Disputationer 2023

Max Hjärtström

Competition Law's Market Failure Paradox: Economic Efficiency, Consumer Welfare and Public Policy in EU Antitrust and State Aid Law

Datum för disputationen: 18 december   
Fakultetsopponent: Professor Chris Townley, King`s college
Ämne: civilrätt

Abstract

Contemporary markets grapple with pressing challenges to secure socially and economically outcomes. Against this backdrop, market failures, notably those accentuated by sustainability and income inequality issues, have risen to prominence in competition law discourse, both doctrinally and in the realm of policymaking. This dynamic hints at an evolving paradigm: competition law might no longer be immune to suboptimal market outcomes that reduces social welfare.
The purpose of this thesis is to investigate the role and value of market failure theory in competition law when assessing the compatibility of public policy measures. Over the past two decades, competition law has undergone a modernisation process, leaning towards a more economic approach prioritising economic efficiency and consumer welfare. However, within this economic framework, the outcome of broader public policy goals remains nebulous. A reasoning by analogy to the analysis of private restrictions of competition, suggests an equally more effect-based approach to public policy intervention under those provisions. To determine whether public policy intervention in the market is warranted welfare economic has developed the theory of market failure. This construct has gained some traction in EU antitrust scholarship as a concept capable of explaining the outcome of public policy measures. Intriguingly, thesis unveils a significant transformation – market failure’s evolution from a mere policy term to a legal concept, marking the juridification of the theory.
Nevertheless, a hurdle persists. The ambiguity surrounding the definition of market failure, traditionally rooted in welfare economic, poses a challenge. Conventionally, it construed as an inherently welfare economic theory. In this respect, it contours beyond economic efficiency remains nebulous. If a traditional view is unsatisfactory the question arises if we can conceive a new alternative understanding of market failure in EU competition law? This thesis takes on that task by dismantling the different meanings of a market failure test in order to assess its potential role within the legal framework.
The research question which this thesis addresses is:
What value, if any, does market failure hold within the legal analysis of public policy intervention on markets in EU competition law?
In order to reply to the research question the thesis have three main aims.
First the thesis aims to establish a framework for assessing the relevance of market in EU competition law. The theory of market failure must be conceptualised as a tool to systematise the applicable law. Therefore, the different meanings of market failure across economic, legal and political spectrums are dismantled. Through this exploration, two discernable standards of market failure arise: a narrower and a broader understanding. It is suggested that the principle of proportionality emerges as a critical tool to conceive market failure as a legal requirement, leading to the formulation of a ‘market diagnostic’ test.
Second, the market failure framework is applied across the different areas of EU competition law, thereby determining its functionality. This entails an assessment of legal documents and a critical assessment of the proportionality test’s application in the case law of the EU Courts.
Third, the meaning of market failure in the different fields is dissected. The role of, and relationship between, the different grounds for derogations within that framework are analysed in order to assess the nexus of market failure in EU competition law. An EU competition law-specific doctrine of market failure emerges, potentially diverging from its economic counterparts.
It is concluded that EU competition law embodies a striking ‘market failure paradox’. Both theoretically and practically, a discord is evident between the legal framework and empirical economic insights. The ubiquitous nature of market failures, as per economic theory, stands in stark contrast to their exceptional treatment in EU competition law. This theoretical paradox leads to inconsistent and ambiguous enforcement policies. Moreover, the paradox is also present from a practical point of view. Here, it is shown that the role and value of market failure remain fluid, moulding itself to distinct objectives across EU competition law sectors.

Läs mer om Max Hjärtströms avhandling i Lunds universitets forskningsportal.

Scarlet O´Donnell

International Responsibility for Activities in Outer Space in the Modern Space Age: Article VI of the Outer Space Treaty in the context of international space law and public international law

Datum för disputationen: 11 december   
Fakultetsopponent: Professor Irmgard Marboe, Wiens universitet 
Ämne: folkrätt

Abstract

This dissertation is set in the context of the modern space age, which is characterised by an overall increase in space activities on a global scale and a relative increase in private and commercial space activities. Space has become a business case.

This study analyses the principle of international responsibility for activities in outer space as mainly codified in Article VI of the Outer Space Treaty. The research differentiates four central aspects that, combined, provide a thorough and extensive assessment of the research topic. The study concludes that: 

(1) International space law is a special field of public international law and can best be analysed by taking into account relevant norms of public international law; 

(2) The legal regime of international responsibility for activities in outer space draws on norms of international space law, norms of international responsibility law, and norms of the law of treaties. Its conception closely resembles the conception of international responsibility under international responsibility law, however, with the crucial difference that it applies a deviating regime of rules of attribution: States can incur international responsibility for all ‘national activities’ carried out by non-governmental entities under their jurisdiction; 

(3) International responsibility for activities in outer space must be considered in relation to other central concepts of international space law such as the regime on liability or the framework on registration of space objects. In this study, the assessment is limited to the elements of ‘launching State’ and ‘State of registry’. The analysis uses a differentiation between static and dynamic norms and assesses their interrelation with Article VI of the Treaty; 

(4) The activities of non-State actors are regulated by Article VI Sentence 2 of the Treaty, which constitutes a primary norm of international law. It requires these activities to receive ‘authorisation’ and ‘continuing supervision’ by the ‘appropriate State party’. Interpretation of these elements clarifies the international legal obligations that State parties to the Outer Space Treaty are under by virtue of Article VI Sentence 2. 

