Doctoral Theses / Doktorsavhandlingar Juridiska institutionen

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The Benevolent Border - Humanitarianism and Absurdity in European Migration Law
(2025-08-29) Åberg, Karin
In recent years, a number of humanitarian measures have been implemented within European migration law. Under the prevailing securitizing discourse surrounding migrants, they are often portrayed as young, healthy men seeking to dominate the ‘weak’ within their own communities (e.g., women, children, LGBT individuals, and the elderly). This dissertation examines how European states treat those depicted as victimized or vulnerable in such narratives. It analyzes three case studies in which humanitarian concern for these groups has influenced migration management. The first case explores the categorization of ‘vulnerable’ asylum seekers at EU hotspots, which creates certain exceptions to the externalized border regime. The second investigates the credibility assessment of sexual orientation in LGB asylum cases, focusing on the DSSH model and the increasing emphasis on shame and internalized homophobia. The third examines the situation of undocumented domestic workers and how their exploitation is systematically overlooked by state authorities. In all three case studies, efforts to humanize migration procedures are ultimately cancelled or distorted. This dissertation applies absurdity as a theoretical lens to analyze the tensions that emerge and to show how humanitarian measures become incompatible with the underlying border rationality that defines this area of law. It further explores how the practices described reflect both postcolonial and conservative understandings of care. As demonstrated, attempts to implement humanitarian care in European migration law often end up privileging the 'exceptional' migrant at the expense of others. Moreover, power and accountability are rendered invisible, as European states are cast in the role of benevolent helpers under this narrative.
Den födande patienten - En rättsvetenskaplig studie om normkonflikter i förlossningsvården
(2025-08-15) Sandegård, Elin
This study examines the legal status of patients within Swedish maternity care, focusing on the interplay between the legal framework and its practical implementation in healthcare settings. It contextualizes these issues through an empirical analysis of case files from the Swedish Health and Social Care Inspectorate (IVO) concerning maternity care between 2018 and 2021. Through this case-based analysis, the study identifies recurring themes and key legal challenges that emerge in practice. It explores how conflicts between patients and healthcare professionals are articulated, managed, and resolved within existing legal structures. The analysis is informed by a conceptual framework inspired by Anna Christensen’s theory of normative patterns, adapted to the maternity care context. In doing so, the study explores how patient rights and healthcare obligations manifest in practice, and how underlying normative tensions within the law shape these dynamics. The findings reveal significant tensions between legal norms and practical realities, particularly in the interpretation and application of core legal principles such as informed consent, self-determination and participation. These ambiguities highlight underlying normative conflicts embedded in the legal framework, as well as structural challenges facing maternity care providers. By exploring the intersection of the legal norms, medical norms, and clinical practice, the study contributes to a deeper understanding of the legal complexities in maternity care.
Ekologisk kompensation - Om juridik under ytan och relationen mellan rättsvetenskap och ekologi
(2025-05-16) Laas, Kristjan
This book concerns the relation between jurisprudence and ecology in realizing environmental goals. The starting point is the need to preserve and avoid further loss of habitats and biodiversity, often referred to as “no net loss”. This starting point carries the need of concrete limitations on human activities. Environmental compensation is used as an example of legal operationalization of the goal to stop further loss of ecological values. Through investigations of legal rules, the purpose of the rules, and how the rules are applied, the use of ecology in legal practice is studied. In cooperation with marine ecologists, eelgrass is the concrete context within which the connection between ecology and law is studied in detail. A central aspect of the work is how the legal system handles the fact that ecological results become part of the rules, making it possible to measure whether the rules are suitably applied or not. Through studies of Swedish legislation on compensation, legal control of small-scale coastal development, the impact of detailed guidance, and systems to realize compensation measures, the book contributes to highlighting the interconnections of law and ecology.
