract terms constituting penalty and liquidated damages clauses are generally enforceable under Finnish law, while English law distinguishes between unenforceable penalty clauses and enforceable liquidated damages clauses. Therefore, the objective of this research project is to, through an examination and comparison of the subject matter, rethink penalty and liquidated damages clauses by looking past the enforceable/unenforceable divide, as it may not be as explicit as seems. Three points are made regarding the acute practical relevance of the subject matter: pervasiveness; balancing of interests in contractual relationships; and, not least, legal certainty. This research project contains seven chapters. Each chapter is built upon the discussion in the preceding chapters, rendering the structure both logical and methodologically viable. Chapter 1 introduces the subject matter, objectives and rationales for the carrying out of this research project as is. Chapter 2 describes, in brief, the methodological choices made over the course of this research project. The first substantive chapter, Chapter 3, presents the legal nature, functions and classification of penalty and liquidated damages clauses to facilitate their examination and comparison. Chapters 4 and 5 examine the use and treatment of penalty and liquidated damages clauses under Finnish and English laws respectively. Chapter 6 compares the use and treatment of such clauses under both approaches through an attempt to, if not answer, at least review each of the research questions set out in Chapter 1. Chapter 7 concludes. Functional comparative law methodology was chosen for the examination and comparison of the subject matter because of interest are particularly the prevailing solutions to the balancing of interests in contractual relationships, an exercise that arises when judges engage in the interpretation of contract terms. Such exercise entails, for example, the weighing of pacta sunt servanda and the principles of individual autonomy and freedom of contract against weaker party protection. Therefore, on one hand, the Finnish and English law approaches each recognize the intention of the parties to a contract as the starting point for the interpretation of contract terms. On the other hand, both approaches have in place a legal rule or practice that ensures weaker party protection. Under Finnish law, penalty and liquidated damages clauses are subject to review by judges under the adjustment mechanism set out in section 36 of the Finnish Contracts Act, while under English law, the same is possible under the penalty rule.
  • Bakanov, Vladislav (2021)
    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.
  • Salonen, Satu Meri (2022)
    Objectives and theory. Competition means of competition and competitive advantage – when delivering in the EU internal market – create the map of research and its red thread. The purpose of the study is to determine the components of a genuine competitive advantage and to identify opportunities for further development. Background theories are EU Competition Law (especially Articles 101 and 102 TFEU), Law and Economics (the effectiveness of the law and the means of competition), Consumer Law (the status of consumers and the safeguarding of their rights) and Philosophy of Law (background values and ethics of activity). Research questions are: How to find and determine the factors of a genuine and developable competitive advantage? How can a genuine competitive advantage that can be further developed be achieved through permitted and profitable means of competition? Methodology. The research approach was mainly qualitative, quantitative played a supporting role, in connection with examples and material. It was a hermeneutic study, and the methods were interpretation, argumentation, specification, and reasoning; in addition, forensic science played a part in efficiency assessment. The study progressed from more general to more private, from competition to competitive advantage; from a potential competitive advantage to a further competitive advantage – a permitted, profitable, genuine, and further competitive advantage were reviewed. The study was conducted in theory (written law, regulations, guidelines, rules, scientific research, and other relevant literature) and in practice (business examples and case law). Results. A genuine competitive advantage arises from a combination of the admissibility and profitability of a means of competition. Genuine and further competitive advantage complement each other. Genuine competitive advantage is enshrined in law and has an economic impact on the business, the consumer and society. The existence of a genuine competitive advantage in the context of the 8P competitive means of marketing can be determined in theory and in practice. The competitive means of 8P marketing can be ranked based on their overall goodness based on theory and practice. According to this study, the order is product (t), physical environment (p), process (t), place (t), price (p), promotion (t), personalization (p) and people (t) (stronger perspective of the means of competition, t = theory and p = practice). Furthermore, the simultaneous use of several means of competition leads to better results than the use of a single means of competition. Conclusions. All 8P competition tools for marketing are both genuine and evolving. When examining the overall goodness of the means of competition, most of the means of competition prove to be better in theory than in practice – there is an order for the development of activities in the market. In all reviews, there is room for improvement in the means of competition, both in theory and in practice. The interpretation is based on the four theoretical perspectives of this study, the empirical partition, and the examination of the competitive means of 8P marketing in the light of their historical development.