This study provides methodologies for interpreting international responsibility for activities in outer space in a contemporary context. The analysis shows that the legal regime for international responsibility for activities in outer space remains applicable and relevant, and stands ready to serve as a legal framework for the years to come. Given the characteristic of international responsibility as enforcement mechanism under international (space) law, this finding is of considerable importance.

Läs mer om Scarlet O´Donnells avhandling  i Lunds universitets forskningsportal.

Alexander Hardenberger

Åberopsbörda i dispositiva tvistemål - En civilprocessuell studie i anslutning till 17 kap. 3 § andra meningen RB

Datum för disputationen: fredagen den 8 december 
Fakultetsopponent: Professor Magne Strandberg, Universitetet i Bergen   
Ämne: Processrätt

Abstract

The purpose of this dissertation is to describe and analyze the legal norms that regulate the burden of pleading material facts. In the dissertation the following research questions answered:
a) How have the legal norms that regulate the burden of pleading material facts arisen and developed?
b) What functions does norms that regulates the burden of pleading material facts have?
c) How the burden of pleading material facts allocated?

Regarding the first research question, the dissertation demonstrates that the burden of pleading material facts developed through an interaction between the legislature, legal scholarship, and the Swedish Supreme Court. Furthermore, the dissertation reveals that the allocation of the burden of pleading material facts was a central topic of discussion in the mid-20th century and that the discussion has since subsided. Finally, the dissertation highlights significant developments in Swedish civil procedure since the mid-20th century and points out that the changes have had a great impact on questions regarding the burden of pleading material facts.

The second research question is divided into several sub-questions. These include inquiries into what material facts are, how to carry out a pleading of a material fact, the various ways parties can object to each other´s pleadings, and the extent to which the parties´ pleadings (of material facts) affect the court´s examination of the dispute. Within each sub-question, the dissertation examines the functions of the norms that regulates the burden of pleading material facts. The thesis demonstrates how these norms have several functions such as (i) to  allocate the parties´respective competence to dispose over and delimit the subject matter of proceeding (ii) to establish a communication pattern between the parties and the court, (iii) to impose sanctions on a party that fails to adhere to the communication pattern, (iv) to assist the court in deciding disputes when there is an incomplete decision-making basis, and (v) to delimit the courts´s substantive examination of the dispute.

The third research question is divided into a general and specific part. Chapter 13 examines various explanatory model for the allocation of the burden of pleading material facts.  The chapter reveals that the Swedish supreme court has not fully adopted any of the examined models. However, the chapter provides an inventory of various argument that can be considered when determining the allocation of the burden of pleading material facts. An important conclusion is that the ideals of a fast and cos-effective civil procedure emphasize the need tor simple an predictable guidelines for allocating the burden of pleading material facts. Such guidelines are also crucial from a rule of law perspective.

The enhance predictability in issues concerning the allocation of the burden of pleading material facts, part IV of the dissertation investigates type-specific guidelines. The analysis is based on approximately 150 cases from the Swedish Supreme court, int which the court expresses its position on the allocation of the burden of pleading material facts.

Läs mer om Alexander Hardenbergers avhandling  i Lunds universitets forskningsportal.

Alezini Loxa

Sustainability and EU Migration Law: What Place for Migrants' Rights

Datum för disputationen: torsdagen den 5 oktober                                                                        Fakultetsopponent: Professor Niamh Nic Shuibhne, Edinburgh Law School                              Ämne: EU-rätt

