The topic of ‘trade and technology’ usually gives rise to discussions of the ways in which new technologies might be traded, and the limitation of current trade rules in adapting to rapidly changing innovations. In contrast, this chapter asks a fundamentally different question – what opportunities will technology present to change the modes and methods by which trade regulation is achieved? Specifically, the chapter considers how the World Trade Organization (WTO), or a future trade organisation, might itself take advantage of technology to restructure how it manages trade and fulfils its mandate. That mandate includes serving as a facilitator of trade agreements and market access negotiations, a forum for resolution of trade disputes, and a watchdog for national trade policies. It argues that technologies such as artificial intelligence, distributed ledger technologies, and the Internet of Things can be used in order to streamline and improve a range of WTO processes, particularly dispute settlement, negotiations, notifications, and monitoring.
The unique characteristics of sovereign debt finance provide fertile ground for opportunistic behavior and intractable disputes among states and their creditors. Lacking reliable contractual enforcement mechanisms and formal bankruptcy procedures, the sovereign debt restructuring process is hampered by fragmentation, costly standoffs, and unpredictable outcomes. The result is a non-system of ad hoc, decentralized negotiations and litigation that some fear is perpetually at risk of falling apart. To address these concerns, recent years have seen renewed efforts to fix sovereign debt through soft law, public-private collaboration, and informal governance mechanisms, which this Article collectively refers to as sovereign debt governance. This Article focuses on one of the most prominent proposed reforms in sovereign debt governance: the use of creditor committees to facilitate engagement between a sovereign debtor and its private external creditors. Notwithstanding the uniqueness of sovereign debt in international law and financial regulation, we explain how the debtor-creditor relationship reflects a fundamental governance challenge amidst individual distrust and collective disorder. This challenge suggests that the sovereign debt restructuring process can be improved by reforming the procedural rules and institutional frameworks that govern debtor-creditor engagement. To assess this proposition, we examine the use of creditor committees in the current era of sovereign debt, focusing on factors that influence the conduct of debtors and their creditors vis-a-vis each other. Drawing on our observations, we consider the potential value and limitations of creditor committees in the context of sovereign debt governance.
This chapter provides an in-depth engagement with the project of expressing legal propositions in machine-readable language. Smart Contracts use computer technology to automate the performance of aspects of commercial agreements. Yet how can there be confidence that the computer code is faithful to the intentions of the parties? To understand the depth and subtlety of this question requires an exploration of natural and computer languages, of the semantics of expressions in those languages, and of the gap that exists between the disciplines of law and computer science. It builds on the metaphor of a ‘contract stack’ with the idea of a ‘language stack’ and illustrates the various layers of language—both natural and formal—that might exist and interact in any instantiation of a ‘smart legal contract’. It also explains the importance of language design in the development of reliable smart contracts, including the use of domain specific languages and the design of controlled natural languages within the specific methodology of computable contracts. Reflecting the author’s original research in the area, this chapter examines ‘computable contracts’ in particular detail—a sub-type of ‘smart contracts’ in which the top two layers of the language stack (‘natural language’ and ‘specification language’) have been merged. As well as providing an in-depth overview of theory, this chapter provides an up-to-date survey of existing projects and reflections on directions for future research.
The International Swaps and Derivatives Association (ISDA) Master Agreement (MA) is the prevailing contract in the Over-the-Counter (OTC) derivatives market. Its efficacy derives from, inter alia, the network effect. As the OTC derivatives market expanded so did users of the MA. During and after the MA’s creation, the market underwent extensive deregulation and the standard-form agreement soon filled the lacuna left by retreating regulation. Its ubiquity in the market has created a level of trust and confidence, not only in the terms of the MA itself but between parties which may not have otherwise entered into a business relationship. With the impending introduction by ISDA of a smart contract version, this article investigates whether automation will harmonize or disrupt trust and confidence in the MA. ISDA, derivatives, standard-form, trust, confidence, smart legal contracts
Smart contracts promise to materialize a lifelong dream as they purport to be self-executing, cost-efficient, free of human error and other inefficiencies commonly attributed to traditional contracts. Nevertheless, the fact that smart contracts originate from and embody human interactions also makes them imperfect and prone to be affected by the shortcomings of the relationships that they regulate. This chapter explores some of the most important questions raised by the idea of smart contracts, including their contours and substance, whether they should be regarded as contracts or not, their relationship with the legal system (both domestic and international) and the comparison between smart contracts and traditional contracts. The rigidity, tamper-proof nature, self-sufficiency and completeness of smart contracts are generally viewed as important features, which make them particularly attractive for international commercial transactions where language, culture, different legal standards and other differences are usually the source of tension besides raising transaction costs. Smart legal contracts, however, are not a complete replacement either for traditional contracts, or for all human involvement in commerce.
