Blockchain Papers

Nadhim Jawad Al-Maamouri

Objective: This study examines the legal and procedural challenges posed by decentralised finance (DeFi) technologies to the anti-money laundering framework in Iraq, The research problem lies in the clear regulatory gap resulting from the decentralised nature of these platforms, which relies on smart contract technology and blockchain to eliminate the need for traditional financial intermediaries; this decentralised nature hinders the ability of Iraq’s Anti-Money Laundering and Counter-Terrorist Financing Law No. 39 of 2015 to control cryptocurrency flows and establish criminal liability in this context,، Method: The study adopted a comparative analytical approach, analysing the text of Iraqi legislation and comparing it with the operating mechanisms of decentralised finance platforms, whilst also examining the extent to which it complies with the updated international standards issued by the Financial Action Task Force (FATF) In particular, with regard to Recommendation No. 15, Results: the study reached a number of important conclusions, the most notable of which is that the current legal definitions of funds and financial institutions in Iraq are outdated, thereby limiting the ability of regulatory bodies to track virtual assets, Novelty: The study also identified procedural shortcomings in the handling of encrypted digital evidence and recommended urgent legislative reforms, including the regulation and oversight of Virtual Asset Service Providers (VASPs) through the establishment of a dedicated institutional framework.

Osama Mustafa

It is worth noting that the topic of cryptocurrencies is characterized by modernity, and the resulting vacuum exists for many of them, and this is entirely the result of the failure of the vast majority of countries and international organizations to analyze them, to distinguish the topic as virgin, especially since it has been digital, so it pushes modern and innovative has become at the forefront. Details list Controversy around the world, as cryptocurrencies represented a dangerous stage in the development of currencies that we witness today in different eras, especially in light of the noticeable spread of these currencies, whether in the present or in the future One of the most important problems resulting from dealing in cryptocurrencies has become the lack of legislative texts that address disputes arising from the trading of digital currency in most countries and international organizations. We also did not find legal legislation for cryptocurrencies in Iraqi legislation that regulates them, and the issue of Research is considered a virgin topic in private international law. Being a complex and thorny subject that includes technical rules, technical complexities and multiple inter-related relationships involving multiple legal systems, which requires an integrated legal system.

M Qader Abdullah

Smart contracts are digital protocols programmed on the blockchain network that automatically execute agreements once pre-defined conditions are met, without human intervention.These contracts are characterized by transparency, speed, and security, as they are stored and documented on a network that cannot be easily modified.Smart contracts rely on software code that defines conditions and procedures, making their implementation precise but also irreversible or easily modified after publication. They are used in several fields, including decentralized finance (DFI), supply chain management, and digital healthcare.Despite these advantages, smart contracts face fundamental challenges, most notably software vulnerabilities that can be exploited by attackers due to the lack of a clear legal framework in many countries, the difficulty of interpreting human intentions through software code alone, and the limited ability of smart contracts to handle exceptional or complex situations.The research topic will be divided into a research plan consisting of an introduction, a section, and two sections.The first section addresses the concept of smart contracts, while the second section explains the legal status of smart contracts in civil law.

Abdul Basit Mawloud, Mustafa T. Saleh

The rapid changes under modern technology have had a significant impact on the business and investment sector, with the emergence of new businesses and investments in these businesses beginning to be leveraged by investors and specialized companies to generate significant profits.Therefore, virtual assets have emerged and spread, representing new, modern, and highly advanced digital tools. Specialized and appropriate legislation has been developed by a number of countries, with millions of dollars allocated to them. Individuals and investors have begun trading in them through specialized digital platforms, which are characterized by high security and guarantees.Virtual assets vary in several types, including cryptocurrencies, non-fungible tokens, and virtual land.From the above, the emergence of virtual assets has provided a distinct qualitative leap, thus necessitating the establishment of a specialized authority to monitor virtual assets traded and invested in across various platforms. This will achieve significant security for those engaged in these activities. Furthermore, there is a clear and significant legislative deficiency in the treatment of virtual assets at the Arab level in many countries, which constitutes a significant challenge in this regard. Furthermore, there is the problem of providing guarantees for the emerging technologies in various financial and commercial transactions. It is noteworthy that the Emirate of Dubai in the United Arab Emirates was the first to do so, under the Virtual Assets Law issued in 2022, the Yemeni Virtual Assets Draft Law of 1445 AH, and the Jordanian Virtual Assets Law, which was passed in May 2025.

Bariq Yousif Mohammed

The profound digital transformations currently shaping the world—particularly in the field of contracting—have given rise to a new type of legal relationship known as self-executing smart contracts. These contracts are characterized by their autonomous conclusion and execution through blockchain technology, without the need for continuous human intervention. This poses a significant challenge to traditional legal frameworks, foremost among them the conflict-of-law rules in private international law. These rules presume the existence of certain criteria that allow for the determination of the law applicable to the legal relationship in dispute, whether based on the place of contract formation, the place of performance, or the nature of the contested relationship. However, the decentralized technical nature of self-executing contracts undermines these assumptions and weakens the ability of the adjudicator to apply traditional legal tools in understanding the relationship and attributing it to the appropriate legal system.