  • Nuorti, Viivi (2016)
    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.
  • Bhardwaj, Shivam (2020)
    The banking and financial sector has often been synonymous with established names, with some having centuries old presence. In the recent past these incumbents have been experiencing a consequential disruption by new entrants and rapidly changing consumer demands. These disruptions to the status quo have been characterised by a shift towards adoption of technology and artificial intelligence particularly in the service and products offered to the end customers. The changing business climate in the financial sector has risen many convoluted questions for the regulators. These complications cover a vast set of issues – from the concerns relating to the privacy of data of the end users to the increasing vulnerability of the financial market, to unproportionally increased compliance requirements for new entrants, all form part of the mesh of questions that have arisen in the wake of new services and operations being designed with the aid and assistance of artificial intelligence, machine learning and big data analytics. It is in this background that this Thesis seeks to explore the trajectory of the development of the legal landscape for regulating artificial intelligence – both in general and specifically in the financial and banking sector, particularly in the European Union. During the analysis, existing legal enactments, such as the General Data Protection Regulation, have been scrutinised and certain observations have been made regarding the areas that still remain unregulated or open to debate under the laws as it stands today. In the same vein, an attempt has been made to explore the emerging discussion on a dedicated legal regime for artificial intelligence in the European Union, and those observations have been viewed from the perspective of the financial sector, thereby creating thematic underpinnings that ought to form part of any legal instrument aiming to optimally regulate technology in the financial sector. To concretise the actual application of such a legal instrument, a European Union member state has been identified and the evolution of the regulatory regime in the financial sector has been discussed with the said member states’ financial supervisory authority, thus highlighting the crucial role of the law making and enactment bodies in creating and sustaining a technologically innovative financial and banking sector. The themes recognised in this Thesis could be the building blocks upon which the future legal discourse on artificial intelligence and the financial sector could be structured.
  • Juonala, Oona (2020)
    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.
  • Calderón, Aparna (2020)
    Tiivistelmä – Referat – Abstract Post the financial crisis of 2008, European Union has introduced a plethora of laws to reform the financial system and make it further resilient. While the crisis led to financial reforms that have created heavy load of compliance, it also created a field for innovation led financial services called Fintech. In the post-Covid-19 era, the need for financial institutions and supervisors to speedily and efficiently deal with compliance has become more pronounced, as they brace for the impact of pandemic and focus on other critical tasks. The combination of regulatory compliance load on one side and innovation on other side have made the role of AI critical to regulatory compliance and supervision. On this premise, the thesis discusses existing role of AI and the challenges in successful deployment of AI where it can be scaled to exploit all its abilities. The challenges in deployment of AI are two fold – one that relate to its role in compliance with financial governance framework including AML, PSD2, MiFID II and GDPR etc. requirements, and other that deals with the role of AI within compliance procedures such as reporting, following up with regulatory requirements and policies etc. The discussion aims to identify the gaps in technology such as black box problem and inductive bias in AI, as well as regulatory framework that hamper the deployment and exploitation of AI in compliance and supervision of financial institutions. At the same time, innovations such as RegTech and SupTech enable AI to provide fast solutions to banks, Fintech and supervisory authorities. The technological and regulatory challenges of AI are identified by doing empirical research and applying legal dogmatics, as well as considering socio-economic factors affecting the financial industry. The discussion also notes the vision of a Digital Europe and how the recently announced policy discussions such as the AI strategy, Data Strategy, Cloud Initiative, Digital Finance Strategy etc make a profound impact on the gaps identified, but also leave exposure to other possibilities such as lengthy process of adoption, implementation and testing of these policies. The discussion concludes that successful adoption of the proposed laws, provisions for financial industry in the AI strategy and new and innovative methods such as data ethnography can together solve the technological and regulatory challenges identified as hinderance to scaling up AI role in regulatory compliance.