Environmental Taxes from the EU State Aid Control System Perspective – A Legal Analysis of the Integration of Environmental Protection
(2024-02-12) Pedroso, Joana
This thesis is a legal analysis of environmental taxes enacted by the Member States of the European Union (EU) as a tool to protect the environment from the perspective of the State aid control system (laws, rulings, and decisions on State aid). The research problem I address has two dimensions. First, the State aid control system adds complexity for lawmakers of the Member States already grappling with various legal, social, political, and economic challenges in environmental tax imposition. Pressures such as the European energy crisis, the Russia-Ukraine conflict, rising inflation, and extreme weather events exemplify these challenges. Furthermore, lawmakers’ tax sovereignty is conditional; they must not breach the Treaty on the Functioning of the EU (TFEU). In this thesis, I focus on the rules on State aid, notably the prohibition set out in Article 107(1) TFEU. This rule demands case-by-case interpretation and assessment of a State measure’s actual impact. Consequently, disputes arise from the Commission’s decisions and the EU courts’ rulings on whether State measures constitute State aid. Without expertise in State aid matters, lawmakers are likely to violate the State aid prohibition set out in Article 107(1) TFEU when enacting environmental taxes. Environmental taxes may be general (not breaching Article 107(1) TFEU), compatible aid (breaching Article 107(1) TFEU but allowed under Article 107(3) TFEU), or incompatible aid (breaching Article 107(1) and (3) TFEU), in which case the Member State concerned is not authorized to impose or to keep imposing the tax. Due to the implications of the latter two scenarios (compatible or incompatible aid), the issue of incoherence within the State aid control system concerning environmental protection values of both the EU and the Member States laws and policies is just as crucial as addressing the system’s inherent complexity. In theory, Article 11 TFEU establishes an integration principle that mandates the integration of environmental protection requirements (values articulated in Article 191 TFEU and further developed in the environmental laws of the EU and the Member States) into the EU policies, including State aid. This integration is achieved through the interpretation of the rules on State aid in relation to environmental taxes. Any inconsistencies in this regard impact the EU and the Member States’ response to environmental issues and pose a problem for everyone, but in particular for the Member States that are trying to deal with the environmental issue. Therefore, it is my thesis purpose to provide clarity on the complexities of the State aid control system for lawmakers, enabling them to legislate on environmental taxes with full awareness of these complexities. Thereby, lawmakers can, from a bottom-up approach, foster the interpretation of the rules on State aid through their choices within the environmental tax design. Additionally, this thesis provides scholarly insights into the State aid control system’s inconsistencies concerning the interpretation of the rules on State aid in relation to environmental taxes and the integration principle of Article 11 TFEU.
At the Border – EU Law, Asylum and the Spatialities of Fundamental Rights
(2024-02-01) Wejstål, Kristina
This study is a contribution to the field of critical migration law studies. Examining the externalization of EU migration and border control, it addresses the asymmetry between where EU border control takes place and where the obligation to protect fundamental rights applies under international law and EU law. Instead of offering legal solutions on how to bridge the gap of incoherence, the study contextualizes the asymmetry at two sites of EU migration and border control: the Belgian embassy in Beirut and the border crossing point at Beni-Enzar in Melilla. Addressing these sites as scenes of spatio-legal interaction, the study offers examples of how EU migration and border control law interacts with space, and how this interaction shapes the asymmetry. The aim of the study is to critically examine and to demonstrate how the spatio-legal interaction of the EU border regime affects the conditions under which individual rights can be enforced at the EU’s external borders. Inspired by legal geography – a field that addresses the complex co-constituting of law and space – this study employs a qualitative legal doctrinal method, analyzing the protection of individual rights within the contextual setting of the scenes of spatio-legal interaction. With theoretical perspectives from Massey and Philippopoulos-Mihalopoulos, it applies the concept of invisibilization to the EU border regime, subjecting it to theoretical and critical analysis, and demonstrating that fundamental rights – and the state obligations corresponding thereto – are invisibilized through the interaction between law and space. The study concludes that the spatio-legal interaction of the EU border regime generates a web of control, a borderscape, that serves to obstruct protection seekers from entering the Union. In borderscape, the border takes a variety of shapes, advancing and retreating in relation to where you are and who you are. It controls space and mobility, but without necessarily triggering the obligation to protect fundamental rights when protection seekers are ‘at the border’. Taking account of space and of spatial relationships, this study contributes to an understanding of the conditions under which individual rights can be enforced at the EU’s external borders. In the process, it sheds new light on how these borders can be comprehended.
Vänskapens kunskap och kraft. En rättsvetenskaplig studie av vänskapen omkring unga målsägande i sexualbrottmål.
(2023-09-28) Hultegård, Kristina
This thesis delves into the theoretical and practical legal aspects of friends and friendships among young victims of child sexual abuse. The study examines these friendships and their impact on victims of sexual abuse, focusing both their temporal and causal contexts in relation to subsequent legal investigations. Through a systematic analysis of transcripts from police interviews conducted with young victims and their friends, this study demonstrates how these friendships can be valuable, or has the potentialiality for value, by enriching the testimonies of the victims, both before and during the legal proceedings. Consequently, this thesis aims to illustrate the investigative value of these testimonies by shedding light on the conversations and interactions among young friends in the aftermath of a sexual assault, as well as the time before a legal trial, thereby demonstrating how the relational embeddedness condition these children as legal subjects. This is particularly relevant in conceptualizing how and why the responses and actions of young victims, following a sexual assault, are influenced by the relationships in which they are immersed. The primary contribution to the field of jurisprudence lies in the study’s methodologies. Drawing on archival and literary studies, the methodology employed in this thesis has been designed to identify and address the lived experiences that precede and are subjected to judicial processed. This approach is especially well-suited for examining lived experiences that, as is the case with the young friendships in this study, may be considered peripheral but nevertheless appear in the documentation generated by the criminal justice process.