Omar Rashid, Hatem hiad

The success of terrorist organizations in maintaining traditional resources to finance terrorist operations is sufficient to push them away from virtual currencies and their usual risks, as long as they are able to sell oil and transfer funds between their territories, and as long as their funds remain safe from attacks and persecution by the international community. Encrypted virtual currencies are characterized by high degrees of secrecy, privacy, and decentralization - and extremist religious groups And terrorism that adopts violence as a means of operation and expansion, and studying indicators indicating the growing importance of these currencies in circulation, exchange, and commercial transactions, nd in financing extremist religious groups and organizations, and financing the purchase of weapons and equipment used by these groups. It is a decentralized currency with no competent authority, and no central bank responsible for issuing it, and it is not subject to the restrictions of international banking and monetary institutions. This is a significant advantage that has attracted many individuals and groups to its circulation. Had international institutions and organizations been able to subject this currency to international oversight, or to a central authority, it would have lost its most important advantage, and terrorist and extremist organizations would have been unable to exploit it further.

Ciprian Paun, Dragoș Păun

This paper explores the principle of decentralization within the context of the 1923 Romanian Constitution and the subsequent challenges posed by the 1925 Administrative Unification Law. It examines the tension between centralization and decentralization, highlighting the evolving roles of prefects, sub-prefects, and notaries as representatives of central authority in local administration. The study argues that despite the constitutional emphasis on decentralization, the 1925 law reinforced centralization, leading to significant political and administrative controversies. Key debates from the period reveal how historical, cultural, and political factors influenced legislative decisions, particularly the preservation of Romania’s unitary state character. The article also discusses the implications of these administrative reforms on local governance, autonomy, and the efficiency of public administration. By analyzing parliamentary debates and legislative texts, the paper sheds light on the interplay between political power and administrative organization, emphasizing the need for a balanced approach to decentralization that accommodates local needs while maintaining national coherence. KEYWORDS: administrative reform, decentralization, local governance, Romanian Constitution (1923) J.E.L CLASSIFICATION: H11, H83, N44 1. INTRODUCTION The principle of decentralization has been a pivotal theme in public administration, serving as a mechanism for balancing local autonomy with national cohesion. The 1923 Romanian Constitution marked a significant step in embedding decentralization within the legal framework, emphasizing the need for administrative organization laws at county and communal levels to uphold this principle. However, the implementation of the 1925 Administrative Unification Law posed considerable challenges, as it leaned heavily towards centralization, undermining the spirit of decentralization envisioned in the Constitution. This paper delves into the historical and political context of these reforms, analyzing the roles of key administrative actors such as prefects, sub-prefects, and notaries. It explores the legislative debates and societal implications of these changes, highlighting the centralist tendencies that dominated the period. By examining the intersection of political power and administrative organization, this study provides insights into the complexities of governance in interwar Romania, raising questions about the efficacy and sustainability of centralization as a model for state administration. 2. THE PRINCIPLE OF DECENTRALIZATION IN THE 1923 CONSTITUTION Decentralization was perceived by the legislator "not as an autonomous administrative body like in the Middle Ages, disconnected from other administrative bodies, but in close and continuous collaboration." The 1923 Constitution stipulated in Article 108, paragraph (2), that the administrative organization laws of county and communal institutions would be "based on administrative decentralization," as opposed to centralization (1923 Constitution of Romania). A decentralized administrative organization can be identified when "… administrative organizations are recognized as having legal personality and assets (the commune and the county had legal personality), when these organizations have authorities that are not part of the central hierarchy, when they are subject to a specific form of control called administrative supervision, and when certain public services are detached from the competence of central authorities (Tarangul, 1944). Administrative decentralization can be broader or narrower depending on how its defining components are regulated by law. The degree of administrative decentralization essentially depends on the number of public services entrusted to decentralized authorities (territorial decentralization) and the manner of organizing and exercising administrative supervision." (ibidem) Under the new Constitution, which was based on "preserving the national and unitary character of the country in the application of administrative decentralization," the draft law and subsequently the law established the county and the commune as administrative units, endowed with legal personality (Articles 1 and 2), while the territorial subdivision, without legal personality (Article 7), included several communes "to facilitate supervision, ensure the enforcement of laws, and provide proper administrative guidance." (ibidem) Decentralization was not easy to achieve politically, as it had to be implemented without altering Romania's national and unitary state character, while also accounting for the fact that, at the time of Unification, various forms of decentralization coexisted within the four administrative regimes of the united provinces. (Monitorul Oficial, 1925) Regarding this "cultural mosaic," during the Parliamentary Debates in the Romanian Senate on March 31, 1925, opinions were fiercely contested:"For instance, adopting laws from Finland, where the cultural level of the population is almost uniform, and where there are no differences in mentality, customs, or traditions, is not a difficult task. But it is challenging in our case, where the gap between the primitive shepherd in the mountain depths and the highly educated intellectual is so vast, perhaps even greater than the gap between a toddler just learning to walk and speak and a fully grown adult. It is difficult to create laws because they must apply to everyone, and even more challenging is to introduce an administrative law designed to organize numerous issues concerning individuals and society." Political opinions were outright irreconcilable, especially when considering the administrative territorial architecture proposed by the Liberals on one side and the National Peasants' Party on the other. 