  • Onimus, Louise (2022)
    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.
  • Frolova, Ekaterina (2020)
    The Research aims to study the notions of responsibility and liability of controllers and processors and their development that led them to the current status under the GDPR. The Research will also evaluate the importance of the changes in business practices, whether the transmission to the GDPR regime was easy, and whether it was fully completed. The First Chapter of the Research studies the development of data protection legislation at the national and international levels, as well as the main points about data protection law in the EU, focusing is on the development of the responsibility and liability of controllers and processors. In the Second Chapter, the Research studies the approaches to the responsibility and liability of controllers and processors in the EU in detail. The provisions of the GDPR will be explored in comparison with the DPD, and the main changes for controllers or processors are discussed. In the Third Chapter, three recent cases related to non-compliance of different types of controllers: a public authority, a legal service provider and a retailer. This chapter studies the actual examples of challenges of the controllers and their consequences. The Research found that in any period of the development of legislation and at any level, the controller remained primarily responsible and liable, even when the concept of the processor was formed under the DPD. Even though the GDPR introduced several duties that aimed at both the controller and processor and those that were targeting the processor specifically, the existing available practice mainly concerns the controller. The Research also showed that there is still a need to improve the controller’s compliance with the obligations imposed under the GDPR.
  • Friman, Marianne (2020)
    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.
  • Vergara, Javier (2023)
    In my thesis, I explore the roles and responsibilities of software developers as data controllers under the General Data Protection Regulation (hereinafter ‘GDPR’), focusing on the complexities arising from centralised and decentralised software development processes. I address two research questions: (i) taking into account the factors and considerations specific to centralised and decentralised software development processes, how can the roles and responsibilities of software developers as data controllers be determined under the GDPR? and (ii) how may the unique features of Decentralised Applications (hereinafter ‘dApps’) influence the assignment of data controllership in the context of the GDPR? To answer my research questions, I first start by establishing a comprehensive understanding of some relevant core concepts: data controllership, software development, and the varying levels of centralisation in software development. Thereafter, I analyse the roles of individuals within Software Development Companies, SDAs, open source projects, dApps, and smart contracts. In centralised development, assigning controllership is more straightforward, but some complex situations like joint controllership may arise in certain cases. Decentralised software development processes, like in open source projects, complicates the determination of data controllership due to dispersed decision-making across various roles. Examining these roles and different project categories helps to better understand potential data controllership allocations. Furthermore, I discuss specific challenges in determining data controllership in dApps and smart contracts. The totally decentralised nature of dApps and the immutability of its source code further complicates things when trying to identify a single entity with control over the processing of personal data. Additionally, establishing accountability (which is a cornerstone of data controllership), is difficult without control. Currently, no definitive guidance on this matter exists, suggesting that additional legislation may be needed to address the intricacies of decentralised systems within the context of the GDPR. Throughout my thesis, I emphasise the importance of a case-by-case analysis for determining data controllership, and provide insights into potential assessment outcomes. Overall, my research serves as a foundation for understanding software developers’ roles and responsibilities as data controllers in various development processes under the GDPR.
  • Kirk, Liis (2023)
    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.
