Browsing by Subject "comparative law"
Now showing items 1-6 of 6
-
(2022)The anonymity of virtual currency allows for its misuse for criminal purposes. Of particular concern are transnational organized crime users of virtual currency platforms. The global regulatory response to virtual currency has been disparate, far from uniform, and until recently, fairly muted. In 2018, the European Union integrated virtual currency into a robust anti-money laundering legal regime by requiring the registration of all EU-based virtual currency providers to comply with the rules of the Fifth Anti-Money Laundering Directive. The United States has a messier, but equally stringent approach to virtual currency. However, American regulators struggle with fifty state courts issuing wildly varied interpretations, while virtual currency companies meet different conditions for licensing, described as ‘Frankenfinance’ or full of absurd contradictions and incongruities. China took an altogether different approach as it banned all cryptocurrencies in order for the People’s Bank of China to pave way for the introduction of its own cryptocurrency, the digital yuan. This decision was made after recent high profile security breaches, including thefts and fraud, warned the Chinese regulator of increasing risk to the financial market. The responses of these three jurisdictions demonstrate the different ways that regulators have begun to define and limit the use of virtual currency. Permissive and contentious regulators in the EU and the United States are normalizing the trade of virtual currencies if it complies with international anti-money laundering rules. However, the hostile Chinese approach suggests that this Western regulatory approach may not meet the demands of every global jurisdiction. This paper uses a vertical and horizontal comparative approach to identify both legal definitions and approaches to virtual currency regulation to answer the research question: is the harmonization of virtual currency regulation desirable, or even possible?
-
(2024)This paper examines the relationship between competition damages and leniency programmes in the EU. The idea of a leniency programme is that a member of a cartel discloses its participation in the cartel and the existence of the cartel to the competition authorities. If the applicant provides sufficient information and cooperates with the authorities, it is granted immunity from fines. However, the immunity recipient remains liable for the damage caused by the cartel through overcharging. There has been a global decline in the number of leniency applications, and it is likely that the introduction of private enforcement in the EU has contributed to this trend. In this study, it was assessed whether private enforcement or leniency programmes should be reformed in a way that would encourage private enforcement while safeguarding the effectiveness of leniency. In order to assess this issue, the EU system was compared to the equivalent US system, as private enforcement of competition law is much more active in the latter. The main finding is that in the US, cooperation between leniency applicants and civil plaintiffs is encouraged by a combination of carrots and sticks. To receive immunity from fines, the leniency applicant must cooperate with private plaintiffs by providing them with all the necessary information. In the EU, Directive 2014/104 on the private enforcement of competition law has harmonised some of the rules of the Member States. Leniency statements cannot be disclosed, and other information provided under the leniency programme can only be disclosed only after the Commission has closed its proceedings. In the light of the US system, it is important to provide for carrots and sticks to ensure the effectiveness of leniency and private enforcement. Directive 2014/104 is based on the principle of full compensation, and under this principle it is not possible to provide for further limitations on the liability of immunity recipients. If a derogation from the principle of full compensation is allowed, it would be possible to simultaneously increase the effectiveness of both leniency and private enforcement. This would require the introduction of class actions in the EU, while the liability of an immunity recipient would be limited by allowing an exemption from joint and several liability. These reforms would increase the deterrence of private enforcement while at the same time incentivising leniency applications.