3. CENTRALIZATION AND THE 1925 ADMINISTRATIVE UNIFICATION LAW The draft law, developed by C. Stere in 1929, envisioned broad local autonomy, limiting the central government's right to intervene in the internal affairs of communes and counties. It also proposed the establishment of a new administrative unit—the province (Scurtu, 1983). During the debates on the Liberal government's draft law, Ion Vescan, speaking on behalf of the National Party in the Senate on March 22, 1925, stated that the current government lacked the political and moral authority to present the country with an organic reform proposal for its administrative organization. He argued that the current legislative bodies were unfit to enact laws that concerned the very existence of the State and its permanent interests. The National Party opposed the administrative reform proposed by the Liberal government, deeming it flagrantly at odds with the principles of a modern administration rooted in the democratic idea of local autonomy, which was, in their view, "the only means to mobilize all healthy and honest forces across Greater Romania." (Monitorul Oficial, P. III, 1925) A Transylvanian senator criticized the substance of the Liberal draft law: "An administrative organization based on the old centralist framework, which for over half a century has stifled the development of county and communal institutions and the growth of civic awareness—the sole foundation of a conscious democracy—can only serve the interests of party absolutism and culminate in the despotism inaugurated by the current government and prepared by all its present legislation." (ibidem) Analyzing the parliamentary debates on the draft law, it can be stated that few laws voted by the Romanian Parliament sparked as much uproar and unleashed such political passions as the Law on Local Administration Organization. The reasons for this interest were manifold, most stemming from the relations and rivalries between the major political parties. Each party, considering its historical contributions to the Great Union, felt obliged to promote such an important law, foundational to the organization of the State's administrative life, rightly called the country's second Constitution.The democratic behavior of opposition parties was not met with understanding by the ruling National Liberal Party. The Liberals rejected any argument referring to realities in the historical provinces, where aspects of administrative organization were recognized by experts as being even more advanced than those outlined in the new administrative organization law. The lack of political compromise between the majority and the minority was evident in statements such as: "First, they have not yet become accustomed to the purpose, role, and power of majorities; they fail to understand that a country where the minority does not recognize the majority, does not recognize the laws and actions of the majority, is a country—or rather becomes a country—that forfeits its right to exist." The 1925 law sparked numerous controversies and even harmed the State by repealing partially better provisions, motivated purely by unjustified pride or the opportunism of unification. Enormous difficulties arose due to the lack of continuity in legal norms, the population's overt distrust in the authorities tasked with enforcing the law, and, not least, the negative atmosphere created by the provisional nature of the system, including the constant threat of abolishing the institutions established under this law. Even C.D. Dimitriu, as the Rapporteur, paraphrased his party leader, I.I.C. Brătianu, during parliamentary debates, acknowledging the project's shortcomings but refrained from amending any article or paragraph in line with the opposition's views, stating: "The law is not perfect; it is perfectible. Who could ever imagine, who could ever claim, that I would come forward with a perfect law?" (Monitorul Oficial, P.III, 1935) The 1925 Administrative Unification Law also conflicted with the provisions of the 1923 Constitution. The principle of decentralization, stipulated in the fundamental law, was not realized because the county prefect, as a representative of the central authority and simultaneously the head of the county administration, restricted the activities of local administrative bodies and even dissolved them with little procedural formality and even less scruple. In its effort to enshrine the unitary character of the State, the law largely continued the centralizing tradition of the Old Kingdom of Romania. Centralization became the administrative system throughout the country, representing a significant regression compared to the existing organization in the historical provinces. Local and county interests were governed according to regulations and financed by resources provided by the central authority, administered by officials directly appointed by the central government. It was well known that this outdated system, already contested in the Old Kingdom before 1918, was being adopted. "Centralism implies the necessity for the State to hold in its hands not only interests of a general nature but also those of a local character, whereas autonomy means that the management and administration of local interests are entirely entrusted to the locals, to those primarily concerned with these interests." (ibidem)The Rapporteur, aware of the advantages of local autonomy, emphasized that it "can yield admirable results when used wisely," but "not when it enables various territorial divisions of a State or various parts or cells of its political organism to develop at the expense of the State's general interests." (ibidem) 4. POLITICAL DEBATES AND LESSONS LEARNED C.D. Dimitriu insisted that it was appropriate for the State, "always vigilant," to ensure the timely oversight of "the proper and correct fulfillment of the functions of the various bodies called to work for the benefit of the entire organism." (ibidem) He agreed that "every commune and county should have as vibrant and prosperous a life as possible," but stressed, "let us always remember that the primary goal is the life and prosperity of the entire organism, the life of the State." This, he argued, must be ensured through effective control over the functioning of the State's components—communes and counties—a task that must be carried out by the central authority (ibidem). In the liberal legislator's vision, the transfer of authority and administrative and financial responsibility from the central level to local public administrations had to be carried out "within the limits of general interests." (ibidem) Under the spirit of the 1925 Law, three actors represented central authority within local administrations: prefects, sub-prefects, and notaries. The prefect—a Napoleonic creation originating from the eighth year of the Great French Revolution—was maintained in the exact form outlined in the Civil Code until the modification of the French Constitution in 1958. Before 1958, the prefect was the government's representative and the head of the administration in the department where they served. After 1958, in France, the prefect became primarily the representative of the State and national interests, followed by their role as the government's representative and head of the department. In Romania, according to the Law on County Councils, No. 396 of April 2/14, 1864, Article 91, the prefect was the "head of county administration, directing all works of this administration and executing the decisions of the County Council." The 1925 Law, Article 3, paragraph 2, described the prefect as the government's commissioner attached to the County Council. In this role, the prefect oversaw the legality of acts adopted by the County Council and the Permanent Delegation. If the prefect identified any illegality, they had the right and duty to appeal to the government within ten days of the act's adoption (if they were present at the meeting) or from the date they were informed. The appeal was suspensive of execution.In both the draft law and the 1925 Law on