Browsing by master's degree program "Kansainvälisen liikejuridiikan maisteriohjelma (International Business Law)"

This thesis investigates the intersection of personalized advertising and real-time bidding (RTB) within the European data protection framework, with a focus on evaluating the effectiveness of existing data protection laws. Utilizing a combination of doctrinal research, case studies, and interdisciplinary methodologies, the study explores the mechanisms of personalized advertising and the RTB ecosystems, including the utilization of personal data and the involvement of various stakeholders. The study investigates the interests, roles, and compliance work of key participants in RTB. It identifies the complex nature of RTB ecosystems and the absence of coherent guidelines for clarifying the roles of participants under EU data protection law. This lack of clarity has created legal uncertainty for them in complying with the law. Additionally, this research highlights that the current RTB system falls short of meeting consent criteria, compounded by the unclear legal status of the widely used Transparency and Consent Framework (TCF), leading to uncertainties in ensuring consent within RTB. Moreover, the study finds that current practices heavily rely on partners to collect and transfer data, often based on contractual obligations and shared within the whole ecosystems which are usually inaccessible to users. This lack of transparency hinders users' ability to control their data and exceeds their expectations of data processing. In summary, this thesis adopts a practical perspective, highlighting the inadequacies of the data protection framework in personalized advertising via RTB, emphasizing the need for clear guidelines in the field to ensure compliance. It advocates leveraging industry organizations to bridge the gap between regulations and implementation, as well as fully utilizing technological tools to detect and enhance data protection levels. Although this thesis offers some insights, more comprehensive research is still required for future compliance with data protection laws in the RTB ecosystems.

This research examines the relationship between Market Abuse Regulation, specifically in the context of inside information and insider dealing, and corruption prevention in in the European Union. One of the primary objectives of MAR is to enhance the integrity of the financial markets in the EU, and in this research the corruption aspect of integrity is examined from the perspective of inside information, insider dealing, and potential conflicts of interests for public officials. To form a comprehensive understanding of what types of corruption prevention mechanisms are in place, the disclosure requirements and enforcement of the insider dealing provisions are examined as well. As corruption is mainly considered from a public law and public interest perspective, this research combines elements of legal theory and different corruption detection mechanisms to traditional legal dogmatics in its methodology. The combining elements of insider dealing prohibition and corruption further promote this line of research and the choice of methodology. The aim of this research is to find whether the corruption prevention tools should be considered in a wider context to enable the MAR to reach its goal of achieving integrity, and what are the principles the insider dealing prohibition is based on to highlight its common ground to corruption prevention. The current European framework on corruption does currently cover conflicts of interests or financial interests of public officials in Member States in a harmonized manner, and the national regimes severely lack enforcement. As the current framework is under review, the suggestion made this research is that the private sector corruption risk relating to financial markets and specifically insider dealing would be better considered when building up the failed integrity through better tools for anti-corruption. Furthermore, harmonization of disclosure requirements for conflicts of interests on financial matters for public officials could provide better trust and transparency for financial markets and increase the competitiveness of the European financial markets.

Due to an impressive evolution of the AI technologies within the last few decades it has become an integral part of everyday life called for improving and facilitating it. Yet, as a result of this evolutionary process AI’s activity nowadays contains features which require legal regulation in the course of its application. Such request was recognized by the EU legislator. In 2017, the EP voiced a possibility of introducing of a legal status of electronic person for the sufficiently sophisticated robots. Specialists in this sphere, however, gave a hostile reception to such an initiative claiming that legal personhood of AI cannot be fit into the current legal paradigm. The latest EU initiatives pertaining to the legal regulation of AI application reveal that the electronic person is not on the EU’s agenda anymore. This work is dedicated to a negation of the above claim of AI specialists by demonstrating that there are no unsurmountable obstacles for conferring legal personhood on the sufficiently sophisticated AI even though it should not be considered as a person from the philosophical standpoint. Having accepted a possibility of according legal personhood to AI, the next question to answer is should it be recognized as a natural or artificial person (the existing types) or should it be ascribed a legal status of the electronic person. The answer is found in the analysis of the determining characteristics of sufficiently sophisticated AI and their comparison with the features of humans and corporations, bearers of natural and artificial personhood, respectively. The ascription of legal personhood to AI is not aimed at recognition of exceptional qualities of AI per se. It is, instead, called for resolving the existing legal problems of AI application in the business sphere, namely, in contract and tort law, and intellectual property rights. By the way of the conferral of legal personhood on AI it is possible to properly allocate responsibility or attribute authorship. In such a manner, establishment of legal status of the electronic person is discussed as an umbrella solution for various domains of business law that may establish legal certainty and ensure the EU against legal fragmentation.