  • Vlodder, Albert (2021)
    The codification of the law of the sea at the third United Nations Conference on the Law of Sea (UNCLOS III) was a significant development within that body of law. With it came the establishment of a sui generis area in the seas named the Exclusive Economic Zone (EEZ). Each coastal state can establish an EEZ up to 200 nautical miles from the baseline of which its territorial sea is measured. Within the new zone, the separation of activities that belong under the freedom of the high seas took place. Sovereign rights and jurisdiction over such activities as fishing, erecting artificial installations and marine scientific research were attributed to coastal states. While traditional freedoms of the high seas, such as navigation, were assigned to flag states. The attempt to create a compromise represents the latest solution to the classic conflict between the free sea (mare liberum) and the closed sea (mare clausum). However, making a new zone between the high seas and the territorial waters of coastal states left legal ambiguity with activities that are not explicitly attributed to the coastal state or the flag state. Two of those unattributed activities are bunkering and ship-to-ship transfers. The uncertainty involving the two activities has created disputes which have found their way to the International Tribunal for the Law of the Sea (ITLOS). In the cases of the M/V “Saiga” and M/V “Virginia G,” the activity of bunkering foreign fishing vessels was adjudicated at ITLOS. The three options available to the Tribunal were to attribute bunkering to the coastal state, the flag state, or deciding the activity based on equity. In M/V “Saiga,” ITLOS used judicial restraint and refused to settle the issue of bunkering, despite the request of both parties. However, the situation in the case of M/V “Virginia G” required a decision. Through arguments using the text of UNCLOS and the practices of coastal states, ITLOS decided the bunkering of foreign fishing vessels to be under the jurisdiction of the coastal state due to a connection with fishing. Bunkering in all other instances and arguments based on marine pollution were not considered. Currently, before ITLOS is the case of the M/T “San Padre Pio.” The unattributed activity of conducting a ship-to-ship transfer within the EEZ of a coastal state will be decided. An analysis of the argumentation utilized in earlier cases was used to predict the outcome of this dispute. The Tribunal will likely find a solution based on incompatible laws and will not have to categorize ship-to-ship transfers, thus leaving the activity’s attribution unsettled.
  • Xiang, Anqi (2021)
    This thesis focuses on the choice of law rules in a transnational employment contract. The research object is the new law published in China in 2010, which will be provided an observation on the law content, empirical research on the implementation and practical issues in China, and a comparative study of the rules in the EU to provide potential helpful suggestions on improving the choice of law rules in China. In the disputes arising from the employment relationship which has foreign factors, e.g., foreign employers, foreign workers, posting workers overseas, etc., the applied law to the case is one significant issue in the field of private international law. Such rules in China were not unified in law until the establishment of the Law of the PRC on the Laws Applicable to Foreign-related Civil Relations (LAL). However, the empirical research shows that although the transnational employment contract disputes in China increase in the last decade, the implementation of LAL still meets obstacles from the courts’ lack of attention to the foreign-related factors, poor knowledge of using LAL appropriately, etc. Besides, the flaws of law content, e.g., obscure terms, no specific distinguishment from the collective agreements, controversial understanding of mandatory provisions, lack of party autonomy and practical use of closest connection principle, etc., lead to academic concerns. With a comparison of such rules in the EU, some suggestions are provided, for example, allowing the party’s choice, which could be limited by introducing objectively applicable law; clarifying the obscure terms, e.g., working place, business place, etc.; putting the closest connection principle in a practically useful position; etc. However, due to the current obstacles, some suggestions may not be accepted currently. Besides, with many important external factors, e.g., the impact by the new PRC Civil Code, the One Belt One Road Initiative, the Covid-19, etc., the improvement of the choice of law rules in China is necessary and would meet more challenges in the future.
  • de Prince Rasi, Beatriz (2021)
    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.
  • Zhakhina, Saltanat (2019)
    The purpose of the thesis is to assess the compatibility of the business model of providing free online services in exchange for processing of the personal data for advertising purposes, in particular for the Online Behavioural Advertising purpose, with the GDPR. Online Behavioural Advertising is a main way through which the free online services are funded. At the same time large-scale personal data collection and intrusive profiling, the controllers engage into pose significant risks for the rights of the data subjects. Empirical findings show that the companies using such business model oftentimes collect large amount of personal data in violation of GDPR. In addition, the researchers highlight the power asymmetries between the large online platform and the data subjects. Therefore, whether such a business model is compatible with the GDPR from legal perspective is of a particular importance. The first part of the thesis focuses on the lawfulness of the existing data collection practices in the context of the business model in question. The second part of the thesis discusses the profiling and data sharing in the context of such model and the third part focuses on the principles of the data protection by design and by default. The mentioned legal provisions are analysed with the focus on their compatibility with the business model in question. The research found that the business model seems to be compatible with the GDPR in a sense that it is in principle possible to comply with its requirements for the controllers. Such a compliance however would likely lead to a decrease in revenue for the controllers who relied on unsuitable legal basis or who manipulated users into giving away more PD. At the same time such a compliance still would not give the effective protection to the data subjects’ rights due to the lack of more explicit, precise and specific rules in GDPR.