Legislative Unification, the prefect became a political official rather than an administrative one. During parliamentary debates, it was suggested that the prefect should "have a career background" or be accompanied by a second prefect elected to lead the County Council. Representatives of the National Party supported and argued for the proposal of having two prefects, "one administrative and one political." (Monitorul Oficial, P. III, 1925). The idea was rejected on the grounds that coexistence between the two prefects "would be absolutely impossible—detrimental to good administration." (The 1929 Law, discussed below, later regulated the institutions of the political prefect and the administrative prefect.) Regarding the career prefect, concerns were raised about the irresponsibility of recruiting such a public official. (This position would later be introduced in the 1938 Administrative Law, Article 97, paragraph 2). From the pool of county administrators in the Old Kingdom and the annexed territories, out of 351 prefects, 129 held university degrees, 35 were officers, 51 were former notaries, and 46 were appointed based on exceptional laws without any educational qualifications. In Bessarabia, out of 54 prefects, only 7 held academic titles, 24 had no formal education, and 23 were former active-duty officers. Considering the method of appointing prefects, it is evident that they were designated politically and represented the government in the county through the Ministry of Internal Affairs. The distinction between political, administrative, or career prefects is highly significant, as their legally conferred powers allowed them to politically influence local administration. In the 1925 legislator's vision, the prefect "represents the entire government, corresponds with other ministers, and may inform various departments of the issues they identify and the improvements that need to be made." At the same time, the prefect was the head of the police in urban communes and the head of the gendarmerie in the county (Anuarul pentru toți, 1929). The legal instrument through which the prefect imposed the will of the central authority on local interests was established by the provisions of Articles 78 and 333 of the law. According to Article 78:"The mayor and members of the Permanent Delegation may be removed by a motivated decision of the communal council, adopted with a two-thirds majority of the total number of councilors. The council may only pronounce removal for reasons of ‘poor administration, evident acts of incompetence, bad faith, or culpable negligence that compromise the commune's interests, acts against the order and security of the state, or criminal acts.’" The council was notified by a motivated proposal from the Minister of Internal Affairs for urban communes serving as county capitals and by the prefect for other communes, or by at least one-third of the councilors. Decisions of the communal councils concerning the removal of mayors and members of communal delegations were immediately communicated to the prefect for rural and non-county-seat urban communes, and to the Minister of Internal Affairs for other urban communes. These decisions became final if, within ten days of their they were not by the central removed had the right to within the same a decision could only be based on the of the County Delegation or the Administrative the mayor or members of the Permanent Delegation acts against the security and of the State or to by the central authority, they were removed even the council was not notified by the proper If there was with this is by based on the motivated of the Minister of Internal Affairs with the of the Administrative Council." Article 333 of the law the prefect a both a representative of the central authority and as the head of county administration. the head of county administration, the prefect was the of all they appointed and in with the Permanent Delegation of the County Council (Article The prefect also held authority over these The was a representative of the central authority and a to hold with all to with key and simultaneously to become with the needs of various (Monitorul Oficial, P. III, the prefect, the was a career could also be appointed as they had of and held an academic degree or a from a administrative The as the representative of the central authority in rural communes. the notaries were in the Kingdom without However, the law established four for notaries, followed by two by The law notaries two of and the under certain to become the was also as being "within the administrative the representatives of the central (Article Administrative decentralization the of the as an with legal The was to communal administration and in its (ibidem). In a administrative system, the was in to the principle of it was as a territorial without legal by a The directly to the prefect and carried out the decisions of the the County and any other through laws and The prefect could part of their through decisions, but not on a permanent principle of administrative decentralization, in the draft law and parliamentary debates, only on Under the 1925 Law, centralization became the administrative system, county or local interests were governed according to the and regulations established at the central by institutions by the central authority, administered by officials appointed by the central government, and through financial resources from the one of the project's the lack of decentralization, time will come when administrative decentralization can be in a Senate and just as discussed it in our (ibidem) The 1923 Constitution marked a pivotal in Romania’s administrative the for a governance model that It the of local administrations with legal autonomy, and the to their However, the subsequent adoption of the 1925 Administrative Unification Law the difficulties of constitutional into of decentralization, the law reinforced a administrative that the of local the central control over and communal interests. The implementation of the 1925 law was influenced by a of historical, political, and cultural At its was the to the unitary character of the Romanian state, particularly in the context of with administrative This with the principle of decentralization, in a governance model that leaned heavily on sub-prefects, and notaries, as representatives of the central authority, were in enforcing this undermining local autonomy in of Parliamentary debates during this period political divisions the appropriate between centralization and the Liberal Party centralization as a means of national and administrative the National Party and other opposition for greater local autonomy, rooted in democratic These into legislative and a lack of the implementation of The of the 1925 Administrative Unification Law is one of for balanced By local interests to central authority, the law the development of local institutions of the needs of their It also a on central which stifled and local the administrative of the on this historical period provides insights for The challenges in the interwar period the of decentralization in a manner that local autonomy while national modern this as a of the need to administrative that local authorities without the of the The principle of decentralization, can more and to the of modern governance, the of the interwar period highly The between central oversight and local autonomy a yet of effective administration. the and debates of the period a historical on how to achieve this that governance are not only legally but also and to the needs of 23 a pentru pentru toți, 1929 Oficial, a a 1925 Oficial, a a Oficial, 1925, a Oficial, a a 7 1925 Oficial, a a 1925

