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Browsing by study line "Private International Law"

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  • Malmberg, Otso (2022)
    Artificial Intelligence (AI) has become an ubiquitous technology in society with ever more diverse applications. Different AI systems have become especially pervading in the domain of creative arts, where they can near-autonomously generate content. For example, there is a number of software that allow generation of musical output with minimal specifications from the user of the AI system. Where the creative process combines human and machine labor, results of such joint efforts can be called ‘AI-assisted output’. Ascertaining the legal status of AI-assisted output forms the crux of this Master’s thesis. On one hand, the research is concerned with the copyrightability of AI-assisted output. This question pertains to musical output produced with the assistance of illustrative AI systems of AIVA and Jukebox. The research adopts a legal comparative method in this regard: it seeks to assess how the copyright laws of EU and England could accommodate the AI-assisted output. Evidently, the focus in the analyses of the respective systems will revolve around their conceptions of originality, the key requirement to qualify for copyright protection. As a counterpart for the legal comparative study into the feasibility of copyright protection of AI-assisted output, the second prong of the research probes into the desirability of protecting such output. In other words, the research seeks to establish the merits of protecting AI-assisted outputs by juxtaposing the underlying, theoretical rationales of copyright law against AI-assisted output. To this end, the research aims to survey how the relationship between the human author and AI system interacts with the different rationales of copyright. Against this backdrop, the research preludes by looking into the foundations of AI and the selected legal systems. AI is examined retrospectively with a view on how the technology has emerged and how machine learning, the most prominent method of modern AI, has significantly increased the autonomy of AI systems. The illustrative AI systems of the research, AIVA and Jukebox, match the foregoing trends. However, in exploring the features of the systems, variance can be perceived in the amount of influence the user may be able to exert in the creative process of the musical output. The research then proceeds to provide a thorough picture of the framework of copyright law. In the first half of the section, the origins of the law are traced back to the civil law and common law traditions that underlie most copyright systems. Thereafter, the utilitarian and deontological rationales that underpin those systems are discussed including an exposition of the legal and economic discipline’s relationship with copyright law for later discussion. The second half of the section zeroes in on the copyright laws of the selected legal systems. It first notes the influence from the international framework of copyright and some general discussion on AI and its output on that level. Following up, the respective schemes of awarding copyright protection under EU and English law are broken down into their constituent parts. As per alluded, the crux of the analyses are on their respective standards of originality. In the EU, the notion is construed as an exercise of identifying ‘author’s own intellectual creation‘; specifically, the CJEU is concerned with the identification of creative choices that can take place in different phases of the creative process. In England, the standard of originality denotes first and foremost origination: the pertinent artifact should originate from the author and no one else. In addition, the English standard seeks to establish the exercise of skill, labor and judgment in its creation of the right kind. In the analytic section of the research, the illustrative systems of AIVA and Jukebox are then related against the copyright systems. The section begins with an application of the standards of EU and England against the output from the AI systems in abstract; no concrete samples from the systems are studied but rather the focus is on how their users may harness their features. Herewith, the amount of user engagement in the creative process becomes the key in both system; where the user can apply creative choices in the different phases of the production or alternatively exert skill, labor and judgment as opposed to mere generation off output with the systems, there is very likely an original work at stake. Hereby, the two AI systems diverge when examined in isolation; whereas AIVA provides the user with a vast amount of tools to interact with their product, Jukebox has little to offer in terms of post-processing. Accordingly, whereas output from AIVA would very unlikely fail to meet the standards of either jurisdiction, output from Jukebox could potentially be barred where no human intervention can be perceived from the final product. The section concludes with a survey of alternative forms of protections for AI-assisted output. As per the foregoing discussion, it is noted how the deontological rationales have limited application in justifying the protection of output that have minimal human involvement. It follows that the economic-utilitarian grounds are emphasized and options that spur therefrom. The related rights regime, a new sui generis right and alternatives that disregard considerations of originality and authorship are explored with alike conclusions: the alternatives do not serve as a backdoor protection but are rooted in valuing socially beneficial activities. Evidently, with AIVA and Jukebox, it would have to be evidenced that their generated output merits protection from a market failure. In light of the foregoing discussion, there is no such substantiation. Accordingly, it would be best to leave AI-assisted output in the lower end of the spectrum of human interaction well alone to preserve the balance between private and public interests.
