College of Business and Law - Doctoral Theses

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Private enforcement of European Union Law in the Irish Superior Courts
(University College Cork, 2024) O'Reilly, Seán; Ryall, Aine
The Court of Justice of the European Union has spoken in strong terms of the importance of effective judicial protection of EU law rights as a core element of an EU legal order founded on the rule of law. To complement the public enforcement system set down in the Treaties, the Court of Justice developed doctrines of direct effect, consistent interpretation and State liability in which breaches of EU law became actionable before the national courts of the Member States. This is referred to as the “private enforcement” of EU law. However, in order to make its vision of the EU legal order a reality, the Court of Justice relies on the willingness of national courts to share and invest in that vision. This thesis explores the development of the case law of the Irish Superior Courts concerning each of the doctrines of private enforcement. The thesis begins with an examination of the direct effect jurisprudence. The elements of this examination are: (i) the evolution of Irish jurisprudence concerning so-called “exclusionary direct effect”; (ii) the approach of the Irish Superior Courts to the prohibition against the horizontal direct effect of directives, including Irish jurisprudence on the concept of an “emanation of the State” and the jurisdiction of bodies other than courts to disapply Irish law which is incompatible with directly effective EU law; and (iii) the relationship between direct effect and the other doctrines of private enforcement. The thesis goes on to examine the consistent interpretation jurisprudence. This examination has a particular focus on the limits of the doctrine of consistent interpretation. First, the jurisprudence in which the Irish courts have explored the interaction between fundamental rights and the duty of consistent interpretation is considered. Second, the Irish jurisprudence on the contra legem limitation to the doctrine is examined. The established Irish law canons of construction have played an important role in framing the Irish courts’ approach to that limitation. Third, the extent to which the doctrine of consistent interpretation has caused the Irish courts to recognise new rules of statutory interpretation is explored. The thesis goes on to examine the State liability jurisprudence. This examination is comprised of two elements. First, I explore Irish jurisprudence on each of the three criteria for State liability, namely: (1) conferral of rights; (2) a “sufficiently serious” breach of EU law; and (3) proof of a causal link. Second, the place of State liability within the Irish tort law system is explored. This analysis considers the Irish courts’ preference for treating State liability as an entirely distinct cause of action choice over fitting it within an existing domestic tort. The thesis then concludes by setting out a number of overarching insights into the enforcement of EU law before the Irish courts. First, in instances where the Irish courts’ approach to a particular aspect of a doctrine of private enforcement has evolved over time, it has been towards greater integration of EU law. Second, while the Irish courts have, generally speaking, embraced the doctrines of private enforcement faithfully, there is evidence that in difficult cases, where the interaction between the doctrines of private enforcement and established principles of Irish law is uncertain, the Irish courts seek to insulate those established principles from the potentially transformative effect which the doctrines of private enforcement may have upon them. Third, the Irish courts’ approach in relation to certain elements of the doctrines of private enforcement has been inconsistent. The ultimate conclusion drawn from the analysis presented in this thesis is a confirmation that the complex process of the integration of EU law into Member State legal systems is not characterised in practice by the blind obedience of the national courts.