Enas Qutieshat, Bassam Al-Tarawneh, Osamah Al Naimat

Contract theory is considered one of the legal theories most affected by technological development. Technology has become a challenge and a test of the extent to which the provisions of the law related to the contract on the basis whether such theory is able to respond to technical development. This paper deals with smart contracts in the light of the Jordanian civil law texts and the Jordanian electronic transactions law, to determine whether the current legal texts can recognize the legality of such contracts on the one hand and the ability of the Jordanian legal system to apply this type of contracts. It has been concluded that the smart contract cannot be considered a contract unless the basic pillars of any of the contracts stipulated in the civil law are available. The Jordanian Electronic Transactions Law until the moment of writing does not regulate smart contracts based on automated implementation of the terms of the contract without human intervention, as it covers only the stage of contract creation. In addition, the mechanism of creating and implementing this type of contract constitutes a legal challenge to most of the rules governing the contract in Jordanian law.

Ulysse Pavloff, Yackolley Amoussou-Guenou, Sara Tucci-Piergiovanni

Ethereum has undergone a recent change called the Merge, which made Ethereum a Proof-of-Stake blockchain shifting closer to BFT consensus. Ethereum, which wished to keep the best of the two protocols designs (BFT and Nakomoto-style), now has an involved consensus protocol as its core. The result is a blockchain being possibly produced in a tree-like form while participants try to finalize blocks. Several attacks jeopardizing liveness have been found in this new setting. The Ethereum community has responded by creating a patch. We discovered a new attack on the patched protocol. To support our analysis, we propose a new formalization of the properties of liveness and availability of the Ethereum blockchain, and we provide a pseudo-code. We believe this formalization to be helpful for other analyses as well. Our results yield that the Ethereum Proof-of-Stake has probabilistic liveness, influenced by the parameter describing the time frame allowed for validators to change their mind about the current main chain.

Petro PATSURKIVSKYY, Ruslana Havrylyuk

The article considers the Swiss model of fiscal municipalization from the ideological and methodological positions of the anthroposociocultural approach. Such components of this approach as historical and genetic methods together with the method of system-structural analysis were applied especially thoroughly and consistently. By means of them it was found that the Swiss model of fiscal decentralization is an attributive part of the construction of public power in Switzerland – municipalization from bottom to top. Special attention is drawn to defining the basic legal features of the Swiss model of fiscal municipalization. It is argued that subsidiarity does not paradigmatically coincide with decentralization: the principle of subsidiarity postulates the sovereignty of the basic territorial collectives and considers the possible conditions for its limitation for general social needs and values. On the contrary, the principle of decentralization has the national level of governance as the starting point and considers the conditions of delegation of certain tasks and competences by the state to the lower levels of public power hierarchy in the principal frames of state sovereignty. Specificity of the principle of subsidiarity in Switzerland is that cantons play dual role from the standpoint of administrative federalism. On the one hand, they are the bearers of sovereignty of public power, including taxation. On the other hand, they are the sole bearers of administrative authority and are obliged to serve national interests, that is, the needs of the entire Swiss Confederation. Paradox is that this service function of the cantons gives them considerable benefits in the inevitable opposition to the Union state, when it comes to provision of services of the entire fiscal system and the entire system of public finance.

Meisser, Luzius, Gabriela Hauser-Spühler

Bitcoin und die zugrunde liegende Technologie der Blockchain sind längst keine Randphänomene mehr. Zwar ist Bitcoin in vielerlei Hinsicht neuartig. Das steht aber einer Einordnung als «Geld im weiteren Sinn» bzw. als «Kryptowährung» nicht im Weg. Bitcoin ient zurzeit primär als Spekulationsobjekt, aber auch zur Wertaufbewahrung und als Zahlungsmittel. Während das Bitcoin-System nur die Übertragung von Bitcoins erlaubt, ist die Blockchain von Ethereum, der zweitgrössten Kryptowährung, frei programmierbar and erlaubt die Emission beliebiger «Tokens». Diese können Währungen, Anleihen, Aktien oder beliebige andere Vermögenswerte mit oder ohne vom Emittenten garantierten Wert darstellen. Kryptowährungen haben das Potenzial, einen Digitalisierungsschub im Finanzbereich auszulösen. Um dieses Potenzial zu realisieren, bedarf es aber noch der Klärung verschiedener Rechtsfragen und der Beseitigung rechtlicher Hürden.

Gerald Spindler

Die Digitalisierung erfasst alle Lebens- und Rechtsbereiche, auch das Gesellschaftsrecht. Der Beitrag befasst sich mit den Einflüssen der Digitalisierung auf die verschiedenen Formen der Kommunikation im Gesellschaftsrecht, sei es der virtuellen Gesellschafterversammlung oder des Einsatzes digitaler Medien in den Organen, aber auch gegenüber potentiellen Investoren. Dabei werden die jeweiligen rechtlichen Rahmenbedingungen auch jenseits des Gesellschaftsrechts beleuchtet, etwa medien- oder datenschutzrechtliche Fragen. Die Digitalisierung wirkt sich aber auch auf die Haftung der Organe aus, indem mehr verfügbare Daten und verbesserte Algorithmen dazu führen, dass die Organe die verbesserten Informationen zur Entscheidungsfindung nutzen müssen. Umgekehrt ist IT-Sicherheit heute „Chefsache“ geworden, da durch die Digitalisierung der Wertschöpfungsprozesse Unternehmen bei Ausfall ihrer IT-Systeme in ihrer Existenz bedroht werden können. Ferner ermöglicht die neue Technologie der Blockchain die eindeutige Nachvollziehung von Transaktionen, damit auch von Abstimmungen, bis hin zum Einsatz in der Rechnungslegung. Besondere Fragen werfen neue Investitionsformen unter Einsatz der Blockchain-Technologie auf, etwa die DAO Ethereum. Abschließend wird ein Blick auf die Formen der engen vertraglichen Kooperation bei Industrie 4.0 geworfen.

Nicolas Jacquemart, Stephan Meyer

No abstract is available for this record.