  • Uoti, Ida (2022)
    Tutkielman keskiössä ovat aviovarallisuusasetuksen ja perintöasetuksen sovellettavaa lakia, lainvalintaa ja toimivaltaa koskevien säännösten systematisointi ja yhteensopivuus keskenään. Aihetta tarkastellaan kansainvälisen yksityisoikeuden, EU-oikeuden sekä Suomen lainsäädännön näkökulmasta. Tutkielman keskiöön asettuu asetusten säännösten systematisointi ja vertailu toisiinsa nähden. Toimivallan osalta keskitytään toimivaltaa koskeviin pääsääntöihin ja yhdyskohtiin asetusten välillä ja kysymykseen tulevat myös aviovarallisuusoikeuden ja perintöoikeuden kategorioiden yhdistämisen ongelmakohdat. Aviovarallisuusoikeus ja perintöoikeus ovat usein yhteydessä toisiinsa ja niitä sovelletaan aina yhdessä esimerkiksi avioliitossa kuolleen henkilön perintöä ja avio-oikeuden alaisen omaisuuden jakamista koskevassa asiassa. EU:ssa ovat tulleet voimaan perintö- ja aviovarallisuusasetus, joiden mukaan määräytyy muun muassa perimykseen tai aviovarallisuussuhteisiin soveltuva laki tai asian toimivaltainen tuomioistuin. Asetusten soveltamisen kohdalla on unionin jäsenvaltioiden kohdalla eroja, koska aviovarallisuusasetusta sovelletaan vain osassa EU-maita. Molemmat asetukset ovat voimassa Suomessa. Tutkielmassa pyritään vastaamaan ennen kaikkea kysymyksiin, millaisiin ratkaisuihin asetuksissa on toimivallan ja sovellettavan lain osalta päädytty? Kun asetuksia sovelletaan yhdessä, mitä ongelmia siitä voi seurata? Millaisia mahdollisuuksia kansainvälisen liittymän sisältävässä avioliitossa puolisoilla on suunnitellessaan perimystä tai aviovarallisuussuhteita? Kansainvälisen yksityisoikeuden tavoitteena voidaan lähtökohtaisesti nähdä, että jokainen asia ratkaistaisiin yhden normiston nojalla samassa tuomioistuimessa, ja asian tultua ratkaistuksi ratkaisu tunnustettaisiin päteväksi ja täytäntöönpanokelpoiseksi kaikkialla. Tutkielmassa huomataan, että kun näitä kahta asetusta sovelletaan yhdessä, on hyvinkin mahdollista, että asiaa ei ratkaista vain yhden normiston nojalla. Myöskään lakiviittausta koskevat säännöt eivät mahdollista asetuksien mukaisen täyden potentiaalin toteuttamista perintöasetuksen mahdollistaman tahdonautonomian suppeuden vuoksi. Tutkielmassa käydään läpi asiaan liittyvät merkittävimmät EUT:n tapaukset. Koska perintöasetus on tullut voimaan vuonna 2015 ja aviovarallisuusasetus 2019, ei näiden kahden asetuksen sovellettavuudesta yhdessä ole vielä tullut oikeustapauksia. Asetusten yhteensovittaminen ja yhdessä soveltaminen voivat aiheuttaa luonnehtimisen ja asian lopputuloksen kannalta hankalia tilanteita, joihin mitä todennäköisimmin tullaan vielä saamaan vastaukset EUT:n ennakkoratkaisumenettelyllä.