TO BELIEVE OR NOT TO BELIEVE – IS THAT THE QUESTION? A critical study of how the Swedish migration courts handle their responsibility to judge in asylum cases
(2023-05-08) Meyerson, Annkatrin
In this dissertation, the Swedish migration courts’ handling of the risk responsibility of judging in asylum cases is studied. An empirical study of cases from the migration courts is followed by a critical analysis of the findings considered against the background of the asylum legal framework. The judges’ choices of what to present in their judgements is then analysed through the lens of Hannah Arendt’s theory of ‘the faculty of judging’; the responsibility to judge in high-stakes situations. The results show that, the emphasis in the judges’ argumentation lies on the criteria used as indicators to assess the credibility of the asylum seeker’s narrative, while arguments on law, facts, circumstances, and the foundations of these arguments are less frequently emphasized. The analysis of these results in the light of the legal framework makes visible a shift of emphasis at different levels; from an assessment of the risk of return based on law and facts, to an assessment of the quality of the asylum seeker’s narrative. Through these shifts, credibility is given the status of a legal requisite detached from the principle of non-refoulement. By making uncertainties, ambiguities, doubts and choices about facts and law invisible, the judgments lack essential parts of that which, according to Arendt, constitutes the faculty of judging. The outcome is presented as the only possible one, thereby leaving little room for the application of the principle of evidentiary alleviation; ‘benefit of the doubt’, established in asylum law, which serves to ensure the maintenance of non-refoulement. By choosing to narrow down the legal question to a decontextualised assessment of the credibility of the asylum seeker’s narrative, the core issue – the potential risk of sending the asylum seeker back to an area where she or he is at risk of being subjected to ill-treatment prohibited by law – recedes into the background. What emerges is a reluctance to judge on that which is at stake in asylum cases.
Odla fisk rätt - en systemanalytisk undersökning av den rättsliga styrningen av svenskt vattenbruk
(2022-08-23) Kyrönviita, Jonas
Undersökningen fokuserar på den rättsliga styrningen av den svenska vattenbruksnäringen – en näring som under lång tid har identifierats som en potentiellt central del i den svenska livsmedelsförsörjningen men som inte har varit föremål för den utveckling som under lång tid varit ett uttalat mål. Näringen är samtidigt ingalunda oproblematisk och den rättsliga styrningen används för att tillförsäkra en hållbar näringsutveckling i enlighet med uppsatta mål, såväl avseende skyddsintressen som produktionsintressen. Det övergripande syftet för undersökningen är att utvärdera funktionaliteten i den rättsliga styrningen av det svenska vattenbruket i förhållande till relevanta politiska mål. Syftet uppnås genom att en systemanalys tillämpas som genomförs i fyra steg: (1) det system som är föremål för undersökningen identifieras, (2) systemet tillskrivs mål, (3) systemets struktur fastställs och de enskilda komponenterna beskrivs i detalj samt (4) relationen mellan systemets komponenter framställs och inkonsekvenser mellan mål och funktion identifieras. Undersökningen visar att systemet för den rättsliga styrningen av vattenbruk i Sverige är fragmenterat och komplext vilket leder till en styrning som framförallt har förutsättningar att detaljstyra flera av verksamhetens enskilda delar var för sig mot uppsatta målsättningar men som även ger förutsättningar för en administrativt tungrodd och ibland motsägelsefull styrning som har svårt att effektivt styra mot övergripande mål.
Bioprospecting and deep-sea genetic resources in a fragmenting international law
(2021-05-19) Krabbe, Niels
This thesis investigates if public international law manages to function as a coherent system in the case of deep-sea bioprospecting, where rules in three regimes provide seemingly inconsistent obligations for states. Based on an investigation of the development of bioprospecting and patenting of deep-sea genetic resources, the study explores how rules in the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD) and the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS) apply to such activities. It is illustrated how rules of these treaties provide different and seemingly inconsistent obligations for states in the context of deep-sea bioprospecting. This is explained by their origin in different regimes of public international law with distinctively dissimilar perspectives on the appropriation of genetic resources. It is discussed how the prima facie norm conflict in some cases can be resolved on the basis of the principles on treaty application and interpretation under the Vienna Convention on the Law of Treaties. In other cases, such as the obligations for bioprospecting of deep-seabed micro-organisms, states are faced with an irreconcilable dilemma; the different treaty obligations cannot be simultaneously applied. In order to prevent such conflicts and ensure the credibility of international law as a functioning system, new approaches are suggested, in particular the development of holistic conflict clauses and lex specialis. The case of deep-sea bioprospecting calls for a more state-oriented perspective in the debate on the fragmentation of international law.