Tina Ehrke-Rabel, Iris Eisenberger, Elisabeth Hödl, Lily Zechner

Distribuierte Systeme, wie die Bitcoin-Blockchain, stellen das Recht vor neue Herausforderungen. Das disruptive Potential liegt unter anderem im Fehlen einer zentralen, verantwortlichen Kontrollinstanz, an die das Recht traditionell anknupft, und im Verschwimmen der Rollen von „ProduzentInnen“ und „KonsumentInnen“ innerhalb des Systems. Die Erzeugung von Kryptowahrungen, wie Bitcoin, mittels „Proof of Work“ und die gleichzeitige Validierung von Transaktionen zwischen NetzwerknutzerInnen (sog „Mining“) ist ein Beispiel dafur, dass die rechtlich etablierten Kategorien heute fur eine effiziente Rechtsdurchsetzung unzureichend sind. „Mining“ kann rechtlich zwar als Glucksspiel iSd osterreichischen GSpG eingeordnet werden. Konsequenz dieser Einordnung sind allerdings Probleme beim Vollzug des folglich anwendbaren Ordnungs-, Abgaben- und Strafrechts. Daraus wird geschlossen, dass die Regulierung von „Peer to Peer“-Systemen neue Losungsansatze erfordert, sodass dem Staat seine rechtliche Steuerungsfunktion erhalten bleibt.

Tina Ehrke-Rabel, Iris Eisenberger, Elisabeth HHdl, Lily Zechner

German Abstract: Distribuierte Systeme, wie die Bitcoin-Blockchain, stellen das Recht vor neue Herausforderungen. Das disruptive Potential liegt unter anderem im Fehlen einer zentralen, verantwortlichen Kontrollinstanz, an die das Recht traditionell anknüpft, und im Verschwimmen der Rollen von „ProduzentInnen“ und „KonsumentInnen“ innerhalb des Systems. Die Erzeugung von Kryptowährungen, wie Bitcoin, mittels „Proof of Work“ und die gleichzeitige Validierung von Transaktionen zwischen NetzwerknutzerInnen (sog „Mining“) ist ein Beispiel dafür, dass die rechtlich etablierten Kategorien heute für eine effiziente Rechtsdurchsetzung unzureichend sind. „Mining“ kann rechtlich zwar als Glücksspiel iSd österreichischen GSpG eingeordnet werden. Konsequenz dieser Einordnung sind allerdings Probleme beim Vollzug des anwendbaren Ordnungs-, Abgaben- und Strafrechts. Regulierung von „Peer-to-Peer“-Systemen erfordert neue Lösungsansätze, um staatliche Steuerungsfunktionen zu erhalten. English Abstract: Distributed ledgers, such as the Bitcoin blockchain, create new challenges for authorities and legislators alike. The technology is considered disruptive due to the lack of a responsible legal entity and because the lines are blurred between the “producers” and “consumers” operating within it. The creation of cryptocurrencies, like Bitcoin, through “proof of work” and the simultaneous validation of transactions between users of the network (so called “mining”) perfectly illustrate how established legal categories are insufficient to achieve effective law enforcement at present. This paper shows that according to Austrian law, “mining” qualifies as a gamble. In that case, the applicable provisions of Austrian regulatory, tax and criminal law are, however, hardly enforceable. It follows that the regulation of “peer to peer”-systems requires an innovative approach, in order for the state to remain a key player in managing society.