A qualitative exploration of the development of psychological capital in the family business
(University College Cork, 2024) Duggan, Catherine; Murphy, Linda; O'Brien, Elaine; Irish Research Council
The long-term sustainability of the family business is crucial to the global economy due to its economic and social impact. Characterised by unique resources such as familial ties and shared values, family businesses integrate family and business systems, creating a cohesive yet diverse workforce with differing expectations, goals and perspectives. Psychological Capital is a positive psychological developmental state comprising hope, efficacy, resilience, and optimism. Strategically developing psychological capital (hereafter PsyCap) in family business employees can enhance innovation, adaptability, and problem-solving capabilities. This approach fosters a competitive advantage for the family business through positive behaviours and attitudes. This thesis empirically explores the development of PsyCap in the previously unexplored, family business context. Extant research on PsyCap development focuses on PsyCap development through formal training interventions, particularly in non-family business contexts. This approach, however, does not provide an understanding of the idiosyncratic developmental mechanisms of its four key components: hope, efficacy, resilience, and optimism. This study examines PsyCap at the four-factor level, exploring its dimensions to uncover the empirical mechanisms shaping PsyCap development in the family business. This research extends existing PsyCap theory by demonstrating that PyCap is shaped by unique governance structures, leadership dynamics, and cultural influences inherent in family businesses. This perspective challenges the dominant view that PsyCap primarily develops through structured interventions, highlighting the significance of embedded, relational, and experiential mechanisms. This study also reveals that PsyCap development is contextually situated and shaped over time. Consequently, this research enhances the contextual understanding of PsyCap development and extends its theoretical relevance into the family business context. While research on PsyCap in family businesses has predominantly concentrated on organisational outcomes, understanding the mechanisms underlying PsyCap development in this context remains largely unexplored and lacks empirical investigation. Extant PsyCap knowledge may not apply to family businesses due to their unique dynamics, long-term perspective, emotional investment, intergenerational challenges, and typically less formalised governance structures. Specifically, this thesis seeks to understand if and how PsyCap develops differently in family and non-family employees. Without a clear understanding of this process, family businesses may overlook the unique dynamics that influence PsyCap development, potentially leading to less effective human capital strategies. Through a qualitative multiple case study design, semi-structured interviews were used to gather data from fifty-four (54) family and non-family employees of nine third-generation and beyond Irish family businesses, exemplars of long-term survival. This exploratory perspective has not been considered in the broader PsyCap literature and has received little attention in the family business context. Exploring PsyCap development within family businesses through an interpretative lens contributes to the PsyCap and family business literatures by identifying context-specific factors and refining our understanding of PsyCap development. This thesis advances our understanding of PsyCap development in family businesses by evidencing the empirical mechanisms of PsyCap development through a comparative analysis of the differing mechanisms in family and non-family employees. Findings reveal that familial factors, such as family ties, affective involvement and informal governance mechanisms, influence PsyCap development in family employees. In contrast, findings also demonstrate that organisational factors, such as shared values, inclusive culture and recognition and rewards, influence the development of PsyCap in non-family employees. These novel insights and theoretical interpretations contribute to the family business and PsyCap literature by focusing on the mechanisms of PsyCap development in family businesses. On a practical level, these insights are essential for tailoring strategies to meet the distinct requirements of family and non-family employees, providing a strategic advantage for family businesses. Keywords: psychological capital, family business, mechanisms, four-factor analysis
Navigating geopolitics: the role of corporate political capabilities in Latin American investment decisions
(University College Cork, 2024) Tonn Goulart Moura, Stephanie; Lawton, Thomas; Tobin, Damian; H. J. Heinz Company
Although geopolitics have attracted significant interest from strategic management scholars, there is still limited understanding of how these power dynamics influence the investment decisions of multinational enterprises (MNEs). Due to the international scope of their strategies, MNEs must navigate a variety of political environments. However, the existing literature on strategic management often frames geopolitics as a factor contributing to a country’s risk profile and views it as an external source of uncertainty that MNEs manage through various strategies at the host country level. This thesis challenges this prevailing narrative in at least two main ways. First, I explore geopolitics as a complex construct that not only influences the risk profiles of host countries but also shapes the political affinity of MNE home and host countries. Shifts in these political relations can motivate MNEs to engage with governments and