Spanish Abstract: el contrato inteligente (smart contract) es una tecnología que permite la ejecución automatizada de un comando que sigue la lógica “si X entonces Y”, ante la verificación de una condición preestablecida. En combinación con la tecnología blockchain el contrato inteligente adquiere las características de descentralización, inalterabilidad y, sobre todo, de irreversibilidad. En este escrito se analiza el impacto del contrato inteligente en el derecho contractual, a partir de la distinción fundamental entre contrato inteligente y ‘contrato legal inteligente’. A partir de esa distinción se revisan algunas cuestiones que plantea esa tecnología al confrontarla con ciertos aspectos del contrato: su formación, su ejecución, su interpretación y la protección contractual del consumidor. El análisis lleva a concluir que el contrato inteligente, cuando cumple una función dentro de un contrato en sentido jurídico, no puede escapar a la influencia de los principios y reglas del derecho contractual. English Abstract: Smart contracts are a technology which enables the automated execution of a “if this-then that” function, upon the meeting of a predetermined condition. Combined with blockchain technology, Smart contracts become descentralized, tamper-proof and above all irreversible. This paper focuses on how Smart contracts impact on Contract law. On the basis of the distinction between Smart contract and ‘Smart legal contract’, I examine some issues arising from the interacción of Smart contract technology with some aspects of contract’s life cycle: formation, performance, interpretation, and contractual consumer protection. The outcome of the análisis Will show that Smart contracts, whenever they are imbedded in the context of a contract in a legal sense, cannot avoid the principles and rules of Contract law.
El presente trabajo ofrece soluciones a los problemas juridicos que plantean los smart contracts, por tratarse de clausulas contractuales autoimplementadas en un codigo informatico que autoejecuta su contenido. Estos versan sobre su discutida naturaleza juridica, la adhesion del consumidor 2.0 mediante Blockchain, su personalizacion con Ethereum, los errores de programacion y la responsabilidad civil, la proteccion y encriptacion de datos de caracter personal, y la formacion y ejecucion del contrato. Las dificultades que plantean los smart contracts requieren de una regulacion europea, inspirada en las legislaciones existentes en algunos territorios de los Estados Unidos y Francia, asi como en los estudios formulados en el ambito de UNIDROIT y la CNUDMI.
The article investigates some of the most relevant legal issues that emerge in connection with blockchain technology and smart contracts by addressing them from a public policy perspective.In particular, it focuses on some under-investigated problems connected to some possible legal hurdles to their widespread adoption in the legal practice of business at the national and international levels.The legal analysis of blockchain and smart contracts is then employed to explore the more general question of how much the law needs to change in order to accommodate new technologies, or how much it is instead preferable to believe that the existing law is already capable of accommodating innovation, however radical it may be.* Assistant Professor of Comparative Public Law, University of Turin.I would like to express my debt to the participants at the conference on Blockchain e diritto
One of the major current topics and one of the major innovations in the contract law, as well as in insurance law is the invention of the smart contracts. The author is basing her research on use of smart contract in insurance law and what are the main legal issues arising from the use of smart contract. In her paper, the author points out that the implementation of the smart contract in insurance law will greatly affect all participants in insurance contract and a significant step forward in improving the level of protection of insurance users (consumers), although it takes time and readiness of European and domestic legislators to create a special regulatory framework so that smart contract can reach its potential.
Vladimir P. Kamyshansky, Garmshev, M. A., Anna S. Shekhovtsova, Екатерина Анатольевна Новикова · 5 authors
The authors examined the concept and signs of a smart contract through a comparative legal analysis of the legislation of Russia, Belarus, the EU and the USA. The key characteristics of a smart contract as a contract, its types, ways of development and improvement are highlighted and substantiated, the examples of smart contracts from the practice of these countries are given, problematic aspects of legal regulation in this sphere are identified
This essay examines whether smart contract innovation is capable of displacing the orthodox adherence to traditional contracts. This examination is underpinned by an analysis of the legality of smart contracts, through which it is exemplified that smart contracts ought to be considered legally binding instruments. The essay proceeds to explore the superiority of smart contracting on a technical and theoretical basis. The advantages generated through smart contract automaticity and enforceability present a concrete basis for undermining reliance on traditional contracts. Blockchain Technology also enhances the benefits of smart contracts by acting as a smart contract enabler through guaranteed performance and enforceability. Nevertheless, such novel technologies inevitably suffer from several shortcomings. This essay considers examples which illustrate the inflexibility of smart contracting. Apart from being susceptible to hacking and code exploitation, smart contracting is unable to deal with ambiguities and potential modifications. Overall, this suggests that the advantages of smart contract practice are currently confined to some specified limited scenarios. Smart contracts perform a different function to traditional contracting by merely guaranteeing technical enforceability as opposed to legal enforceability. This essay thus concludes that, for the time being, it is best to regard smart contracting as a supplement to traditional contracts rather than an outright displacement.