No es extraño escuchar sobre la posibilidad de que los abogados, jueces y árbitros sean reemplazados por máquinas o robots en el futuro. No es extraño escuchar acerca de la tecnología blockchain y como esta se utiliza con más frecuencia en transacciones comerciales. Es innegable que la tecnología avanza a pasos desmedidos para revolucionar la práctica jurídica, dejando atrás la regulación y el ejercicio profesional “tradicional”. Sin embargo, en Ecuador, sentimos que esta realidad es ajena a nuestro entorno, quizá porque tenemos una industria con reducido desarrollo tecnológico, porque culturalmente nos cuesta salir de tradiciones y ritualismos –especialmente respecto a la administración de justicia– o quizá porque los abogados tenemos fama de ser adversos al cambio y huir de conceptos técnicos que van más allá del Derecho. Este artículo busca traer algunas de las discusiones que se encuentran en auge en el foro arbitral internacional sobre la interacción de la tecnología y el arbitraje y aterrizarlas a la realidad actual del Ecuador.
Most of the applications and uses of digital assets are improved and expanded with well-functioning and well-governed DAOs. The article evaluates the technical and internal governance solutions promulgated by DAO projects. Particular emphasis is placed on the duality of feedback effects between internal DAO governance and external DAO legal designs.
This article discusses current developments in East Asia to more effectively use mediation with international commercial arbitration, supported by the 2019 United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”) and the UNCITRAL Model Law on International Commercial Mediation (the “UNCITRAL Model Mediation Law”), and by online dispute resolution using innovative technology (including artificial intelligence, machine learning, the internet of things, blockchain, distributed ledger technology and smart contracts). It discusses the background to the changing approach including the increasing pressure for arbitration to become a mechanism of last resort in international dispute resolution prompted by policy makers’ and users’ demands for cheaper , quicker and culturally more international dispute resolution and the changing sources of international investment, developments in international relations including the Belt and Road Initiative announced by China, and the initiatives being undertaken by various investment and trade communities including APEC, particularly focusing on micro, small and medium sized enterprises (each a “MSME”). This article briefly refers to the current status of online dispute resolution utilizing innovative technology, and the legal opportunities and challenges posed by it. Finally, it briefly refers to some neuroscience research relevant to dispute resolution.
Abstract This article investigates the twofold impact that blockchain technologies and smart contracts have on dispute resolution. On the one hand, these technologies enable private parties to devise arbitral systems that are self-enforcing and, therefore, largely bypass the recognition and enforcement procedures through which State courts traditionally exert a certain control over arbitration. This phenomenon may in the future allow arbitration to become entirely self-sufficient, thus leading to the marginalization of State courts. On the other hand, however, such a marginalization has not taken place yet; to the contrary, the recent blockchain-related phenomenon of initial coin offerings has given rise to some prominent court cases. These cases raise particularly interesting jurisdictional questions, especially in light of the difficulty of reconciling the decentralized nature of the blockchain with the territorial approach whereby jurisdiction is typically allocated among national courts.
<table><tr>\n <td><p>China\n is incrementally developing a new, decentralized model of trade governance\n through a web of finance, trade, and investment initiatives involving\n memorandum of understanding, contracts, and trade and investment treaties,\n supported by an indigenous innovation policy that is transnational in its\n reach. In this way, China could create a vast, Sino-centric, legal order in\n which the Chinese state plays the nodal role. It is a hub and spokes model,\n with China at the hub. In this article, we first examine China’s export of an\n infrastructure-based development model, implemented through Chinese\n state-owned and private enterprise investments and commercial contracts (Part\n B), before turning to China’s development of a complementary web of free trade\n and investment agreements (Part C), and an indigenous innovation policy (Part\n D). The paper theorizes and empirically traces how these Chinese initiatives\n shape the evolving ecology of the transnational legal order for trade.<br></p></td></tr></table>
[excerpt] The concept of online dispute resolution (ODR) is not new. 1 But, with the advent of Web 3.0, the distributed web that facilitates pseudonymous and cross-border transactions via blockchain's distributed ledger technology, 2 the idea of, and pressing need for, appropriate dispute resolution models for blockchain-based disputes to support this novel system of distributed consensus and trust of which blockchain proponents boast, is a primary concern in rapid development. 3 The common goal of each project is to utilize smart contracts to facilitate "superior, quicker[,] and less expensive proceedings by eliminating so many of the tedious and protracted trappings of traditional arbitral proceedings, such as the sending and receiving of documents via courier.", Despite myriad approaches, all emerging blockchain-based dispute resolution services (BDR solutions) generally seek to bridge the divide between automated performance mechanisms, like smart contracts, and the human judgment traditionally required to settle legal disputes.5 How our existing legal frameworks must develop to ensure that smart contracts 6 facilitate, rather than frustrate, the parties' intent is a critically important question to ask as the blockchain stack's infrastructure and application layers are being built and, ultimately, scaled. Indeed, interest is high in the race to create alternative dispute resolution mechanisms to resolve disputes arising from blockchain-based commercial transactions that, due to the transnational, borderless, pseudonymous, and distributed nature of blockchain, clearly necessitate international solutions.7
The enforcement of outcomes in online dispute resolution (ODR) is a delicate problem. Since disputes arising out of e-commerce transactions are typically low in value, the traditional channels of coercive enforcement are often not a viable option. The article argues that the Bitcoin system can be used as a source of inspiration to devise new models of self-enforcement. The article describes the legal framework of ODR and argues that the goal of self-enforcement can be attained through the use of technology. It then describes the relevant features of the Bitcoin system, underlining its potential as a new forum for the expression of private autonomy. It then investigates the features of Bitcoin adjudication, before arguing that Bitcoin must be regarded as an original and self-contained system of dispute resolution, whose characteristics can be used to theorise new models of self-enforcement. Next, it compares four alternative models of self-enforcement, two of which take Bitcoin adjudication as an example. Finally, it puts forth recommendations for all actors involved in the implementation of self-enforcing ODR mechanisms and argues that different models should be left free to compete.