  • Kujala, Sofia (2022)
    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.
  • Peltoniemi, Josetta (2021)
    With the rise of globalisation, international trade has increased. As a consequence, cross-border contracts have become more frequent which has led international commercial actors to use a common style when drafting contracts. The world has many different legal cultures and traditions, as a result of which legal concepts are tied to different assumptions, presuppositions, legal procedures, languages, ideas and social and cultural contexts. Further, the values and norms of these cultures have long historical ties. These different cultures have influenced national contract drafting style and contract law and, in the context of international contracts, they have influenced contractual interpretation. If we are solely looking at the practice of contracting parties, it does appear that international contract practice exists, as international agreements are drafted in accordance with the common law drafting style. They are often drafted without considering the applicable law which results in the parties aiming for self-sufficient contracts that minimise the effects of national laws. The parties often include boilerplate terms in the contract, draft in a detailed manner, and aim to exclude external influences. A common tool used by international commercial actors is choosing arbitration as the dispute resolution mechanism, as this removes the case from the national litigation procedure and offers flexibility. The problem is that perfect contracts are nearly impossible to achieve due to market failures and cost efficiency. Contractual negotiations are seldom exhaustive and do not consider all possible outcomes, as negotiations often focus only on a few contractual terms. Therefore, jurisdictions have developed rules to correct and address possible imperfections and shortcomings. Default rules, adjustments and contractual interpretation supplement economic life and complement these incomplete contracts. The problem that can be identified to the existence of international contract practice is that contract laws and interpretation have evolved within national contexts. This means that the interpretation does not necessarily take into account the international character of cross-border contracts. The interpretation of contracts is attached to certain assumptions, and these assumptions are not the same throughout the world. The assumptions can also affect the behaviour and understanding of the contracting parties, lawyers and arbitrators. The fact that national systems have different mechanisms for addressing specific legal problems and social needs does not preclude the existence of international contract practice, provided that the solutions adopted are compatible. However, at present there are still many differences in interpretation which has the possibility of leading to different outcomes in different legal systems, even if a contractual clause is worded similarly. Utilising arbitration is not enough to correct this divergence, as the contracting parties almost always choose national law as the applicable law, the arbitrators must still apply law correctly, and the arbitrators might have internalised a jurisdiction’s approach to law and interpretation. Transnational sources of law are also not adequate to overcome the issue of interpretation. Transnational sources of law may provide neutral language and a compromise between legal traditions. They are not tied to specific national systems so they can have regard towards the international character of cross-border contracts. However, they do not provide sufficiently precise guidance or a complete system that could correct the impact of national jurisdictions. These sources cannot be said to provide adequate guidance on the interpretation of contracts. This master’s thesis does not seek to claim that international contract practice cannot emerge outside the confines of national legal systems, but rather it presents that if similarly worded contracts do not have uniform effect, the result is a mixture of national and international practices. Without uniform effect, international contract practice cannot be said to exist. It is therefore necessary to examine the interpretation of contractual clauses in domestic courts and arbitration and consider whether similarly worded clauses and different rules lead to different outcomes depending on the applicable law. The possibility of divergent interpretation can explain why international commercial parties prefer detailed contracts and wish to detach the contract from the governing law. However, in the current framework, it is not possible to completely eliminate the effects of the applicable law. Autonomous and standard contracts continue to be governed by national laws, they are subject to mandatory rules, and they are interpreted with ways established in the different legal systems and traditions.