Merger control in the European Union is governed by the EC Merger Regulation No 139/2004 (the EUMR), which sets out jurisdictional thresholds that the merging companies need to exceed for the transaction to be reportable. The current EUMR relies on thresholds that are based on the annual turnover of the merging parties. These turnover-based thresholds, which were as a political compromise, provide a straightforward way of determining which mergers need to be notified to the Commission. However, developments in the digital economy have facilitated a trend, especially in the technology markets, where companies acquire innovative start-ups, to either take over their valuable assets or restrict competition and their position on the market. These acquired start-ups generally produce minimal turnover but have a large user base and valuable data sets. Thus, these aforementioned mergers do not fall under the Union dimension, due to the currently applicable high turnover-based thresholds. This study assesses if turnover-based thresholds are effective enough to tackle mergers occurring in the digital economy and whether there is a need to introduce additional thresholds to complement the currently applicable thresholds. In addition, the study researches what principles should be followed when introducing new thresholds and what are the possible new alternative thresholds that the Commission could introduce. This is a legal dogmatic study, which also includes come comparative elements. It contains seven chapters, each one addressing and examining certain aspects of the research questions. Chapter 1 introduces the subject matter, objectives and rationales for the carrying out of this study. Chapter 2 gives an overview of the framework of merger control, Chapter 3 discusses whether the existing EU merger control threshold criteria are inadequate of the digital era. Chapter 4 gives an overview of different thresholds used in seven jurisdictions, Chapter 5 compares the possible alternative thresholds with three normative benchmarks and gives recommendations for introducing new threshold criteria in the EU. Chapter 6 concludes and answers the research questions and gives suggestions for further research. The study found that that the currently applicable high turnover-based thresholds set out in the EUMR are not sufficient enough to capture mergers in the digital economy. In addition, considering the needs of the digital economy, especially the fact that the number of transactions taking place in the technology markets is rapidly increasing, the Commission should introduce in addition to the turnover-based thresholds alternative thresholds, especially in technology markets, to predict the potential anti-competitive outcomes of mergers, which are not suitable to be thoroughly assessed solely based on the turnover figures of the parties. Additionally, the study suggests that new alternative threshold criterion, based on transaction value, could be introduced to the EUMR. This threshold would be able fill the gap in the EUMR, so that the Commission could investigate notable transactions in the digital economy which are likely to produce competitive harm but currently lack the turnover to fall within the EU’s jurisdiction.

Multimodal transport has become a norm for modern international carriage of goods, but identifying the stage at which losses occur can be challenging. This gives rise to the legal problem at issue that a multimodal carrier’s liability for unlocalised loss is not certain or predictable under the current international transport regulatory framework. This study aims to envisage a suitable solution to unlocalised loss in terms of multimodal carrier liability by addressing two research questions: What forms the legal difficulty of unlocalised loss? What liability regime for unlocalised loss would address the identified legal problems? The research employs legal doctrinal methodology to analyse positive law and fill gaps in international law. The legal problem of unlocalised loss arises from two factors. First, the liability regimes in unimodal transport differ significantly in terms of liability basis and monetary limitations. Second, some unimodal regimes extend their jurisdiction to multimodal transport, potentially covering unlocalised loss, but these expansions are based on different prerequisites, leading to overlaps and gaps. To address unlocalised loss, two approaches are proposed. The first is an overriding multimodal regime or fallback rule, with strict liability and the highest applicable limitation being likely to gain widespread acceptance. The second is a contract-oriented approach, where solutions based on contract construction provide a holistic approach, and those based on freedom of contract ensure certainty and predictability, though both come at a high cost. It is hoped that the analysis provided in this study could contribute to the ongoing discourse on a potential harmonised multimodal regime, by zooming in on the scenario of unlocalised loss.

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.

In this thesis I examine how pastiche has developed as an exception and limitation to copyright in the EU law and how it could develop in the future. The context of the study is remixed artwork and user generated content within the EU copyright. To study how pastiche has evolved in the EU jurisprudence and what improvements scholars have suggested for the EU copyright, I start by examining the legality of remixes and remix culture. It is relevant to understand how pastiche has been defined in law and what definition suggestions legal scholar have mede for its legal definition since the EU legislator has not yet done so. What effects the interpretation and application of pastiche in the EU jurisprudence is the EU legislation such as InfoSoc Directive, CDSM Directive and European Fundamental Rights. As a native, I am interested in how pastiche has presented itself in the Finish law and how it compares to the neighboring Sweden which Finland has shared practically identical copyright law with. To explore how pastiche has been utilized in the EU courts, I have chosen to study the German cases of Pelham and Scorched Earth, the latter being still ongoing battle in the CJEU and the former the first German case where the pastiche plea was successful. The implementation periods of the InfoSoc Directive have a significant effect on how the exceptions and limitations to copyright have been applied by the EU courts. To contemplate how pastiche could evolve in the future legislation I present suggestions of legal scholars on how to improve the EU copyright law. These include reputational harm and the application of trademark infringement. For the latest development in the EU copyright, I present the CDSM Directive Article 17 and how it has affected the liability regime and user generated content on online content-sharing platforms. I examine what benefits pastiche could provide for user generated content and if there are means to avoid the negative effects of automated filtering in the context of user generated content shared online. In the conclusions I present the results of my study and provide my own proposal how pastiche could be defined legally.

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.

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.

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.