Independent regulatory bodies are important economic institutes, which take on a part of classical state affairs, which generally need particular, i.e. specialized knowledge, which does not exist in state management. European countries have different experiences when it comes to bearers of public authorization, representing intermediaries between the state on one hand, and companies and citizens on the other. In those countries with a traditionally big state apparatus, there are few agencies and vice versa, where there is a large portion of state affairs decentralized, small governments, supported by a modest central state apparatus are established. In the countries of Central and Eastern Europe, along with the process of transition, there occurred the process of "agencification". Serbia is maybe the worst example, with large coalition governments, which have established almost 200 different independent institutions. The causes of independent public body boom in Serbia are to be sought in a too liberal understanding of laws regulating this area, which has created the possibility of political feudalism. Also it has created an inappropriate autonomy of institutions (inappropriate for Serbian conditions, especially when it comes to finance), with a clear debalance of quality of employees in those bodies and the system of their compensation compared to contribution given by their work. Recent political changes, "new waves" of global economic crisis and large crisis of state financing are making boom problem solving quicker, and also are putting under control the behavior of bearers of public authorization in Serbia. However, it seems that this process still lacks good and impartial methodology and argumented atmosphere for making political decisions.
In its first decade, the International Competition Network has prospered, contributed to the development of widely accepted international policy norms, and come to exemplify the form of voluntary multinational collaboration that commentators have identified as a promising way to facilitate international ordering amid the global decentralization and diversification of economic regulations. This article takes stock of ICN’s achievements, considers why it has succeeded in many of its aims, and asks a number of questions regarding what comes next. It seeks to inform the ICN’s future by offering a way to think of its institutional characteristics to assess its relative advantages.The ICN’s paramount goal is to facilitate convergence - the broad acceptance of standards concerning the substantive doctrine and analytical methods of competition law, the procedures for applying substantive commands, and the methods for administering a competition agency - on superior approaches concerning the substance, procedure, and administration of competition law with the expectation that if competition systems around the world opt in to superior techniques, they will achieve greater progress toward dismantling competitive restraints. The article begins by examining the convergence methods, specifically the four elements of ICN’s convergence strategy. It then discusses the context of the ICN within the major international competition networks that have played important roles in the development of international competition policy standards - OECD, UNCTAD, and the WTO. Finally, it looks at the ICC’s interaction with other multinational networks and considers how much the ICN’s convergence-related initiatives will reduce conflicts among jurisdictions with respect to the treatment of specific matters and whether ICN inspired convergence will suffice to eliminate transnational conflicts.The authors see three major focal points for the ICN in the coming decade. The first is to build on its past successes and continue to pursue the identification and adoption of best practices with respect to substantive standards, procedures and the administration of competitive agencies. The second is for future ICN efforts to identify and make use of complementarities with the OECD and UNCTAD to provide a basis for the networks to identify areas in which collaboration will improve their collective effectiveness. The third is to examine and refine the ICN’s operational framework and determine whether its structure and operational forms are adequate to supports its current and future programs. Finally, the authors see major and administrative challenges ahead with problems of resources, financing, and management that must be resolved for the ICC to have a successful second decade.