  • Lampela, Iris (2021)
    The thesis explores bifurcation and its impact on allocation of costs in investor-State arbitration. Bifurcation refers to the splitting of issues into two or more separate phases in the course of the proceedings. In the context of investment arbitration, bifurcation typically concerns the split between jurisdiction and merits. On one hand, separate determination might narrow the scope of the dispute or lead to the dismissal of the case in its entirety. On the other hand, unsuccessful bifurcation adds significantly to the time and costs of the proceedings. Because of this dilemma, bifurcation has been characterized as one of the most important procedural questions an investment tribunal can make. Firstly, the thesis aims to answer how bifurcation can be used as a procedural tool in investor-State arbitration. Bifurcation is examined within the normative framework of the ICSID Convention, the ICSID Arbitration (Additional Facility) Rules and the UNCITRAL Arbitration Rules. In addition, the problems related to partial awards on bifurcated issues regarding their possible challenges and res judicata effects are presented. The strategic use of bifurcation by the parties in order to advance their positions in the course of the proceedings is also explored. Secondly, the thesis analyzes what the tribunal has to take into account in its assessment when deciding whether to bifurcate the proceedings. In the absence of a legal test in the chosen arbitration rules, the tribunal has to base its assessment on broad legal principles such as efficiency, equality of the parties as well as the reasonable opportunity to present one’s case. The legal test on bifurcation developed by the tribunal in Glamis Gold v. U.S. is also examined. In order to grasp the procedural and financial dimensions of bifurcation more profoundly, the third research question seeks answers to the impact bifurcation has on the allocation of costs. The cost allocation regime in investment arbitration, in turn, is rather inconsistent and the tribunal has a wide discretion in allocating the costs. Special attention is given to two ICSID cases where bifurcation has played a role in cost allocation: Caratube v. Kazakhstan and Iberdrola v. Guatemala. The underlying motivation for the thesis is tripartite: it aims to contribute to the somewhat lacking research of procedural questions in investment arbitration, create solutions to the reduced cost-effectiveness of ISDS as well as to clarify the doctrine regarding allocation of costs. These objectives are pursued by utilizing the legal dogmatic method. Contextual background for the research of investor-State arbitration is also provided, namely by addressing the peculiar nature of investment arbitration as a hybrid between international law and commercial arbitration as well as the critique ISDS continues to face. The thesis concludes that while bifurcation may be an apt procedural vehicle to cut time and costs, it should be applied with due consideration and with a high certainty that splitting the proceedings will discard some or all of the claims. The impact of bifurcation on cost allocation should not be exaggerated, as it is merely one factor the tribunal may take into account when allocating the costs. It is suggested that the tribunal should not automatically burden either of the parties due to unsuccessful bifurcation in its award on costs, as the ex ante evaluation of the likelihood of the success of splitting the proceedings is rather difficult. When allocating the costs of unsuccessful bifurcation, the tribunal should assess the reasonableness of the request or objection to bifurcation as at the time it was made, not merely with the insight gained in retrospect.
  • Elevant, Ina (2021)
    The rise of the Internet of Things (IoT) has brought with itself an unimaginable ease to large-scale collection and sharing of personal data. Such large-scale collection and sharing are often done on the basis of data subject’s consent. Consent enjoys a prominent role in the European data protection framework. Consent has, however, been criticised for not providing individuals with adequate protection in online environments. This problem will only be exacerbated with the rise of IoT as IoT extends the data collection practices of the online environments also to offline environments. The purpose of this thesis is to explore the use of consent in the processing of personal data in the IoT. There are two research questions this thesis aims to answer: i) what are the problems and challenges related to the traditional consent based model in relation to IoT, and ii) is there an alternative way forward to user consent? This will be done through legal doctrinal methodology. However, this thesis will also take an interdisciplinary approach as it also draws from different disciplines than law such as technology, behavioural sciences and economics. This thesis shows that, in digitalized world, consent is neither freely given nor informed; thus, challenging the notion of valid consent. These problems arise from information and power asymmetries that are present between data subjects and controllers. However, IoT also brings with itself a unique set of problems as most IoT devices lack screens and input methods making it hard for individuals to access information and provide consent. Moreover, the unobtrusive and ubiquitous nature of IoT makes data collection activities invisible making it hard to apply transparency principle. It is also predicted that the presence of IoT in public spaces leads to the diminishment of private spaces. In light of this, this thesis discusses some alternative ways forward to user consent. The first approach focuses on improving consent, while the second approach aims to shift the focus away from consent by placing accountability on controllers. While both of these alternatives have appeal, they do not come without challenges. Therefore, more research is needed in the field of IoT and data protection.