Scaling Marine and Water Management
(2021-05-05) Westholm, Aron
This book is concerned with the linkages between legal systems and the complexity of nature. It explores how legal delimitations of ecosystems and diffusion of management across different levels of administration affects priorities and outcomes of natural resource management. The book departs from the notion that law needs to be responsive in relation to the changing nature of social-ecological systems while still ensuring basic legal principles, such as the rule of law, legal certainty, and predictability. The book comprises two case studies that examine how priorities and outcomes of natural resource management are affected by the specific administrative level and spatial scale at which it takes place. The first case study concerns the Swedish system for coastal and marine spatial planning. Through the use of interviews, review of legal material and planning documents, the case study highlights how conceptions of marine and coastal areas are formed. The second study explores the fresh water management regime that is set up within the EU through the Water Framework Directive. It reveals how legal delimitations of ecosystems are generally based on an insufficient understanding of nature and scale. Using the map-making metaphor introduced by De Sousa Santos (1987), this work exposes distinct perspectives in natural resource management, where some interests and processes are highlighted and others are placed in an administrative periphery. The book contributes to a wider debate concerning how nature must be understood in law-making.
Wreck Law - A Systematisation of Legal Interests and Conflicts
(2021-04-14) Kern, Jhonnie Mikael
The purpose of this thesis is to systematise legal interests and conflicts in relation to wrecks and wreck removal. The ambition of the systematisation is to provide a framework and a perspective of this area of law and the context in which these interests and conflicts reside. In order to achieve this, a classification of different wrecks is made. Wrecks are distinguished based on the problems that they can cause as well as other factors such as proprietary interests, ethical aspects and time. The study explores wrecks that pose hazards to the environment or to the navigation of other vessels, as well as wrecks that are subject to different needs of protection as a consequence of being dangerous, historical or sites that contain human remains. Wrecks are also distinguished in relation to time depending on whether the wreck is historical, modern or in-between these two categories. In relation to all these aspects, several jurisdictions, ranging from English law to the Nordic legal systems, and the variety of norms and perspectives that they bring to the area have been studied. Also the historical background to these issues as well as different interpretations and definitions of wreck are discussed. The systematisation can be used in various ways, e.g. in order to analyse problems involving wrecks and wreck removal as well as discussing possible regulatory mechanisms and solutions that can deal with the identified interests and conflicts. By systematising the interests and conflicts, a structure is created which makes it easier to approach and understand this area of law and the legal norms that are involved. The contribution of this work amounts to new knowledge because of the understanding that the structure brings as a whole but also in its different parts along with the legal issues that are analysed there.
Det civilrättsliga i svensk inkomstskatterätt
(2020-09-16) Emblad, Patrik
The relationship between tax law and private law has been discussed extensively in the legal sources of Swedish income taxation. However, what is meant by private law has not been elaborated or problematized to any greater extent. The legal sources of Swedish income taxation seem to presuppose private law as something given; an external entity that tax law relates to. In this thesis I set out to critically analyze this premise by using discourse theory and immanent critique. When doing this I depart from a distinction between two different perspectives on private law: substantialism and functionalism. This distinction appears in the private law literature as a way of describing the differences between the continental legal culture and the Nordic legal culture. The former tradition is characterized by substantialism, which means that concepts and rights are seen as having a substance. Consequently, legal problems are primarily solved by making deductions from legal concepts. The latter tradition is characterized by functionalism, according to which concepts are seen as relative. Legal problems are solved by balancing different interests and by regarding the consequences of different solutions. In my thesis I show that the treatment of private law within Swedish income taxation is dominated by substantialism. I problematize this treatment of private law by showing that private law concepts and private law rights to a large extent can be understood in contradictory ways. Consequently, the reference to private law can support contradictory solutions to tax law problems. I further on show how the understanding of the relationship between tax law and private law changes when private law is addressed through a functionalistic perspective instead. This perspective is underpinned by pragmatism and strives to make visible the underlying ideological interests that are being reproduced and protected through the reference to private law when solving tax law problems.
