Finland chapter for the European Arbitration Review 2019

The European Arbitration Review 2019 published by the Global Arbitration Review

Posted on

27 Nov

2018

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Dittmar & Indrenius > Insight > Finland chapter for the European Arbitration Review 2019

The European Arbitration Review 2019, published by the Global Arbitration Review, provides an unparalleled annual update on key developments in the region. Read our Finland overview.

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Si vis pacem, para bellum – If you want peace, prepare for war
30 Nov 2018 Some of us argue for a living. Every day we are witnessing conflicts arising in commercial contractual relationships and cooperation projects. We can see how vast amounts of companies' resources are taken up each day by commercial disputes. Commercial disputes take the focus away from productive business operations, take up enormous amounts of time and impose a financially burden on the organisation. In addition, disputes are often embodied in a certain person or persons within the organization and, thus, create excessive stress for those involved and may even leave a permanent mark in the lives of those caught up in them. "Lack of empathy on the negotiating table considerably increases the likelihood of a dispute" Conflicts often arise from agreements that are ambiguous or otherwise open to various interpretations. Sometimes, distrust between the parties has already taken root during the contractual negotiations. Lack of empathy on the negotiating table considerably increases the likelihood of a dispute. Palpable promotion of one’s own interests without any regard to the needs of the other party fosters distrust between the parties. Lack of trust typically stems from a fear of being mistreated. If the parties had concentrated on building trust during the negotiations, instead of conducting themselves in a manner that destroys trust, the parties would also be likely to embark on constructive discussions in the event of a subsequent dispute over an interpretation of a contractual clause, for instance, as opposed to automatically jumping to the conclusion that they are being wronged by the other party. The parties should invest in the prevention of disputes already in the drafting stages of the agreement. In order to prevent disputes, we must first understand how they usually arise. In circumstances, where despite all the preemptive measures taken, disputes have nevertheless arisen, they must be professionally managed from the beginning. This subsequently maximises the chances of success in the potential proceedings. Gentlemen’s agreements are the worst. After all, they require the presence of at least two gentlemen. Otherwise, a gentlemen’s agreement is simply an arrangement between two people, neither of whom is a gentleman and both of whom expect the other to comply with the agreement while they personally have no intention of doing so. Using legal proceedings as means of revenge is the lowest of the low. Despite the fact that the party is well aware of how much time and resources a litigation or arbitration will take away from the productive business operations of both parties, how much stress and how many sleepless nights it causes, how it destroys relationships, traumatises families and causes not only great expenses but considerable economic losses, nothing can sway them from seeking their vengeance. In these situations, I always like to remind people of the old Chinese saying: “Before you embark on a journey of revenge, dig two graves.” Dispute Academy The Dispute Academy is a course tailored for companies with the central goal of preventing disputes and successfully managing conflicts. The course is designed for an organisation’s employees who are authorised to undertake commitments on behalf of the company. For more information, please contact Jussi Lehtinen, Head of Dispute Powerhouse.  
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Success Through Data Management
23 Nov 2018 An insightful and tasty luncheon at the atmospheric Garden by Olo, engaging discussions and a key note speech by Reijo Aarnio, the Finnish Data Protection Ombudsman. We at D&I had the pleasure of hosting an event on data asset management and the upcoming changes to Finnish data protection laws. These are the key takeaways for general counsels from the event. Harmonisation, Harmonisation and Harmonisation According to Mr Aarnio, harmonisation is essential in monitoring compliance with the GDPR. Mr Aarnio pointed out that the Finnish Data Protection Ombudsman does not have the power to provide interpretations of the GDPR. Instead, the power to ensure the consistent application of the GDPR is vested only in the European Data Protection Board ("EDPB"). Thus, the Ombudsman must rely greatly on the EDPB's opinions. This setting is not optimal in light of business development as business decisions must often be made well before any interpretations are issued by the EDPB. The fact that the Data Protection Ombudsman does not provide relevant guidance at this stage weighs heavily on the controllers' shoulders. Due to the resulting uncertainty, it is of great importance to ensure that all controller decisions are well founded and diligently documented in accordance with the accountability principle. Despite its incapability to provide independent interpretations of the GDPR, as the Finnish supervisory authority, the Data Protection Ombudsman has, however, the power and obligation to monitor and enforce the application of the GDPR in Finland, as well as to promote the awareness of controllers and processors of their obligations under the GDPR. To this end, Mr Aarnio greatly urged Finnish companies to an open dialogue with the Data Protection Ombudsman. Prevent Data Protection Disputes As has been widely discussed during the past few years, under the GDPR, sanctions can be high – up to 4 percent of a company's global annual revenue. However, fines are not the only punitive measure in the toolbox of the Data Protection Ombudsman. In addition, the Ombudsman has, inter alia, the power to impose temporary or definitive restrictions on controllers' businesses, including bans on processing data. As Mr Aarnio pointed out, such a ban could in many occasions be more significant than any administrative sanction. By way of example, if such a ban were to interrupt a controller's business entirely, already a three week ban would be likely to cause higher losses than the 4 percent maximum of an administrational fine. In any event, prevention of disputes is the key. The most successful resolution of a dispute is preventing it from ever happening. Our Partner and Head of Dispute Powerhouse Jussi Lehtinen pointed out that in order to avoid proceedings by the data protection authority it is not enough to merely ensure that a company's data assets are processed adequately. The company must also appear trustworthy to the outside observer. Harness Your Data Assets Correctly Data is often regarded as the new oil – an asset that can fuel businesses in multiple ways. Although we at D&I definitely see the value of data, we would rather compare it to the wind. Like the wind, data is a renewable source which needs to be correctly harnessed in order for it to create value. In practice, data is valuable only if two key criteria are met: when it can be used for the right purpose, and processed by the right company. That is why identifying processing purposes and systematically allocating data controllership is so important, as Iiris Kivikari, Senior Associate in our Data Protection, Marketing & Consumers team pointed out. Lawyers have a great responsibility in ensuring that data is available to the businesses that need it the most. What to Focus On So, what should a general counsel pay attention to based on the six month old GDPR? As Jukka Lång, our partner and head of our Innovation Powerhouse, noted, now is the time to shift the focus from GDPR compliance work to planning the full use of data assets. To do so, it is especially important to ensure that a data protection perspective is built into the business. Further, internal reporting must be planned and executed thoroughly to ensure that data protection matters are duly escalated to the management level able to take a stand on them. This includes, among others, the capability to respond to data breaches in a timely manner and implementing efficient annual reporting procedures. Last, but definitely not least, the structuring of data assets should be planned in a way that promotes innovation and efficient business. By doing so companies are able to maximize their valuations and enable the efficient use of data assets throughout their organisation.

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