  • Kaukjärvi, Jenna (2022)
    This thesis examines contractual interpretation in the United States and the Nordics. The effect of the entire agreement clause on the interpretation process is also examined. The purpose is to identify the main differences and similarities in the U.S. common law and the Nordic civil law approaches to interpretation and enforcement of the entire agreement clause. The principles of contractual interpretation are very similar among the Nordic countries, which allows the Nordics to be discussed as a single entity in relation to interpretation. In the United States, however, we can see a lot of variety in contractual interpretation matters, and not just between states but within the states themselves. Contract law (and contractual interpretation) is mostly governed by state law, which is why very few generalizations can be made that would be representative of every state. In some states contractual interpretation has also been incorporated into statutes. In the Nordics, there are no statutes regulating contractual interpretation; instead, interpretation is guided by general principles. The first part of the thesis concentrates on contractual interpretation in the United States. First, after an introduction to the common law system and sources of law, the entire agreement clause (which originates in Anglo-American law) is studied. Second, the parol evidence rule, which is a unique common law phenomenon and serves a similar purpose as the entire agreement clause, is examined. The focus of the study then moves onto examining the three different theories of interpretation: literalism, objectivism, and subjectivism, after which the interpretation process in general in discussed. Objectivism and the four corners and plain meaning rules stand out in this part of the research. The second part of the thesis focuses on contractual interpretation in the Nordics. The enforcement of the entire agreement clause is also discussed. Objectivism and subjectivism are also addressed from a Nordic point of view, but the general principles of interpretation discussed are not arranged under either label since the interpretation material available for interpretation in the Nordics includes both types of evidence. The interpretation process in general is also examined. The third part comprises of a comparison of contractual interpretation in the U.S. and the Nordics as well as differences in the enforcement of the entire agreement clause. The final part summarizes these findings. The main goal of contractual interpretation, determining the common intention of the parties, is the same in both jurisdictions. The difference is in the way of achieving that result. The main conclusion is that interpreters in the Nordics have more tools at their disposal to reach an optimal interpretive result, as both objective and subjective evidence are always available to aid in the interpretation process. In the U.S., an objective approach to interpretation is favored by most U.S. courts, and the four corners of the contract and the plain meaning rule are emphasized at the start of the interpretive process. Generally, an ambiguity is required to allow extrinsic evidence. In the Nordics, there is no ambiguity requirement. The availability of subjective evidence is not a given in the U.S. like it is in the Nordics. The principles of contractual interpretation presented in the Restatement (Second) of Contracts in the U.S. mirror the Nordic principles closely; however, the adaption of these principles is at the discretion of the courts. The entire agreement clause is generally enforced in the U.S. where greater emphasis is given to written agreements. In the Nordics, however, the effect of the entire agreement clause can be described persuasive at best. Therefore, the conclusion is that the position of the entire agreement clause in the Nordics is weak compared to the U.S.
  • Romero Nieto, Pablo (2020)
    Giving the consolidation of a framework that allows for the operations of drones for commercial purposes by the new implemented Regulation (EU) 2019/947 on the rules and procedures for the operation of unmanned aircraft, this thesis introduces the reader to both the origin of the technology, the potential business applications of drones in the civil environment, and the current provisions regarding the risk-based operational characteristics of the Regulation as means to analyse the previously existing air and contractual law’s provisions. Through the exploration of the relevant legal principles and regulatory guidelines available for the interpretation of liability assignment and applicability, and by comparing the regulation to the contractual model in order to provide a deeper understanding of how the technology can be commercialized on a Drone-as-a-Service model, the author presents the relevant need of further legislation addressing the application of liability regimes harmonization between Member States from the perspective of the Unmanned Aircraft Systems Operator to satisfy the modern Cloud-Based Services Agreements model and allow the use of Internet as a platform for cross-jurisdictional performance. The first chapter revolves around the historical development and the growing civil interest in the application of drones to activities as a novel, as well as to already established activities that are currently performed by different technologies. Furthermore, it presents the possibility of its characterisation under the framework currently employed by cloud-based services regarding its commercial contractual format. The second chapter focuses on introducing the new Regulations (EU) 2019/947 and 2019/945, which have set the legal and regulatory frame for the safe conduction of activities of unmanned aircrafts, including the principles that served as base for the development of the provision;, the operational rules; machinery requirements and classifications; and the categories’ classification system that have been created for risk assessment. Overall, the frame serves as a guide for anyone interested in venturing in this business. The third chapter explores the international laws and EU air laws that will influence the ruling and potential jurisprudence regarding liability decisions. It aims at presenting both the relevance of Member States autonomy over regulatory decisions and importance towards contractual liabilities disputes. The focus is strongly focused on Operators that will be employed by service providers under the conceptualised cloud-based services agreements contracts framework. Finally, the thesis presents its conclusions and recommendations towards the commercial parties and legislators.