The Common Good in Common Goods - The Decommodification of Fundamental Resources through Law
(2020-05-18) Bailey, Saki
This dissertation is divided into three parts. Part I analyzes the Commons as a post-capitalist strategy accomplished through law by developing an alternative social theory of the market as a social institution. The social theory developed situates the actual, historical and potential, future roles of the commons within larger context of epochal shifts in historically-specific social relations critiquing the mainstream view of methodological individualism. Within this frame, it develops an analysis for re-embedding the market through commons as “commons property institutions,” a property institution where multiple entitlement holders hold the entitlement to use, with none having the entitlement to exclude others within the commons community, and none having the entitlement to transfer at market rate outside of the community. The project of re-embedding the market through commons property institutions (CPIs) unites the work of Elinor Ostrom (building on John R. Commons & Wesley N. Hohfeld) on the commons, and the legal foundations of the economy more generally, with the social institutional analysis of the market of Karl Polanyi, Robert Brenner and Ellen M. Wood, and the legal institutional analysis of the market of the American Legal Realists (Robert Hale & Morris Cohen). CPIs throughout are presented as one possibility in a spectrum of institutional options, beyond market and state, available for experimentation in non-market, collective, democratic forms of organizing the allocation, production and distribution of specific fundamental resources through law. In Part II, the social and legal institutional analysis of the market developed in Part I is then analyzed in view of the central schools of legal theory: legal formalism, the positive social sciences, legal realism (American and Scandinavian), Law and Economics, Critical Legal Studies and Alternative Legal Dogmatics (Finnish/Swedish). A “theory transparent” approach to law is promoted that integrates: theory (legal theory, socio-legal theory, and social theory), purpose and values into the analysis of law and fact. This “theory transparent approach” is then used to construct and explain the critical left project at the center of this dissertation which asks: how can commons property institutions (CPIs) best support the purpose of the decommodification & democratization of fundamental resources through law? Part III analyzes this question in the context of one fundamental resource, housing, and comparatively evaluates different non-market, collective and democratic forms of housing like the housing cooperative and community land trust (CLT). This section is aimed at offering a practical tool kit for citizens, activists, and jurists (focused on the US context) to decommodify and democratize housing through CPIs by disaggregating and recombining different elements of associational law and property law in constructing optimal CPIs towards those ends, and a specific proposal for how to scale, entrench, and generalize limited equity for all (not only for those of low and moderate income) through the CLT model.
Kontrollägande och uppköpsreglering - Likabehandling vid offentliga uppköpserbjudanden och effekterna i bolagsstyrningen
(2020-03-19) Lidman, Erik
A question of growing importance in the corporate governance debate is shareholder engagement in listed companies, and in a legal context, what regulatory interventions that can be made to increase shareholder engagement. This thesis examines this question in relation to the regulation of takeovers, with the purpose of analysing how the takeover-rules affect the conditions for shareholder engagement in listed companies. The author first analyses the functions of the shareholders in corporate governance, as intended by the rulemaker. Six functions are identified: voting on the general meeting, general monitoring of the board, monitoring management remuneration, overseeing related party transaction, engaging in dialogue with the board and, when applicable, adapting governance to the required level of entrepreneurialism. The author then identifies five antecedents for shareholders to exercise these functions: sufficiently large holdings in individual companies, sufficient large holdings in relation to the shareholders’ equity portfolios, adequate knowledge for shareholder engagement as well as an organisation that allows engagement, that shareholders can acquire compensation for the costs of engagement, and that there is a sufficiently well-functioning market for corporate control. Based on these antecedents, an analysis of whether the takeover-rules have a negative impact on shareholder engagement is presented. The conclusion is that the mandatory bid rule and the restrictive rules on premiums for superior voting shares can be assumed to have a negative impact on shareholder engagement. The mandatory bid rule and the rules on premiums for superior voting shares are then analysed from a contractarian perspective. The conclusion of this analysis is that while the rules on mandatory bids as well as restrictions on voting premiums seem to be in line with the principles of company law, and therefore from a contractarian perspective are in line with the protection that shareholders in a company can reasonably expect to receive, there is room to soften the rules to facilitate shareholder engagement without risking to undermine the purpose of the capital market regulation by increasing the threshold for the mandatory bid rule to 40 percent, and by allowing limited premiums for superior voting shares.