Ethereum is a decentralized blockchain technology equipped with so-called Smart Contracts. A contract is a program whose code is public, which can be triggered by any user, and whose actual execution is performed by miners participating in Ethereum. Miners execute the contract on the Ethereum Virtual Machine (EVM) and apply its effect by adding new blocks to the blockchain. A contract that takes too much time to be processed by the miners of the network may result into delays or a denial of service in the Ethereum system. To prevent this scenario, termination of Ethereum's Smart Contracts is ensured using a gas mechanism. Roughly, the EVM consumes gas to process each instruction of a contract and the gas provided to run a contract is limited. This technique could make termination of contracts easy to prove but the way the official definition of the EVM specifies gas usage makes the proof of this property non-trivial. EVM implementations and formal analysis techniques of EVM's Smart Contracts use termination of contracts as an assumption, so having a formal proof of termination of contracts is crucial. This paper presents a mechanized, formal, and general proof of termination of Smart Contracts based on a measure of EVM call stacks.
The main quality of a smart contract relies on the automation of contractual relationships, as the performance is triggered by an algorithm in turn triggered by the fulfilment of certain events. Most of the benefits arising from smart contracts are based on the ‘self-executing’ and ‘self-enforcing’ character, which represent a source of innovation for general contract law. Smart contracts use blockchain to ensure the transparency of the contractual relationship and to create trust in the capacity to execute the contract, which depends on the technology used. The aim of the present essay is to investigate whether and how blockchain technology platforms and smart contracts could be considered a modern form of private authority, which at least partially escapes the application of mandatory rules and traditional enforcement mechanisms. In particular, the authors will devote attention to innovative self-help mechanisms and dispute resolution systems, which can be depicted as ‘alternative’ insofar as they present themselves as independent from courts and other national state authorities.
This Essay explores the barriers to deploying smart contracts in the consumer finance space: the humans themselves, existing consumer protection laws, and the other businesses which have financial contracts with consumers but that cannot deploy smart contracts. These three barriers render perfectly automated enforcement all but impossible. Nevertheless, there may be room for modifiable smart contracts in the consumer finance space – although these contracts may be only marginally more efficient than traditional contracts.
Статья посвящена исследованию места и особенностей такого нового института в договорном праве России, как смарт-контракт.Исследован зарубежный опыт по этой тематике
China’s contract law is examined to determine if there are legal ambiguities with regard to formation, performance, and modification of smart contracts and the problems relating to the enforcement, remedies, and dispute resolution. It is important to Chinese law not to act prematurely to change existing legal frameworks in response to a still evolving technology (blockchain-based smart contracts). On the other hand, the regulatory framework for platform operators needs be adjusted carefully to incentivize them to diligently check and verify the information of vendors who conduct business on the platform.
The technology that makes smart contracts possible was developed with a view to enabling transactions to be made end-to-end without the intervention of third parties, intermediaries, adjudicators or courts. In this sense, it achieves in principle complete freedom of interaction. Whether this is the same thing as freedom of contract, however, remains to be seen. It is not yet clear, for example, which smart contracts will be legally enforceable, either because the parties do not want them to be, and/or because the courts do not recognise them as being so. What seems inevitable at this stage in the development of smart contract technology is that conventional contract law in its current form is unlikely to be the most effective way of adjudicating smart contract disputes. One reason for this is that securing performance will be far less of a problem under smart contracts than it is in relation to conventional contracts: the automated nature of the former means that actions are far more likely to be executed than those promised in the traditional way, albeit that their results might not accord with the parties’ expectations. Any issues are therefore far more likely to arise (or at least to be brought to a court’s attention) after a transaction has occurred. Automated execution means that parties are free to determine the contents of their agreements, and that machines will abide by those agreed instructions. The way in which smart contracts operate, therefore, means that any adjudication of them is likely to need to emphasise restorative rather than enforcement remedies. The extent to which the law chooses to do this will effectively determine how free smart technology users are to make legally recognised contracts.
Cryptocurrencies have been around since 2009 when the programmer Satoshi Nakamoto launched the technology behind Bitcoin. There are now several different cryptocurrencies and they are likely to be ...
Os smarts contracts são, em termos bastante gerais, protocolos informáticos que permitem que um dispositivo execute as prestações de um contrato de forma autônoma, logo, sem a necessidade de intervenção humana. A substituição da ação humana por um processo – conjunto de protocolos – que viabiliza (a) a automação de operações, (b) a materialização automática das prestações nas transações e (c) a utilização de outras tecnologias, as quais permitem a verificação do clausulado e da identidade dos sujeitos vinculados à transação resulta em elevada economia de custos. Ademais, as expectativas das partes para a satisfação de seus interesses negociais, tal como estabelecido no contrato, acabam sendo amplamente protegidas. Rapidez, previsibilidade e automação permeiam o exercício da autonomia privada, facilitando a efetiva autotutela. Não obstante os evidentes benefícios, tal figura apresenta limitações e desvantagens, trazendo consigo possíveis problemas. Este trabalho explora brevemente o fenômeno dos smart contracts, reflete sobre seu ecossistema particular e, a seguir, aborda importantes questões jurídicas que acompanham os smart contracts.