  • Hossain, Sheikh (2016)
    Freedom of establishment granted to nationals of Member States which is enshrined in the Article 49 of the Treaty on the Functioning of the European Union (TFEU) is one of the fundamental freedoms granted by the Treaty that extends to companies by virtue of Article 54 of TFEU. In the absence of company law harmonisation, the increased corporate mobility may lead to a competition between legal orders which in turn can produce laxer law in the Community and this fear is known as fear of Delaware effect in the European Union. Since company law is not harmonised in the EU, there are differences among national conflicts of laws rules of the Member States and many Member States felt justified to use the real seat doctrine as a defensive mechanism for negating the European Delaware. However, the judgment in Centros changed this situation and established legal forum shopping as a good practice. Subsequently the judgment in Überseering reaffirmed the principle of mutual recognition in the EU. Therefore these two judgments established the market for company incorporations and as a result it was feared that, a European Delaware is going to emerge. The purpose of this paper is to assess whether this fear is justifiable. For this purpose the traditional way of conducting legal research; looking for sources and by reading and evaluating them, using them with critical thinking and judgments, was used as a method in this paper. The paper found that, although after the judgments in Centros, Überseering and Inspire Art it was feared that a European Delaware is going to emerge; this fear was unreasonable. It is particularly because the regulatory competition not only needs the establishment of a market for company incorporations but also needs the willingness of the Member States and the companies to compete. The judgments in Centros and Überseering only established a partial market for company incorporation because a market for company incorporation needs both the ability to forum shop and the ability to reincorporate a company in another Member State. This paper also looked into the incentives for competition from the Member State’s and company’s perspective. Eventually, market for company incorporations was established after the judgment in Polbud which allowed cross-border conversion of companies; making regulatory competition possible in the EU. As a result, this paper proposed company law harmonisation as possible solution to the problem. It is high time the Commission took the initiative to make Community company law uniform so that a European Delaware does not emerge.
  • Riivari, Maria (2020)
    Tiivistelmä – Referat – Abstract The main research question addressed in this thesis, namely “are perpetual agreements valid and enforceable?”, is enticing from a general contract law perspective, as well as in the comparative law setting. The chapters of this thesis are built in a way such that Chapter 1 serves as an introduction to the research question, legal sources and methodology. Chapter 2 aims to clarify the main confusions around discussions of perpetual agreements. Chapter 3 is dedicated to the binding force of a perpetual agreement, which has not been given enough attention in the research literature as a separate question. Chapter 4 and 5 address the two main categories of perpetual agreements: everlasting contracts and contracts with undefined duration. These chapters include topics which can be addressed to either category, therefore the division of the topics does not provide too strict a systematic distinction. Chapter 6 is dedicated to comparative research from Finnish and Russian contract law perspectives by observing the systems independently in order to bring out the perspectives in which these jurisdictions address the questions of perpetual agreements in the light of their positive contract norms. Chapter 7 presents the research findings in the form of general conclusions about the validity of such contracts as well as systematization in the form of a roadmap to evaluate perpetual agreements. The roadmap then serves the purpose to present the research findings related to Finnish and Russian perspectives on perpetual agreements. The possibility existence of perpetual agreements from the perspective of limiting the freedom contract by mandatory rules of contract law. In conclusion, the research failed to identify a fundamental principle by which the general ban of everlasting contractual obligations