-
(2021)Avhandlingen ser på ekonomisk brottslighet (white-collar crime, på svenska ofta kallat manschettbrottslighet) speciellt i formen av förskingringar, och hur de visar sig i välfärdsstater såsom Finland och Sverige. Avhandlingen ger även en översikt över kriminologisk teori, manschettbrottslighet och dess kopplingar till globalisering. I ljuset av avhandlingens källmaterial är en kort diskussion beträffande kriminaljournalistik även inkluderad. Teorimässigt ligger fokus på hur manschettbrottslighet och kriminologiska teorier har utvecklats genom åren. Avhandlingens källmaterial och fallen som analyseras samlades genom användning av internetbaserade nyhetsmedier i januari och februari 2021. Som sökmotor användes Google, där sökningen begränsats till www.yle.fi och www.svt.se. Finland och Sverige blev valda tack vare deras många likheter samt relativt lätta jämförbarhet. Det som skiljer avhandlingen från andra studier inom samma område är dess fokus på Finland och Sverige, samt dess metod för datainsamling, vilket ter sig unikt, eftersom en liknande analys mellan länderna inte gjorts tidigare. Forskningens resultat visar på en variation mellan gärningsmannens ställning och tillvägagångssätt, där brottsmetoden ofta var överraskande enkel. Dessutom kan man i analysen finna påfallande likheter mellan Finland och Sverige. Några uppenbara slutsatser på globaliseringens direkta inverkan på själva brottet förblir dock tvetydigt. Hursomhelst kan det ändå konstateras att medan globalisering i sig inte är källan till allt det onda, är det ändå ofrånkomligt att fenomenet globalisering samt allt vad det innebär nog underlättat genomförandet av en del former av ekonomisk brottslighet. Dock visar även avhandlingens slutsatser på att den stereotypiska manschettbrottslingen som en manlig medelålders chef inte stöds av källmaterialet. Poängteras bör ändå också att definitionen av manschettbrottslighet, som den används i denna avhandling, samt omfattningen av vad som räknats som förskingring, tvingar betydelsen av denna traditionella, och aningen konservativa, stereotypen att minska i värde.
-
(2020)This thesis is about Intellectual Property and Financial Markets Law in comparative context – differences and similarities between the European Union and the United States in Patent Law, Copyright Law, Trademark Law, Banking Law, and Securities Law. Therefore, the covered areas of law are: Differences and similarities between the European Union and the United States in financial markets law: banking law, and securities law. Differences and similarities between the European Union and the United States in intellectual property law: patent law, copyright law, and trademark law. The thesis offers a fairly comprehensive yet summarized analysis of the differences and similarities of the EU and the U.S. in the fields of financial markets law and intellectual property law. This thesis can serve as a general overview to business people, policy makers, lawyers and judges dealing with the covered areas of law. For instance, corporate lawyers considering whether to initiate the IPO process in the U.S. or within the EU in his/her client’s behalf, companies considering the pros and cons of either filing for a patent in the U.S. or in an EU member state, and so forth could find the insights from this comparative study useful. This 80 pages thesis does not naturally replace seeking legal advice from experts in financial markets law and intellectual property law, since all the nuances of financial markets law and intellectual property law could not be covered in this study. This thesis can also be useful for legal scholars since the approach adopted in this study to include more than a legal concept or field of law exemplifies that conducting comparison on a wider scale, ‘meso-level comparison’, can be a fruitful approach to gain an overall picture of the differences and similarities of fields of law while enabling comparisons both within regions/countries as well as within fields of law themselves. Such additional comparative aspect can under some circumstances lead to unanticipated yet useful insights that might have otherwise been overlooked. For example, due to this approach one of the findings of this study among others includes that similarities in financial markets law and intellectual property law are partly explained by international harmonization efforts.