Among substantial advancements challenging contemporary contract law special attention is given to autonomous, cryptographic solutions based on decentralised infrastructure provided by blockchain technology, intended to execute transactions automatically, designated as smart contracts. The need for comprehensive research on legal implications of practical implementation of this technological innovation is triggered particularly by the prognostications declaring it a valid alternative to hitherto contract law framework that is expected to be ultimately replaced by algorithmic mechanisms underpinning smart contracts.A relevant assessment of the impact smart contracts are presumed to have on the contract law domain requires a thorough analysis of their juridical status. The specificity of the category of smart contracts raises doubts whether they comply with the definition criteria inherent to contract law terminology. Additionally, it is of material importance to determine the function smart contracts can perform in the sphere of contractual practice and to confront it with the role and axiology of contract law.The article aims at analysing the peculiarities of smart contracts from the perspective of the Polish private law system with account being also taken of current development tendencies concerning the concept of contract.
Technology development is one of the tools for developing e-commerce. In recent years, the emergence of public Ledgers such as the Blockchain and the invention of digital cryptocurrencies have created a new type of electronic contract called smart contracts. Smart contracts are contracts under the supervision of artificial intelligence in the context of the Blockchain, and the contractor replaces them with smart properties or digital cryptocurrencies. Intention is one of the pillars of the formation of any contract in legal systems. These contracts must be able to identify the element of intent in order to be considered valid in any legal system. Acquiring the intent of the parties in smart contracts through the licensing mechanisms for the use of digital signatures, the mechanisms for assigning permissions to use virtual currencies, the mechanisms for accessing information systems, and in contracts that are represented by artificial intelligence, the conclusion of a transaction by The representative represents the intention of the attorney to grant the lawyer to the client.
The central institute of private international law — conflict of law — in the modern globalization and information context is evolving, which is largely due to the paradigm shifts in law, laid down and developed based on international commercial arbitration. The widely interpreted concept of «rules of law» actualizes a completely new view of conflicting arrays of rules: the law of the state and the system of non-state regulators. The medieval lex mercatoria, revived in the XX century, is modernized by cyberspace, acquires a new sound in the form of e-merchant or lex informatica, especially in the context of the parallel development of smart contracts and new decentralized forms of dispute resolution, one of which is blockchain arbitration. In particular, the issues of conflict of law, traditional for cross-border transactions, arise in relation to smart contracts, which, using blockchain technology, are inherently linked to several jurisdictions. It is important to reflect on the questions of applicability of traditional conflict-of-laws bindings to the regulation of relevant relations, including through forecasting the practice of choosing the law of a state, the substantive rules of which are adapted to the use of new technologies, or recourse to the rules of non-state regulation.
Todo instituto juridico e influenciado pelo contexto socioeconomico no qual se insere ao longo da Historia, e o contrato nao e excecao. Ele sofre as adaptacoes necessarias para melhor corresponder as demandas dessa atividade humana. Assim e que a forma, as regras e o conteudo dos contratos variam de acordo com a epoca e o meio social nos quais sao produzidos. Portanto, e tarefa do Direito dos Contratos se adaptar e reformular consoante as necessidades e expectativas da sociedade em cada epoca, em especial no tocante ao comercio, que hoje experimenta os impactos das grandes transformacoes causadas contribuicao da tecnologia ao comercio internacional. Nesse contexto, surgem os smart contracts internacionais, contratos internacionais autoexecutaveis baseados em tecnologia nao-criptografavel, que permite o gerenciamento da performance contratual das partes e a execucao automatica do contrato. O presente trabalho visa a analisar tal instrumento enquanto alternativa tecnologica viavel a fornecer maior eficacia, rapidez e seguranca ao comercio internacional.
This article aims to summarize the present situation with regards to the use of cryptocurrency as collateral in secured transactions in the United States, Canada, the United Kingdom and France, and offer solutions to issues related to the use of cryptocurrency for this purpose. These proposed solutions are arranged as a framework that could be enacted in Canada, and elsewhere. The article first reviews the concept of a cryptocurrency, with special emphasis on bitcoin, and the concept of secured lending. Then, it discusses the categorization of bitcoin in the United States, Canada (with Ontario and Quebec as examples), United Kingdom and France. At this time, only the United States and Ontario have doctrinal and regulatory guidance when using cryptocurrency specifically for secured lending. Finally, this article proposes a legislative framework to take security interests in cryptocurrency in Canada, including drafts of specific statutory amendments for both Ontario and Quebec legislation. The article concludes by noting how this framework can be replicated elsewhere, notably in the United States, the United Kingdom and France.
Smart contracts built in the blockchain are quietly revolutionizing traditional transactions despite their questionable status under current law. At the same time, disputes regarding smart contracts are inevitable, and par-ties will need means for dealing with smart contract issues. This Article tackles this challenge, and proposes that parties turn to online dispute resolution (“ODR”) to efficiently and fairly resolve smart contract disputes. Furthermore, the Article acknowledges the benefits and challenges of current blockchain ODR start-ups, and proposes specific ideas for how designers could address those challenges and incorporate ODR to provide just resolutions that will not stymie efficiencies of smart contracts. Nonetheless, the Article also raises pivotal cautions and questions for ensuring the fairness and transparency of these solutions over the longer term.