could be explained. The research opposes the notion, that perpetual agreements may not exist as an “everlasting” nature of any legal contractual bind would be inherently unjust as such. This is mainly due to the fact, that the legal systems struggle to even comprehend, what eternity means in legal sense. In short, legally speaking, there is nothing inherently unreasonable in eternity. However, undoubtedly, each everlasting agreement should be evaluated based on the nature and purpose of the contract in the light of the intention of the parties, the specific contract type and the relevant mandatory rules in place in connection with type, the circumstances in which the contract was concluded and the requirements of good faith and fair dealing. The roadmap aims to differentiate questions of the validity of the contract (as such, as a legal fact), validity of the perpetual term (everlasting contract), and possibility of termination from each other. The roadmap illustrates the holistic view of the bundle of considerations related to perpetual agreements, without getting stuck in one particular outcome. For example, even if there is no consensus among scholars, whether an everlasting term is valid or not (in a specific case or as a whole) the roadmap allows to elaborate the outcomes by systematizing various scenarios. This provides and essential framework for evaluation of the research questions in various legal systems. The roadmap differentiates questions of the validity of the contract (as such, as a legal fact), validity of the perpetual term (everlasting contract), and possibility of termination from each other. The short answer to the question whether a perpetual contract may be terminated, is yes. But as in all contracts, the pacta sunt servanda provides that contracts should be honoured, and therefore the there is nothing inherently unreasonable in not being able “get out” of a contractual relationship. The ultimate limit to this are the rules of hardship, which the parties may not as such exclude, however they may arrange their risk allocation in the contract so, that some circumstances, which in some contracts could allow the party to terminate the contract, would not be applicable in their situation. Thus, even an everlasting contract may be enforceable until the point of hardship. While this may be true, albeit not inherently unreasonable, there is no doubt, that an everlasting contract may not be unreasonable ever. Therefore, the roadmap explicitly shows, that this is the ultimate question, which requires balancing between the pacta sunt servanda and reasonableness from the perspective of the will of the parties fair dealing, etc. The roadmap shows that in cases in which the everlasting contract term is found invalid, the reasoning is does not follow directly to the default rule of indefinite contracts being terminable, but instead points to the “incomplete contracts”. In practice this means that a consideration should be make in accordance with the rules of supplementation of contracts and omitting a missing term, taking in account the intentions of the parties. In case it would follow directly to the default rule, the default rule might fail to take these into account and reach an unreasonable outcome as well. In a sense, this is also, why in balancing the pacta sunt servanda and reasonableness the outcome leads to similar conclusion as dictated by the default rule. Based on the case law of Finnish Supreme Court it may be argued that the Finnish contract law sems to consider that perpetual agreements are at least somewhat possible, but as an exception may be terminated. The exceptional termination is not as exceptional as it would be in a classical hardship case, but instead reflect the Nordic perspective of reasonableness. There is no legislative rule in the Russian Civil Code prohibiting eternal contractual obligations, however limitations towards terms may be imposed by the Civil Code relevant to specific contract types. Thus, the qualification of a contract to a type, although not obligatory, is of high importance. The default rule for indefinite contracts is not universally valid in accordance with Russian law.
  • 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.
  • 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.
  • Sinisalo, Laura (2021)