Omöjligt uppdrag. Om rättslig styrning och normkollisioner i skolans kompensatoriska uppdrag
(2019-09-30) Ryffé, David
The thesis aims to analyze how two ideological concepts, “the individual” and “the collective”, impact the Swedish school system from a legal point of view. On basis of the theoretical groundwork drawn up by professor Anna Christensen I claim that one can observe two different normative patterns in the law relevant to the aim and delimitations of the study. The pattern that laid the foundation for the Swedish elementary school is collectivistic and relates to the idea about one school system for everyone, breaking down social barriers. Such a pattern is concerned with integrating students with different capabilities, keeping the collective together as one. The other pattern, which has gradually taken over as the dominant cluster of values, is concerned with the rights of the individual. This second pattern primarily manifests in the legal setting as the right to special education on the basis of the students' special needs, which might lead to the student being separated from the bigger group (collective) in order to meet those needs. The tension between these two patterns is a mirror of the tension between collective and individual values on an ideological level that can be observed in the legal rules, the legal principles and in the social norms dominating in “the pedagogical landscape”. There is, therefore, a “collision of norms”, both within the legal system and between legal and pedagogical norms, which is determinantal to the expediency of the legal regulation. There are few, if any, rules or guidelines to balance these collisions of norms, or to give teachers and headmasters directions regarding which values that should be seen as hierarchically superior. As such it is difficult to predict how the pedagogical profession will choose between integration for the benefit of the collective or segregation to take into account the needs of the individual. No matter the choice, one normative pattern will be overlooked, in violation of the law. Because the legal logic surrounding the school system is largely based on ex-post supervision, the state will criticize the pedagogical choice, no matter what it is. Such an order lays the foundation for lack of effectiveness where it becomes more important to do what is legally correct than that which, from a pedagogical point of view, responds best to the students' respective needs. In order to overcome these shortcomings in legal governance, a choice must be made about if the collective or the individual shall be regarded as worthy of greatest protection, as well as changes in the legal set-up in order for different forms of governance not to counteract each other or the overall purpose of the school system.
The EU investment court system. A viable reform initiative?
(2019-08-21) Lenk, Hannes
This thesis studies the Investment Court System - the EU’s response to the backlash against investor-state arbitration, and its contribution to the ongoing multilateral reform initiative in UNCITRAL. It includes, on the one hand, an investigation of the EU legal framework governing the conclusion of agreements with third countries that feature the Investment Court System, and examines, on the other hand, whether this permanent and court-like structure addresses common concerns over the legitimacy of investor-state arbitration and its central actors. Part I explores the historical, economic and political context that led to the emergence of the contemporary investment treaty regime, in which investor-state arbitration became embedded as a central pillar. This part explains further that investment protection finds its roots in the imposition of Western conceptions of property and ownership on developing countries as a means to retain Western influence throughout the post-colonial era. Part III analyses the EU constitutional framework, the EU’s competence to conclude investment agreements with the Investment Court System and the compatibility of these agreements with the EU Treaties in light of recent case law of the Court of Justice. This part illustrates flaws in the Court’s reasoning in Opinion 2/15 on the EU-Singapore Free Trade Agreement, and flags remaining challenges that the Investment Court System must overcome with respect to the EU principles of autonomy and non-discrimination. Part IV discusses the institutional and procedural features of the Investment Court System in light of the often-disputed legitimacy of investor-state arbitration. This part concludes that although the EU addresses many of the deficiencies of the traditional arbitration-based model, it also introduces a range of shortcomings – not least the extensive influence of the contracting states over the process of dispute resolution. Although the Investment Court System constitutes a significant contribution to the reform of investor-state arbitration, the EU’s constitutional framework and EU internal and political developments threaten to undermine the multilateral character of the ongoing reform processes in UNCITRAL by dictating the terms on which this process ought to be carried out. Ultimately, this presents a risk that the Investment Court System provokes resistance from developing countries and other relevant actors that are effectively excluded from shaping the future of investor-state dispute settlement.
Förvaltning som verksamhet – bidrag till offentligrättens allmänna läror
(2019-05-22) Johansen, Tormod Otter
The thesis gives a contribution to the general theory of administrative and public law in order to develop a systematic and conceptual framework for better and more realistic descriptions of public administration. The central claim is that administrative law should take as its starting point the fact that public administration is concrete activity. This instead of focusing on administrative procedure and exercise of public authority (myndighetsutövning). Rather than being seen as a peripheral aspect surrounding the normal core of administrative procedure, the concrete activity should be seen as the normality. Administrative procedures and exercise of public authority instead function as exceptions which are procedurally regulated to a higher degree. The understandable focus in administrative law on these parts of public administration activity should thus be adjusted through a shift of perspective towards administrative activity as a whole. The first chapter describes the theoretical and methodological approach. The first aspect is a broader view of public law, inspired by global administrative law, international public authority, the German tradition of Staatslehre , the contemporary revival of administrative law in the Neue Verwaltungsrechtswissenschaft, and political jurisprudence (Martin Loughlin). Theoretical inspiration comes from Scandinavian legal realism, the shift of focus from the sovereign towards the administration (Michel Foucault, Giorgio Agamben). Also concerted action (Hannah Arendt) and concrete order thinking (Carl Schmitt) as part of a broader vein of institutionalist thinking (Santi Romano, Marco Goldoni). The methodological approach is inspired by the concept of description (Anne Orford, Michel Foucault) as well as a materialist perspective and immanent critique (Karl Marx). The second chapter consists of a close reading of all important doctrinal and legislative sources in Swedish administrative law pertaining to the theme of the study. Important findings include: The great difficulty with which administrative law can grasp the heterogenous activity of public administration; The negative definition of administration as what is left of state or public activity when legislation and adjudication is positively defined; The critical development of the concept of exercise of public authority in connection with the codification of general administrative law in the Swedish Administrative Procedure Act of 1971; The lack of positive definitions and in general discussion, theoretical or otherwise, of concrete activity in administrative law literature. The third chapter develops the immanent critique through an analysis of the different components of administrative activity, especially before, during, and after an administrative decision. Six new or developed concepts are suggested: unregulated administration; measure as a basic concept in administrative law; forms of administrative action (Handlungsformen); two dimensions of exercise of public authority; consumption of exercise of public authority in decisions; and a special administrative relation to complement the general administrative relation and the private law relation. The fourth and final chapter summarizes the preceding study and suggests future avenues of research. The main aim here is to further develop a broader public law discipline, incorporating international research, comparative studies as well interdisciplinary sources. Along this path there is a hope and potential for a restored eclectic discipline that could take up the mantle of what Hegel called a »science of the state».