navigate the political landscape in various ways, sometimes mobilizing resources beyond the host country’s borders. Second, I frame MNEs as active participants in the geopolitical arena. While geopolitics sets the context and influences political affinity between home and host countries, MNEs do more than merely react to these geopolitically induced shifts. They actively engage with governments, leveraging their resources to shape the political landscape and negotiate their positions within it. Thus, I discuss the opportunities for MNEs to capitalize on their political capabilities within the geopolitical context, as well as scenarios where these capabilities may have their value moderated by the geopolitical context. This thesis unveils this theme, building upon three research papers. In the first paper, I conduct a systematic review of the literature on geopolitics, the relations between home and host countries, and the foreign direct investment (FDI) strategies of MNEs. This review informs the development of a theoretical framework that integrates firm-level variables and demonstrates how MNEs’ FDI decision-making is influenced by the geopolitical context shaping home and host countries’ international relations. In the following papers, I test this framework using data collected from the FDI of Latin American MNEs, spanning the period from 2003 to 2019. Conditional logit and logit regressions are used to analyze MNEs’ greenfield investment choices. I find that MNEs’ investment strategies are positively influenced by historical geopolitical context when colonial ties have fostered political closeness between their home and host countries. Conversely, when post-colonial trajectories have resulted in low levels of political affinity between countries, MNEs tend to rely on their political capabilities to make investments. Furthermore, I found that the host country’s participation in regional cooperation projects creates a present geopolitical context that positively impacts MNEs’ investment decisions and attracts FDI while also diminishing the relevance of both political affinity and MNEs’ political capabilities in these decisions. This thesis makes three key contributions to the literature. First, it provides a more nuanced understanding of the impact of geopolitics on international business, highlighting the importance of grasping the geopolitical context underlying bilateral relations between home and host countries and the related influence on MNE’s FDI decisions. Second, it contributes to the strategic management literature by emphasizing the role of political capabilities in different geopolitical settings, specifically detailing how MNEs leverage these capabilities to navigate shifting politics between home and host countries. Third, this study contributes to the strategic management literature by integrating political capabilities with real options theory to better understand how MNEs leverage strategic flexibility in their investment decisions, demonstrating how the geopolitical context can also limit the value of political capabilities in investment decisions.
A critical analysis of the intersection between copyright law and artificial intelligence
(University College Cork, 2024) Scannell, Barry; Whelan, Darius; University College Cork
This thesis examines the complex and evolving relationship between artificial intelligence (AI) and copyright law, focusing on two main aspects: AI's use of copyrighted works for training purposes (AI inputs) and AI's generation of new works that may be eligible for copyright protection (AI outputs). The central research question of this thesis is: To what extent do existing international, regional and national copyright approaches address the challenges posed by AI-generated works, and how should these frameworks evolve to ensure harmonisation, protect human creativity, and ensure an appropriate balance between protecting human creativity and fostering innovation? To answer this question, the thesis adopts a comparative approach, analysing legal frameworks and challenges in the European Union, the United States, and selected Asian jurisdictions. It highlights the fragmented international approaches to copyright and AI training processes (inputs) and advocates for a harmonised global framework. In addressing the complexities of authorship and ownership of AI-generated works (outputs), the thesis suggests that a possible solution may lie in the introduction of sui generis protections tailored to the unique challenges posed by AI. This thesis is structured around three main chapters, in addition to the introduction and conclusion. Chapter two addresses the question: Can copyright law keep up with AI training needs? It explores the phenomenon of text and data mining (TDM), a core technique through which AI systems learn from vast datasets, many of which contain copyrighted material. This chapter discusses the various intellectual property rights implicated by TDM, including the reproduction right, adaptation right, database right, and rights management information. It evaluates the adequacy of existing and proposed copyright exceptions and limitations for TDM across jurisdictions, analysing whether they balance the interests of creators with those of AI developers. This chapter also highlights the challenges posed by international disparities in TDM exceptions, underscoring the need for harmonised global approaches to AI training. The third chapter considers the questions: What do courts say about AI and copyright? and What are the emerging legal challenges in AI infringement disputes? It provides a critical analysis of judicial decisions relevant to the emerging trend of copyright infringement lawsuits involving AI. Given the United States' advanced stage in AI-related litigation, this chapter focuses