-
(2020)The principles of separate corporate personality and limited liability are immutable characteristics of the modern corporate form. Together they create a regime of asset partitioning in company law, which means that, as a statutory default rule, the property of a company is separate from the personal assets of its shareholders and it cannot be used to satisfy the owners’ personal debts. Reversely, corporate shareholders are not generally liable for obligations incurred in the name of the company, with corporate creditors being able to seek enforcement solely against the assets of the indebted entity. Veil piercing is a company law doctrine, which allows the courts to derogate from statutory principles of separate corporate personality and limited liability by holding a shareholder personally liable for debts owed in the name of the firm. Piercing is employed as a weapon against owner opportunism and is generally seen as an option of last resort in the face of the abuse of the corporate form. This paper examines and compares the development of veil piercing in the legal systems of Finland and the United Kingdom (UK), with the aim of highlighting material similarities and differences in the preconditions for its application. While both legal systems unequivocally recognize the existence of a general doctrine of corporate veil piercing, they do so in the absence of any statutory provisions to this effect. Instead, the doctrine has been formulated and developed through the case law of the national courts, with the decision of the Finnish Supreme Court in KKO 2015:17 and that of the UK Supreme Court in Prest v Petrodel Resources Ltd (Prest) constituting the main modern authorities in this area. As the basis of the compared doctrines is rooted in judicial reasoning, this paper uses the traditional legal dogmatic method to examine and interpret key judgements from both jurisdictions with the aim of establishing existing law. However, the primary objective of this paper is that of functional comparison, as it seeks to discern the substantial similarities and differences between the two legal systems in their approach to the issue of the abuse of the corporate form. Based on an analysis of sources from both jurisdictions, this paper identifies four common factors that should arguably form part of any authoritative future formulation of the piercing test in both Finland and the UK: (i) an element of unconscionability, (ii) significant harm to the protected interests of third parties, (iii) the shareholder exercising actual control over corporate affairs and (iv) a lack of any meaningful administrative and economic independence on the part of the affected entity. However, despite finding such surface-level similarities between the two piercing doctrines, this paper goes on to conclude that the approaches adopted by the Finnish and the UK courts in veil-related cases are fundamentally different. While the Finnish Supreme Court in KKO 2015:17 managed to identify specific, albeit not exhaustive, preconditions capable of future application, the UK Supreme Court’s judgement in Prest has effectively frustrated the role of the doctrine in the legal system, rendering it all but obsolete. Instead, relief is often provided through the application of ordinary principles of English private law, especially the constructs of agency and trusts. In light of the ambiguity and confusion pertaining to the doctrine’s role in the UK legal system, this paper argues that the Finnish courts should view the haphazardous development of veil piercing in the other jurisdiction as a cautionary tale, emphasizing the overwhelming need for a principled approach when judicially derogating from leading statutory provisions in the area of company law.
-
(2020)ABSTRACT When does a person have to think about writing a last will and structuring his assets and affairs so that his family members will lately inherit them or other people involved in his life? Surprisingly, not a lot of people start thinking of it early enough to protect wealth and assets to be smoothly and fully transferred to their family members or other heirs. The issue is complicated by the international aspect and the amount of wealth that a modern businessperson owns. The aim of the thesis is to study in depth and name the problems, indicate complexity and find solutions for inheritance succession planning of wealth with the tax perspective. The central figure of the paper is a rich wealth owner that is of HNWI or UHNWI level. Modern families have a lot of possibilities to live in several countries, expand and conduct business internationally, which brings certain complications when one of the family members passes away and the heirs suddenly find themselves in a situation, that half of the estate is given out to pay taxes in several countries, partly assets are stolen in the transition period by the advisors they have never heard about and part is simply lost; business enters crisis and does not provide enough income anymore as the heirs are not interested in the full engagement or are not educated in the sphere. Creditors are waiting around the corner and once having millions and comfortable life the heirs find themselves in a dubious situation. When the succession planning done beforehand, having enough time to structure wealth and assets, get to know tax exemptions and possible tools most of the assets can be retained. What are these tax laws or inheritance procedures that support the advantageous planning for wealth transfer? To provide not a general but a more detailed perspective on differences in procedures, tax regulations and possible solutions, comparative analysis of three jurisdictions is completed. The thesis looks closely into tax optimization rules and instruments such as gifts, trusts and foundations and life insurances. Advantages of the instruments are indicated in general prospective and applying them in concrete legislations and situations. In conclusion, the thesis presents an overview, a practical imaginary situation, and a plan for the wealth owner to adhere. Of importance, for understanding is to mention that concrete situation of each wealth owner is complicated and needs to be analyzed in detail in the context of the entire structure and its relationship with other components.
Now showing items 1-6 of 6