Abstract

Sustainable migration is the new objective of EU migration law, a term whose meaning and legal implications are unclear. Through a critical historical study of different areas of EU migration law, the dissertation explores whether and how the past can guide the way for a contemporary understanding of sustainable migration. Specifically, the project looks into the historical development of EU migration law from the Treaty of Paris to this day with a focus on free movement of workers, Accession Treaties, Association Agreements and the regulation of migration from third countries. By investigating how the economic and social pillars of sustainability, as historically conveyed in the EU primary law objectives of economic growth and social progress, shaped the rights of migrants, the project identifies the limitations that lie behind the novel objective of sustainable migration. The analysis demonstrates that the balancing of economic and social considerations, currently reflected in the concept of sustainability, has shaped EU migration law as a legal system with very specific characteristics. These are the attribution of rights to migrants due to their contribution to growth, the limitation of their rights due to perceived risks to growth , an emphasis on work-related rights as a means to social progress without a broader conception of the human being behind the economic actor, and the incorporation of clauses to guarantee that there is always a safety valve to stop migration in case of threats to the economy. These characteristics reveal inherent limitations in the way migrants’ rights are construed at EU level, and these in turn frame the limitations of an EU sustainable migration. Comparing the characteristics that flow from the history of EU migration law with the current formation of the EU legal system under the Lisbon Treaty, the project also examines whether and how such limitations could be overcome. The suggestions made on the matter cannot do away with the structural limitations that characterize the EU legal order and, relatedly, EU migration law. Rather, taking a pragmatic approach, the dissertation suggests that sustainable migration is not far from the legal framework currently in place for EU migrants. Pursuing sustainable migration in the Area of Freedom, Security and Justice would mean reproducing the structures of economic exclusion that exist in free movement while attributing effective mobility rights to third-country nationals and extending their social rights. Conceptualizing EU sustainable migration in this way would not put an end to the exclusion of vulnerable migrants, which is after all attributed to the inherent limitations of a legal order structured around the objectives of growth and progress. It would, however, offer more extensive protection to third-country nationals who contribute equally to the EU project of growth, thereby guaranteeing more socially sustainable societies.

Läs mer om Alezini Loxas avhandling i universitetets forskningsportal.

Soo Hyun Lee

Right to Regulate for Sustainable Development in International Investment Law
The Challenge of Incomplete Assessments, Promise of Sustainable Investment, and Need for Reserved Optimism

Datum för disputation: fredagen den 4 april
Fakultetsopponent: docent Caroline Henckels, Monash University
Ämne: folkrätt

Abstract

Within international investment law scholarship, increased attention has been devoted to the capacity of international investment law, which includes investment treaty arbitration, to facilitate sustainable development. Scholars increasingly agree that issues of sustainable development permeate throughout the international investment law system and thus cannot be viewed as beyond its scope and jurisdiction. From that juncture, however, there is a wide divergence of opinions concerning the impacts of the investment law regime on sustainable development.

Current investment treaty practice, for instance, has been flagged as limiting the promotion of sustainable investment, with the Global South shouldering a greater burden with the shifting dynamics of global economic integration. Meanwhile, others believe that sustainable development and international investment law do not share a necessarily “inimical” relationship, instead pointing to possibilities of a “closer nexus” that can guide the future practice of international investment law. In this manner, the scholarship can be split into two prevailing views: (1) there remain opportunities to reform international investment law through embracing sustainability and inclusivity (the evolutionary view) and (2) international investment law is inherently an impediment to sustainable development needs (the revolutionary view).

This dissertation rallies to the evolutionary approach by positing that by complementing the existing system of international investment law with the interdisciplinarity that constitutes sustainable development and then imbuing this nexus into the heart of that system, then international investment law can embody a powerful role in advancing sustainable development. To do this, the dissertation begins by identifying a dimension in the intersection between international investment law and sustainable development where enhanced interdisciplinarity can have an empowering effect. Namely, this dimension is a type of safeguard that host states can appeal to either when negotiating the provisions of an international investment agreement or during an investment treaty arbitration called reserving the right to regulate in the public interest, specifically when involving matters of sustainable development. One of the primary shortcomings obstructing a harmonious interplay between international investment law and sustainable development from this particular dimension, however, is that there lacks a means to test whether a public policy measure taken by the host state or an investment by the foreign investor contributes to sustainable development.

Läs om Soo Hyun Lees avhandling i universitetets forskningsportal.

Lisa Kerker

Anhörigmigranters rättsliga skydd i tid och rum - En studie av skydd från våld i förhållande till vistelser

Datum för disputation: fredagen den 17 mars
Fakultetsopponent: professor Anna Lundberg, Lunds universitet
Ämne: offentlig rätt

Abstract

This doctoral dissertation in public law maps and analyses protection from domestic violence for family migrants in relation to family migrants' right of stay in Sweden from 2000-2022.

The thesis covers legal protection from domestic violence in three cases: a denied right of stay before immigration takes place if it can be assumed that the person applying for a residence permit based on family ties will be subjected to domestic violence should a residence permit be granted; a right of stay in case of a relationship ending due to subjection to domestic violence and the residence permit is at risk of being withdrawn whereupon expulsion can follow; and as a right of stay through a prolonged residence permit in case of a relationship ending because the family migrant has been subjected to domestic violence. It analyses how, and to what extent, legal protection from domestic violence against family migrants is created and developed. This is related to the right of stay for family migrants in intimate relationships in Swedish migration law. The thesis pays particular attention to how the content of 'violence' in the legal protection affects its extent, and how time affects prerequisites for a person to take advantage of the protection. It shows the extent of the protection offered in the three cases, highlights gaps in the protection as a whole, and sheds light on how the Swedish state's interest in protecting persons from domestic violence meets and comes into conflict with the state's interest in controlling immigration, as these two interests are expressed in family migration law.

Läs mer om Lisa Kerkers avhandling i universitetets forskningsportal.