on key cases such as Authors Guild v. Google and explores the role of fair use as a central defence for AI companies. European approaches to similar copyright issues are also examined, with a focus on infringement and the broader implications for copyright frameworks. This chapter reveals the growing importance of judicial reasoning in shaping how copyright law responds to AI technologies. Chapter three also examines the new wave of litigation brought against AI developers, exploring how key elements of such disputes such as memorisation, substantial similarity, and the use of copyrighted data are tested within current legal frameworks. This chapter evaluates how these disputes impact copyright law and identifies areas where legal clarity is needed to accommodate AI’s rapid development. Chapter four explores the question: Who owns AI-generated works under existing copyright law? It provides a detailed analysis of copyright protection for AI-generated works, beginning with an examination of the spectrum of AI assistance, from AI as a mere tool to its role as a potential author. This chapter reviews international and national legal approaches to authorship, originality, fixation, and ownership, focusing on jurisdictions such as the European Union and the United States. Particular attention is given to US case law, where AI authorship is being actively debated, and EU jurisprudence on originality, which offers insight into how the EU may approach these issues. By addressing the challenges of defining authorship for AI-generated works, this chapter contributes to the broader discourse on adapting copyright law to account for AI’s role in creative processes. The concluding chapter addresses two key questions: Should AI-generated works get new legal protections? and Is global harmonisation of copyright frameworks possible? It explores whether new forms of legal protection, such as sui generis rights, are needed to address the gaps in existing frameworks. The chapter also considers how such protections might be structured, including their scope, duration, and economic implications. Additionally, it evaluates the strengths and limitations of the EU AI Act in addressing copyright concerns and explores whether Ireland’s legislative approach could serve as a model for broader EU reforms. Finally, this chapter examines the major obstacles to achieving global harmonisation and argues that international collaboration is essential for fostering consistent and equitable standards for AI-generated works. The conclusion of this thesis argues that while existing international, regional and national copyright approaches provide a foundation, they are insufficient to address the complexities introduced by AI. Harmonised TDM regulations, the introduction of transparency and accountability mechanisms, and tailored sui generis protections are proposed as solutions to balance the needs of creators, developers, and the broader public interest. By advocating for a balanced and adaptive legal framework, this thesis provides a pathway for copyright law to evolve in step with the realities of the AI era, promoting innovation while safeguarding human creativity and the integrity of copyright systems worldwide.
Towards a normative theory of gambling self-exclusion agreements
(University College Cork, 2024) Long, Bernard; Donnelly, Mary; White, Fidelma
Gambling self-exclusion agreements enable a person to have themselves prevented from gambling for some future period. In light of evidence of their effectiveness in helping problem gamblers manage their addiction, these agreements enjoy growing popularity and several jurisdictions now oblige gambling operators to offer self-exclusion to their clientele. Despite this growing popularity, however, self-exclusion has yet to be subject to detailed theoretical investigation, an oversight which has left it bereft of a robust theoretical foundation and may have contributed to dissonance in its operation across jurisdictions. In this thesis, I seek to develop a normative theoretical framework for self-exclusion. As a precommitment device which is initiated by the problem gambler, it is instinctive to view it as primarily based in an exercise of the agent’s autonomy. Though this regard for autonomy is vital to self-exclusion’s value, however, I will argue that it only partially provides its theoretical justification. Rather, viewing self-exclusion through the lens of autonomy generates the self-exclusion problem, i.e. the existence of two conflicting preferences (to gamble and to be restrained from gambling). As this thesis will argue, however, an exclusively autonomy-based conception of self-exclusion cannot justify the precedence afforded to the preference for restraint, upon which self-exclusion’s operation necessarily relies. Rather, the self-exclusion problem can only be resolved in favour of the preference to be restrained from gambling based on a substantive, paternalistic norm. This revelation therefore casts self-exclusion as a device which is characterised by both paternalistic and autonomy-based features. From this finding, I develop a novel framework for conceptualising gambling self-exclusion agreements, namely that they are best conceived of as a form of opt-in paternalism. This innovative model renders self-exclusion’s seemingly conflicting theoretical commitments to autonomy and paternalism intelligible and provides normative guidance for its operation. Having developed and explicated the opt-in paternalism model, I apply it to areas of self-exclusion’s operation which are particularly dissonant across jurisdictions and demonstrate its value in resolving this dissonance and guiding self-exclusion policy according to a robust and comprehensive theoretical framework.

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