G. Lubbe-Wolff

Gertrude Luebbe-Wolff, born 1953, studied law at the Universities of Bielefeld and Freiburg (1969-1974) and took an LL.M. degree at Harvard Law School (1975). Having compeleted post-graduate practical legal training and received a docotoral degree (University of Freiburg, 1980), she worked at the University of Bielefeld and qualified for academic teaching and research (“Habilitation”, 1987). From 1988-1992 she served as Director of municipal environmental administration in Bielefeld, where her family lives. As a professor of public law at Bielefeld University, faculty of law (since 1992), she headed the directorate of the university's Center for Interdisciplinary Research (1996-2002), chaired the Federal Government's Council of Environmental Advisors (2000-2002) and received the Leibniz Award (German Research Foundation, 2002). Prior to being elected Justice of the German Federal Constitutional Court in 2002, she was a Deputy Judge at the Constitutional Court of North Rhine-Westphalia. I have found it difficult to identify the writings that have been most important to my intellectual history. The reason may be reluctance to accept the idea that any single book has had the power to influence me at all. To my own surprise, almost all the books I have listed are books that I first read before I was twenty-five. Number ten is the only exception. Most of the fields in which I have worked and at least one of the fields in which I have read a lot, and which has influenced some of my writings (economic theory), are heavily underrepresented or even not represented at all. So be it. When in doubt, I have preferred to name books by German authors. I thought that would be more interesting to non-German readers. In Gustav Schwab's colorful renarration, the ancient Greek myths had been adapted to nineteenth-century pedagogical purposes, mainly by purging them of explicit sex and of some of the cruelties that might frighten children too much (like Chronos’ devouring his offspring). Yet, what remained was enough to intrigue a little girl instilled with Catholic ideals of virtue and growing increasingly critical of some of the humans who advocated them. So little virtue even in gods! The higher in rank the god, the worse: Zeus frantic, promiscuous, and—that much could be read between the lines—a rapist. His wife, Hera, jealous enough to try killing one of his illegitimate sons by sending snakes into his crib. And so forth. I suspected that the Greeks had molded these gods after their own image and felt there was progress in praying to a more civilized god. Nevertheless, I found Mount Olympus and its inhabitants more thrilling to read about than the Christian heaven and Christian Trinity. What totally escaped my understanding when I first became acquainted with Hercules, Theseus, and Achilles was the fatal importance of the type of heroism they represented for the historical self-perception of Germans. None of the adults who, to my delight, liked my recounts of the adventures of these heroes (reports on earlier readings had been much less successful in capturing attention) ever commented on that side of the story. Decades later, I found out on my own. “Her thoughts are my thoughts, and our feelings are the same,” I wrote into my diary in early 1966, having started to read the diary Anne Frank wrote during the more than two years she, her family, and four other Jews spent hidden in an Amsterdam achterhuis before the Nazi occupants found them and eventually killed all of them except Anne's father. The presumptuousness and blatant inadequacy of these identifications did not occur to me then. I was aware that her situation and the way she coped with it were incomparable. But that did not prevent me from feeling closer to her than to anyone I had met in the books of my first twelve years. However, unwarranted this feeling of intimacy may have been, it had an effect that would have pleased Anne. More than anything I had experienced so far, it opened my eyes and my heart for the monstrosity of what my country had done, and for the enormity of the loss it had caused. Schiller is best known as a dramatist and lyric poet; however, he was also a historian. His History of the Thirty Years’ War (1790) is the first major historical work I read. The great war that devastated Germany from 1618 to 1648 is a pivotal event in German history. Many European powers were involved as protectors of their fellow believers and, of course, in pursuit of interests of their own, although, in essence, it was a war between Protestant and Catholic territories of the Holy Roman Empire. If Germans later became obsessed with the “state,” it is because of what they had had, instead, for centuries: an Empire, albeit in decay, unable to subject the vested rights and interests of the princes of its more than three hundred territories to common public purposes, whether civil or military, and unable even to prevent its members from waging war against each other. As Hegel, to whom I will come later, put it in his Essay on the Constitution of the German Empire (1801): “When only too often, you see vast numbers of German soldiers in the field, trust that they are not up to defend Germany, but to lacerate its viscera.” From Schiller's history of the Thirty Years’ War, I learned about the worst and most traumatizing example of this calamity. From his accounts of what the presence or passage of huge armies meant for a region, even if they were friendly, and from his depiction of the extremely unfriendly siege and conquest of the city of Magdeburg by Catholic Bavaria's army under General Tilly, I learned about the extremes of hardship and cruelty that may accompany warfare. I also gained an idea of how standards of humane behavior are affected by material conditions, for instance, by whether there is a means to feed brigades other than by forced requisition and means of remunerating them other than by giving them license to rob and murder (“They must get something for their peril and labor,” Tilly said, in Magdeburg, when supplicated to stop his soldiers from plundering, setting blazes, assaulting women and spiking babies, or throwing them into the fire.) There was also evidence, however, that present material conditions, however important, do not necessarily work as full determinants. Under material conditions quite similar to those under which Tilly's army operated, the Protestant Swedish king Gustav Adolphus, according to Schiller, managed to set limits to what his troops could do to the local population. Even he could not disallow his soldiers three hours of pillaging after taking over Frankfurt an der Oder, but the general disciplinary regime was severe punishment for all excesses, and, on the whole, the conduct of the Swedish army was exemplary, so Schiller, the Protestant, reports. Schiller's description of the atrocities of the Thirty Years’ War also confirmed my belief that the world I lived in was a much better place than the world of Tilly's and Gustav Adolphus's contemporaries, and that this was not momentary good luck but the consequence of a progress toward reason and humanity that while open to backlashes was unlikely to be completely reversible. The Holocaust presented a challenge to that conviction, but not, in my view, a refutation. It was only much later that I arrived at a clearer understanding of that intuition. Schiller himself, the fervent spokesman of Enlightenment, was not naïve in his optimism nor in his idealism. He believed in the power of the ideals of freedom and tolerance, just as he acknowledged the power of religion; however, he also knew and described how such powers needed association with less sublime interests and ambitions in order to become effective historical forces (this association is what Hegel, later, called the “stratagem of reason”). Schiller's narration does not include the history and the details of the Peace of Westphalia, which ended the war in 1648. Nor does it contain an analysis of the historical importance of this long and terrible religious war on the way to full recognition of religious freedom as a human right, or of its importance for the development of international law (it is not accidental that Grotius's De jure belli ac pacis appeared in the course of that war, in 1625). Schiller wrote too early for that. His other historical book, the History of the Revolt of the Netherlands,1 may be more enjoyable (same delightful language, same grasp of the human fears and passions at work, not so many battles). If, nevertheless, the History of the Thirty Years’ War made the greater and more lasting impression on me, this is probably not only because it was my first experience with great historiography but also because it gave me an initial sense of the role of war in the history of mankind and of its particularly prominent role in the history of Germany. Wittgenstein's Philosophical Investigations were my introduction to analytical philosophy. I loved the work, although (or perhaps precisely