    Tutkielma pyrkii vastaamaan tutkimuskysymykseen siitä, millä tavoin Englannin ja Suomen kansainvälinen yksityisoikeus toteuttavat tahdonautonomiaa merikuljetussopimuksissa. Englanti common law -maana, jonka tuomioistuimet valitaan usein toimivaltaiseksi oikeuspaikaksi ja laki soveltuvaksi laiksi muodostaa hyvän vertailuparin civil law -perinnettä edustavan ja aktiivisen merenkäyntimaa Suomen kanssa. Tutkimusmetodeita ovat lainoppi ja oikeusvertailu. Tutkielmassa esitellään aluksi kuljetusoikeudellisia asiakirjoja ja kansainvälisiä sopimuksia, joista olennaisimmat ovat konossementti ja Haag-Visbyn säännöt. Konossementti on maailmanlaajuinen kuljetussopimusasiakirja ja Haag-Visbyn säännöt tärkein kansainvälinen sopimus, jonka sopimusosapuolia molemmat vertailumaat ovat. Jotta vertailu olisi mahdollista, käydään läpi myös Englannin oikeusjärjestelmän erityispiirteitä. Tahdonautonomia on asetettu kansainvälisen yksityisoikeuden yhdeksi olennaisimmista periaatteista ja sen toteutuminen on riippuvaista kansainvälisen yksityisoikeuden normeista. Siispä myös oikeudenalan pääasiallisiin oikeuslähteisiin ja niiden soveltamiseen vertailumaissa täytyy perehtyä. Normit ovat sekä Suomessa että Englannissa pääosin lähtöisin EU:sta, Rooma I - asetus ja uudelleenlaadittu Bryssel I -asetus niistä tärkeimmät. Molemmat tunnustavat sopimusosapuolten oikeuden valita sopimukseensa soveltuva laki ja toimivaltainen tuomioistuin. Englannin tuomioistuimilla on kuitenkin EU-eron myötä mahdollisuus kieltää osapuolia käymästä oikeutta toisessa valtiossa, mikä ei EU:n oikeuden mukaan ole mahdollista. Myös tuomioistuinten tavoissa soveltaa kansainvälisen yksityisoikeuden ja vieraan lain normeja on eroja vertailumaiden välillä. Englannin oikeudessa vastuu on laajemmin osapuolten harteilla, mutta myös Suomessa osapuolten täytyy olla aktiivisia. Tahdonautonomia on luonnollinen jatke sitä vanhemmalle sopimusvapauden periaatteelle. Tahdonautonomian hyväksyttävyyttä voidaan perustella sen taloudellista tehokkuutta ja sopimuksentekokustannuksia vähentävillä ominaisuuksilla. Toisaalta on esitetty myös, että se on seurausta ihmisen luonnollisesta vapaudesta, sillä vapaan ja rationaalisen ihmisen täytyy saada sopia myös siitä laista, joka soveltuu hänen sopimussuhteisiinsa ja oikeuspaikasta, jossa kyseiseen suhteeseen liittyvät kiistat ratkaistaan. Molempien perusteluiden kautta päästään kuitenkin suhteellisen samaan lopputulokseen ainakin varallisuusoikeudellisissa sopimuksissa. Tahdonautonomian tavoitteena on lisätä ennakoitavuutta, oikeusvarmuutta ja suojata perusteltuja odotuksia. Täysin rajoituksetonta tahdonautonomiaa ei ole yleisesti hyväksytty. Tutkielmassa käydään läpi periaatteen olennaisimmat osa-alueet ja vertaillaan Suomen ja Englannin oikeustilaa eri osa-alueiden kohdalla. Kaikki osa-alueet eivät osoittaudu kuljetussopimusten alalla merkittäviksi. Olennaisimmiksi kysymyksiksi nousevat vieraan lain ja kansainvälisen yksityisoikeuden normien soveltamisen ohella julkisen edun suojelu, epäsuorien valintojen hyväksyminen, vaikutukset kolmansiin osapuoliin sekä erityisesti oikeuspaikkalausekkeita koskien forum non conveniens -periaate ja oikeudenkäynnin kiellon määrämismahdollisuus. Julkisen edun suojeluun liittyy ordre public -periaate ja kansainvälisesti pakottavat säännöt. Edellinen mahdollistaa vieraan lain säännöksen soveltamatta jättämisen, jos se on ristiriidassa foorumivaltion tärkeän julkisen edun tai perustavanlaatuisen arvon kanssa. Jälkimmäiset sen sijaan tulevat sovellettavaksi riippumatta siitä, mikä laki sopimussuhteeseen muuten soveltuisi. Epäsuorat tahdonautonomian osoitukset sekä valintojen vaikuttaminen kolmansiin osapuoliin ovat molemmissa vertailumaissa mahdollisia. Englannissa tosin privity of contract -periaate on tiukkuutensa takia johtanut monimutkaisempiin ratkaisuihin kuin Suomessa. Forum non conveniens -periaatteen soveltaminen ja oikeus estää toista osapuolta käymästä oikeutta toisessa maassa ovat mahdollisia englantilaisille tuomioistumille EU-eron jälkeen. Molemmat ovat olleet kiellettyjä unionin oikeuden mukaan. Oikeidenkäynnin kielto ei tosin sopisi suomalaiseen prosessioikeuskulttuuriin muutenkaan. Forum non conveniens -periaate mahdollistaa tapauskohtaisen joustavuuden tarkoituksenmukaisuusharkinnan tuomioistuimen toimivallan määrittelyssä. Tutkielman mukaan tahdonautonomia tärkeä ja samalla tavalla ymmärretty periaate vertailumaissa. Oikeusjärjestelmät eivät kuitenkaan ole identtisiä ja Englannin suurempi liikkumavara voi toteuttaa tahdonautonomiaa hieman paremmin.
  • 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.
  • 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.