I am particularly honoured by your invitation to this Second Biennial Conference of the European Society of International Law. Indeed, I am both honoured and pleased, not only because I am in Paris, but above all because I support the ESIL project, one of the objectives of which is to develop a deeper understanding of trade law and to promote closer cooperation among all those working in the field of international law. Admittedly, I have only distant memories of the Hague Academy of International Law where I once worked on estoppel, but the general theme of this conference – International Law: Do We Need It? – convinced me that there was room, this evening, for a non-specialist. It is in that capacity that I will be speaking to you, in the hope that I can contribute the views of a practitioner on the role and place of WTO law within the international legal order. In doing so, I am seeking to establish a constructive dialogue between doctrine and practice with the aim of improving normative and institutional coherence within the international legal order. Trade is to be found at the origin of entire segments of public international law, and it accounts for one of its main sources: the treaty. Indeed, one of the first international legal instruments to leave a trace in history was the commercial treaty between Amenophis IV and the King of Alasia (Cyprus) in the 14th century BC. This treaty exempted Cypriot traders from customs duty in exchange for the importation of a certain quantity of copper and wood. Nothing has fundamentally changed since then: at the beginning of the 21st century we still have bilateral trade agreements. But they now have to be reported to the WTO, so that they may be checked for consistency with international trade rules. The international legal order, on the other hand, has evolved dramatically. The great empires have disappeared into the annals of history. Philippe le Bel and Jean Bodin’s jurists progressively conceptualized the notion of sovereignty; the treaties of Westphalia ushered in a society defined by the pre-eminence of sovereign states, the 1815 Congress of Vienna laid the foundations of multilateralism, and the 19th century saw the first international organizations come to light. With the creation of the League of Nations, followed by the United Nations system and, finally, with the disintegration of the Eastern Bloc, the 20th century witnessed the evolution from traditional international law between states towards a contemporary and universal international law open to new players, including international organizations and non-governmental organizations. Thus, the international legal order has experienced a number of upheavals. But its evolution has been neither linear nor homogeneous – which is why international society still bears the marks of several historical stages in the process. As a metaphorical illustration, let us take the three physical states of matter: gas, liquids and, finally, solids. Today’s international legal order is simultaneously composed of these three states. Gas is the coexistence of particles devoid of any hierarchical differentiation: the Westphalian order made up of sovereign states organized according to an essentially ‘horizontal’ logic with a decentralized responsibility mechanism. The solid state is reflected in the European Union, the perfect example of an international integration organization which produces rules that it interprets ‘autonomously’ and whose primacy and direct applicability is guaranteed through a system of judicial remedy. The judicialization of responsibility of Member States for violations of Community law is a cornerstone of this integrated legal order. Between the gaseous state and the solid state, there remains the liquid state. It is to this category that the World Trade Organization belongs. Neither entirely vertical nor entirely horizontal in essence, resembling an organization for intergovernmental cooperation in certain respects while being closer to an international integration organization in others, the WTO represents a unique legal order or system of law. At the risk of oversimplification, in fact, I will draw no distinction between a system of law, a legal system and a legal order. The reason why the international legal order exists in several physical states is that it is evolving; and the WTO is both a product and a vehicle of that evolution. Indeed, the WTO is an international organization that brings together two concepts of international law. 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In Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in The United States Courts of Appeals (Michigan 2002), Jonathan Matthew Cohen, a sociologist and practicing attorney, asks a question that has received scant attention in the academic commentary on appellate judging: If we accept the dominant conception of appellate court judging as a process of atomistic contemplation, how do federal circuit court judges continue to maintain high quality opinions in the face of pervasively growing judicial dockets? Cohen advances the provocative thesis that increasing workloads have not prevented appellate judges from producing high quality outputs, but rather, that the dominant image of appellate judging as an isolated contemplative task is conceptually flawed. A better approach, Cohen argues, is to compare the task of appellate court judging to production within a multi-divisional private firm. While Cohen recognizes the inherent limits of his analogy, and in particular, that unlike private firms, circuit courts lack a central coordinating authority, he nonetheless contends that it is more fruitful to consider the judges in the manner of workers in a complex organization than as autonomous actors reflecting in isolation on the legal issues presented on appeal. In this review essay, Stearns considers three complementary methodologies for analyzing appellate courts that yield insights of particular interest to lawyers and legal scholars. Such questions include how appellate courts transform preferences into doctrine; the nature of cases that are likely susceptible to further appellate process through en banc, mini-en banc, or Supreme Court review; and how best to evaluate appellate court opinions. While organizational theory provides a useful starting point, Stearns contends that insights drawn from other methodologies, including economics (demonstrating how decentralized informational processes can provide more meaningful data), probability analysis (demonstrating the quality of data drawn from subsets of a larger group), and social choice (demonstrating the nature and limits of group decision making), might prove more fruitful in evaluating at least some of these questions. Stearns concludes that a comprehensive understanding of federal appellate judging requires not only an understanding of the circuit courts' internal organizational structure, but also an analysis of the edifice of circuit court decision making from inside and out.