because) I felt it was people other than myself who badly needed his instruction. It is probably due to my pleasure with Wittgenstein that I considered studying linguistics and, having rejected that plan and studied law instead, made legal semantics one of my first objects of research. Later, when ordinary-language philosophy inundated the philosophical book market and came to dominate philosophical faculties, much of what I read and heard regarding it bored me out of my mind. Understanding the meaning of “meaning” and the meaning of the other languages you use seemed a necessary but not everywhere a sufficient prerequisite of good philosophy. One day, I hope, my compatriots will admit Rudolf von Jhering to the place of most eminent German jurist, which has long been occupied by Friedrich Carl von Savigny. This would indicate that German legal culture is pragmatic, rational, and strong. Savigny, a great savant in Roman law, was the head of the Romantic school of law, and the most prominent opponent of codification at the beginning of the nineteenth century. Law—like language, fairy tales, and folksongs—so he held, had always grown slowly and quietly out of the specific spirit of a people and should continue to do so. The young Jhering, himself a Romanist, admired Savigny for his analytic power in discovering the fundamentals of Roman law under the layers of doctrinal sediment accumulated by generations of less-than-inspired jurisprudence. Still, in trying to carry on with the same endeavor and to explain jurisprudence as an art—or, rather, a science, like chemistry—that consists in finding the conceptual elements and more abstract rules implicit in the existing legal material, he ended up advocating an awareness of how the formation of legal concepts and rules is a matter not just of logical analysis but of human interests and purposes (Purpose in Law, 1877–1883). Accordingly, the Romantic view of the evolution of law was to be rejected. Law and rights, Jhering explained in The Fight for the Right (1872), were not the result of organic, silent, plantlike growth but a product of conflict and combat. Not only their adaptation to changing needs and circumstances but even their mere effective maintenance must be fought for. Going to court when your right is being intruded upon, willfully, is a contribution to that fight and a duty of the citizen toward himself and toward the community, even if only a small material value is at stake. The ideal values at stake are the legal order and the good morals that depend on it. This is what you defend in defending your right when it is violated, and it is from the readiness to engage in such a fight for your right that you can recognize the status of a society's moral health. It is forty years since I first read Purpose in Law and The Fight for the Right and fell in love with Jhering's brilliant style, his humor, and the ravishing mix of his rational sobriety and sensitiveness to human feelings. As a student of law, in much of what I had to read and listen to, I missed Jhering's pragmatism, his rule-oriented reasoning, and his sense of how good mores are tied to good law. As a judge, I learned to appreciate that some of those who have been wronged abstain from filing a lawsuit. However, it is probably due to Jhering that I know the importance of what I am doing not only when examining the Treaty of Lisbon but also when dealing with so-called petty cases. This book is famous—or infamous, with parts of the audience—for the message concentrated in its subtitle (A Report on the Banality of Evil). Arendt's observation that Adolf Eichmann, the leading administrative organizer of the Holocaust, was a nondescript, utterly nondemonic subordinate and the subtitle phrase in which she had summed up this finding stirred intellectual and emotional turmoil in the ’60s. I did not quite understand that. Would it be more comforting to think that, where there is exorbitant crime, there must be some sort of devilish power in the delinquent? To me, the idea that great, immeasurable crimes can be committed by people devoid of any Luciferian greatness or other stature did not seem disquieting. What struck me was not Arendt's analysis of Eichmann and his trial but the part of the book that describes the course of the deportations all over Europe. I do not know whether this account is historically correct in every reported detail. It certainly is not comprehensive in identifying the reasons why patterns of collaboration or, less frequently, noncollaboration evolved so differently in the various European countries. However, it gave me a more vivid sense than many other readings had given me previously of how the project depended on compliance and acquiescence;2 of the extent to which, therefore, the presence or absence of empathy mattered; of the extent to which empathy had been absent in Germany; and of the complexity of factors bearing on how each nation behaved in this historical instance. In an auditorium of one hundred German students, you will not find one, today, who has read Karl Marx. During the student movement that began in 1968, this was different. The blue volumes of the works of Marx and Engels, if not the complete edition, printed in the German Democratic Republic, were the central object of study, and it was from Marx's Critique of Political Economy, from the three volumes of his Capital, that the activists drew their assurance of victory. It delivered scientific proof—so those who knew told those who had not yet understood—that capitalism was just a transitory phenomenon, doomed because of the unalterable tendency of the rate of profit to I much of what I in the of the I did not have any for the But what if our part of if the of the of the was not a matter of but a matter of I was about the of and the of mankind the way you could the of the nevertheless, I did not see a full of the of such in Karl of So I studied Marx's Capital, other writings of to find out whether his to have of the historical of was As as I the on the that the value of a is by the of that is to it. the to the by the tendency of profit to with the of human needed in Marx's however, I found his of necessary to be a from which, when you to see what was in the that Marx had with up with their way such a could work as a to the of the course of history. This is how the first of me that I did not have to to is the of the important in my The two most important are my and my must be given for my with the whom I met at a in Lisbon in most people know only from Karl The and its where he is as and as a of I do not know of a greater in the history of philosophy. What of Right is all and in which he is from all his from its had long been on the of law and as in of with its into a of right, dealing with rights and and a of virtue being precisely by its of any or other with the of virtue those of law. It is this that to with his of law and mere as because they on and do not include Christian of while with all its because it any is as but that is The of that law and order and must not be and against each other but must be to a in which the of its and elements is not but and is this or This is in the and and of the of and it most when you at the elements of what called elements are and himself in other this to the the three elements of virtue which are the of in the Catholic and In his of the the family the ideal of you to the general mainly by for your own good and that of your the ideal of And the which the of taking part in it their and it as their own the ideal of an that the right to own of Catholic ideals of a moral which consists in that will human and interests in a way that is with will them work the common He moral and as ideals of In an and more it will under circumstances be sufficient to be just and that is the better of The of philosophy of right was to about legal as a consequence and prerequisite of moral about the necessary of and progress as he to the of from one country to about the of and about the of he against the that will from any at a by mere virtue or by be it religious or than by law. have to understand and his in books can be This one was part of a I a years for the of better understanding the against as an of that was historically prominent in Germany. most known works are about capitalism and the role of Jews in today, was one of the after the of War I a German to the world from to the of To the of and the German of a in the war as the critical between heroism and the German an to his his wife, and to to more there the only profit and The of German and German is of anything that even or, more European and This is From the German self-perception had in with and found in moral war as the most on because it was at war that the moral of German heroism became and many from the between and War was into a of and I with a better understanding of the between the elements of that and with a more sense of the and involved in the of and with more awareness of the to international and law.