Environmentally Sound Management – Its status and role in the sea-land interface regulation of wastes
(2018-05-25) Argüello, Gabriela
Waste management is essential for ensuring the earth’s resilience and it remains one of the greatest challenges for our and future generations. As societies experience further population growth and economic development, waste management poses both challenges for the protection of the environment and human health. To face these challenges, environmental law requires shifting attention from media-specific pollution regimes to integrative life-cycle approaches of waste management, i.e., from the prevention of waste generation to the actual handling of wastes. Currently, wastes are regulated incidentally within media-specific pollution regimes, or in relation to certain hazardous substances. In cases where wastes are directly regulated, this regulation is concerned with a particular activity. Additionally, waste management has been traditionally considered as a national affair except in cases dealing with pollution transfer and transboundary movements of wastes. This thesis is concerned with the management of wastes generated on board vessels while at sea and after they are discharged to port reception facilities. Ship wastes are studied from an international and EU law perspective. These wastes were chosen for three reasons. First, ship wastes are incidentally regulated within the regime of marine pollution. Second, the prevention of ship-source pollution is heavily reliant on the provision of adequate port reception facilities on land. However, the coordination between these facilities and further downstream management operations is still an unresolved issue. Finally, ship wastes were chosen due to incidents related to the unsafe management of ship wastes on land. These incidents increased the attention towards the management of ship wastes after their discharge on land and framed the analysis of such management from a conflict of law perspective. Particularly, whether the transboundary movement of waste regime is applicable to ship wastes while at sea and after their discharge on land. This thesis examined the regimes set up to deal with the transboundary movement of wastes and ship-source pollution so as to elucidate the obligations and legal principles governing such regimes. Considering the rationale behind these regimes, the author concludes that treaty obligations concerning transboundary movements of wastes are inapplicable to ship wastes while on board ships and on land. Despite the limitations of the transboundary movement of wastes regime, the thesis argues that the principle of Environmentally Sound Management (ESM) embodied in this regime has gradually transformed into a legal principle. The most important contribution of ESM is its integrative function. This integrative function has several outcomes. First, ESM is the point of departure for addressing legal gaps in the regulation of wastes, and consequently it provides the desired coherence to the legal system since it acts as a bridge between several regulatory and sectoral levels. Second, ESM offers a new light with which to understand and interpret existing obligations. Finally, ESM provides a renewed impetus to regimes that directly and indirectly govern wastes. This impetus translates into greater coordination and the establishment of cross-sectional policies.
