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

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.

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

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

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.

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.

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.

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.

This thesis consists in an analysis of Corporate Governance in the Finnish Cooperatives and in the Finnish Cooperative Banks. By comparing the Finnish Corporate Governance model, with the other models used in other countries, it is possible to have an idea of the Finnish economic system and how this system may react to events as the economic crisis. The study, focuses on Cooperatives, as these kind of business forms are very popular in Finland, with particular attention on the form of the Cooperative Banks. The thesis also analyses the effects of the 2008 Financial Crisis and the effects that the following regulation had on the Finnish Banks and Cooperatives, from a general and Corporate Governance point of view. The aim of this paper is the of study the effects of the Crisis and the post-crisis regulation on the Finnish Banking system, on Finnish Cooperatives (especially Cooperative Banks) and on the Corporate Governance.

The settlement of the maritime dispute between the Republic of Turkey (RoT) and the Republic of Cyprus (RoC) in the Eastern Mediterranean is politically deadlocked. Both countries keep insisting on their maritime claims despite the diplomatic settlement efforts by the United Nations and the Council of Europe. RoC argues that an equidistance line should be drawn between the two opposite areas, whereas RoT claims that the existence of relevant circumstances, including geographical and non-geographical factors, necessitates a different maritime solution. As their maritime dispute is, besides a political matter, a legal matter regulated by international law, this thesis aims to review the claims of both parties based on the contemporary conventional and customary international law of the sea, with due regard to state practice and international jurisprudence. To determine where the maritime boundary between Turkey and Cyprus lies, legally speaking, an attempt is made to critically compare this case with the outcome of relevant international judicial decisions.

This research is focused on how effective the “right to contest” enshrined in recital 44 of the Digital Services Act is at protecting freedom of expression in online environments, namely, on social media platforms. The Digital Services Act is a proposal for a Regulation by the European Union, designed to harmonize certain aspects of internal market and strengthen the rights of individuals online. Social media platforms, especially those owned by the “Big Tech” companies, have become the center of public discourse. This centralization of public discourse leaves it vulnerable to exploitation by the tech companies. A string of recent events, culminating in the banning of the 45th president of the United States, Donald J. Trump, from Twitter and Facebook, have increased the intensity and volume of debates regarding the role of social media platforms and companies behind them in today’s society. As a result, these platforms find themselves under pressure from various stakeholders. Online platforms have a whole arsenal of tools to limit users, from shadow bans and labelling to de-platforming and demonetization. Moreover, platforms do not seem to have consistent rules regarding content moderation, which further diminishes certainty for all stakeholders involved: the users, the shareholders and state actors. The research aims to find if and how the Regulation tackles issues of social media platform operation. The research is guided by the following research question: does the “right to contest” enshrined in recital 44 and further in the Digital Services Act provide an adequate measure to foster freedom of expression online? The paper consists of the introduction, six parts of the main body and the conclusion. The first part is about history of web services, in which the paper discusses a shift in mentality towards cyber space with rights and responsibilities. The second part briefly touches upon basic challenges of platform governance, discussing issues of jurisdiction and enforcement. The third part describes the risks for society when significant power is concentrated in the hands of “Big Tech” companies. The fourth part focuses on social media platforms, the different ways they exploit users and possible efforts which can be undertaken to limit their negative influence. The fifth chapter is about freedom of expression online, its peculiarities, the practice thereof and reasons to safeguard it. Chapter six dives into detailed analysis of the “right to contest” with provisions which directly or indirectly affect freedom of expression online. The conclusion summarizes the positive and the negative points of the Regulation as regards freedom of expression and other relevant points. The research found that the Digital Services Act is insufficient at fostering freedom of expression online due to lack of provisions explicitly dedicated to safeguarding freedom of expression, in particular disturbing, offensive and shocking content, and its strong reliance on state actors to observe fundamental rights. It was concluded that the Regulation’s primary objective is to set a predictable environment which would allow all stakeholders involved to combat illegal content online. The research question was answered in the negative. Never the less, the redress system proposed by the Regulation for individuals to challenge certain decisions made by platforms was deemed to be effective, despite its numerous shortcomings.