Rätten till biträde – Om biträdeskostnaders hantering vid svenska domstolar
(2017-11-06) Wejedal, Sebastian
The term “Access to Justice” (AtJ) refers to the fundamental notion that all people – even disadvantaged groups of society – should enjoy effective legal/judicial protection, ultimately through the courts. Accordingly, the principal targets of the AtJ-movement’s criticism have been so called “Access Barriers”, i.e. different legal and/or practical obstacles that make it difficult, or even impossible, for the general public to turn to the courts in order to vindicate their rights. The most significant barrier is legal fees in general, and counsel fees in particular. In a vast number of cases, the European Court of Human Rights (ECtHR) has concluded that law – substantive as well as procedural – is a rather complicated matter, which is often unintelligible to the layperson. Consequently, many self-represented litigants are neither accorded effective access to court (AtC), nor a fair trial – simply because they lack the skills necessary to present their case properly and competently. Therefore, the right to counsel has gradually evolved into a fundamental human right – not just in criminal cases, but also under the civil head of Article 6 of the European Convention on Human Rights (ECHR). Before Swedish courts, the parties to a dispute are always free to hire an attorney to conduct their case. In this narrow sense, the “right to counsel” is unconditional under Swedish law – both before the general courts and the administrative courts. In practice, however, the right to be assisted by counsel is conditional, since hiring a lawyer is always associated with a cost. In this way, a right that is theoretically bestowed on all is de facto denied many by the realities of economics. Or as the saying goes: “Justice is open to all; like the Ritz Hotel.” It is an undeniable fact that most litigants will not be able to obtain counsel, if counsel fees are not covered by a legal aid and/or legal protection insurance scheme, or at least reimbursed through cost shifting rules. Against this background, this thesis examines how counsel fees are handled before Swedish courts in relation to the imbricated notions of AtJ and AtC. More specifically, the thesis discusses (1) “party funding” (i.e. cost shifting), (2) “public funding” (i.e. legal aid) and (3) “third-party funding” (i.e. legal insurance), with a comparative perspective on the Swedish civil, criminal and administrative procedure. Since a right to counsel can be derived from Article 6 of the ECHR, Swedish law is also compared with the case law of the ECtHR. Lastly, the thesis criticises “simplification of procedure” as an unrealistic alternative to lawyer-conducted litigation, at least in court proceedings which are adversarial in structure. The thesis argues that all people are not guaranteed equal AtJ in Sweden and that Swedish law – in some respects – is not even in compliance with the standards set by the ECtHR. With regard to the general courts, it is argued that the rules concerning assignment of public defence counsel are constructed in a way that infringes the suspect’s fair trial rights under Article 6. Before administrative courts, moreover, it is argued that the absence of legal aid (as well as legal insurances), combined with a default application of the American (“no-way” fee shifting) rule give rise to Access Barriers, since most individual parties (usually “one shot litigants”) are forced to proceed pro se in disputes against highly skilled adversaries, viz. state and municipal agencies (“repeat player litigants”). In view of this asymmetry, it is asserted that self-represented litigants are not always guaranteed effective access to a court/a fair trial.
Regulating Vessel-Source Air Pollution - Standard-Setting in the Regulation of SOx Emissions
(2017-10-11) Almestrand Linné, Philip
Emissions of sulphur oxides (SOx) cause considerable global environmental and human health impacts including acidification, climate change, and increased premature deaths in human populations due to serious heart and lung diseases. Although recently revised regulations in MARPOL 73/78 Annex VI are expected to decrease SOx emissions from ships, it is clear that these regulations will need further development. Even forthcoming requirements for SOx emissions from marine sources will still be considerably less strict in 2020 than the requirements for SOx emissions from terrestrial emission sources in force today. Without further regulatory developments, emissions of harmful SOx emissions from ships will persist, and will also indirectly hinder the efficient operation of available exhaust aftertreatment devices for other air emissions from ships. This thesis examines the regulation of SOx emissions from ships with a focus on the dominant type of regulation: ‘command and control’ (CAC) regulation. The purpose is to identify and examine historical and current differences between standard-setting in the regulation of SOx emissions from terrestrial sources, and the regulation of SOx emissions from marine sources. Standard-setting differences are considered across three regulatory scales (international, regional, national), with a theoretical and methodological foundation mainly in international environmental law and regulatory studies, and with the further aims of identifying the underlying rationales for the key differences in standard-setting, the regulatory effects of these differences, and the possibilities of improvement of SOx emissions regulation in the marine setting. Five categories of environmental standard-setting are examined: (a) product standards; (b) process standards; (c) emission standards; (d) environmental quality standards; and (e) other standards. In conclusion, this thesis argues that standard-setting in the regulation of terrestrial and marine SOx emission sources differs on all regulatory scales, both historically and presently. A key difference in standard-setting is that the control of SOx emissions from terrestrial sources has relied on combinations of standard-setting approaches, whereas marine emission sources have primarily been controlled with product standards. Arguably, the emission to be controlled has been a crucial decisive factor for the choice of standard-setting type. Other decisive factors were inter alia technical, economic, and institutional. The regulatory effects of the key differences are that experiences were gained in the terrestrial regulatory setting from using various forms of regulatory standards compared to the marine setting. The possibilities of improvement of SOx emissions regulation in the marine setting depend on perspectives and priorities. If the ambition is to refine the precision of standard-setting in SOx emissions regulation, there are improvement possibilities. Three broader implications of this study’s results are highlighted: regulatory studies can provide deeper understandings of the design of regulation; the analysis of standard-setting against a surrounding explanatory context can demonstrate the influence on standard choice of factors such as emission type, technology, and science; and regulatory studies can be used to analyse large quantities of multiscale regulatory material, which can yield better overviews of a regulatory landscape.

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