Blockchain Papers

Meghana Shivakumar

It is vital for the world to keep up with and evolve at the same rate as technology. One such technological innovation is blockchain. Despite the fact that something has been on the spectrum for quite some time, only recently has it gained any attraction. This chapter begins by introducing the concept of blockchain and how it operates on the internet. A summary of the extensive coding and math needed is provided in plain text and simple terms. The chapter further discusses smart contracts, which are seen as a critical component of any transaction that takes place in blockchain. However, just like any other formal contract, there is a possibility of disagreement. Most smart contract disputes are settled using the same contractual laws. It is also essential to note that the method of resolving disputes is an important consideration. The author in this paper aims to analyse the procedural aspect of resolving disputes, more into the use of blockchain mediation. Lastly the author concludes by urging the fact the alternative dispute is the need of the hour.

Florence Guillaume

This paper examines civil and commercial disputes involving Decentralized Autonomous Organizations (DAOs) and the complex questions of private international law that arise. The legal capacity of a DAO to be a plaintiff or defendant in court varies across jurisdictions, highlighting the need to determine the applicable law to a DAO. A distinction must be made between different types of DAOs. There are currently a few jurisdictions, notably in the United States, that have enacted DAO legislation defining a legal status for such entities. Those regulated DAOs are governed by both computer code and company law. In other jurisdictions, existing company structures can be used to offer a legal wrapper to DAOs. However, the vast majority of DAOs currently in existence are constituted and solely governed by code, posing challenges in bringing them before a state court. The paper explores recent case law and the difficulties in identifying the appropriate party to sue when pursuing a DAO. Using Swiss law as a basis, it examines the qualification of DAOs under private international law and the challenges of anchoring a global digital entity to a specific jurisdiction. The article illustrates these challenges through three types of disputes: governance, contractual, and tort-related. Determining jurisdiction over a DAO-related dispute requires applying private international law rules. Although the paper assumes Swiss courts for convenience, the reasoning can be applied to different legal systems due to the similarities in conflict of jurisdiction rules. However, challenges persist even if a court has jurisdiction and renders a decision, as enforcement may prove difficult, especially on-chain. Additionally, initiating legal proceedings against a DAO presents issues with serving court documents. DAOs offer opportunities for innovative electronic methods of document service, but specific requirements and restrictions exist for international service of documents. Practical difficulties may arise, making it impractical or unattainable to serve court documents on the defendant. The analysis concludes that state courts currently struggle to ensure reliable access to justice in disputes involving DAOs. As an alternative to state courts, opting for Alternative Dispute Resolution (ADR) mechanisms, such as Blockchain-based Dispute Resolution (BDR), can offer a simpler and more efficient solution depending on circumstances. In any case, entrusting dispute resolution to a BDR mechanism avoids the complexities associated with state court procedures.

Julien Chaisse, Kehinde Folake Olaoye

International investment law (IIL) functions at a crossroads with other branches of international law.1 One area which has not received sufficient scholarly inquiry is international finance and banking.2 This may be because historically, more disputes between foreign investors and host states have occurred in the natural resources sector, which continues to bear the lion’s share of arbitration disputes.3 Even though some of the earliest and most notable foreign investment disputes centred around loans and financial instruments,4 by the 1970s and 1980s, disputes in the natural resources sectors set the stage for the emergence of IIL as a distinct field of international economic law.5 In the last decade, non-primary sectors like healthcare, technology and finance have been identified as crucial sectors where more investment disputes will occur in the future.6 Like these sectors, international finance and banking is a highly decentralized area of law,7 which is gaining traction in IIL. For leading international financial hubs where the economy essentially depends on financial services, a rise in finance-related disputes has important implications for law-making internationally and regionally.8

Dirk Wiegandt

Blockchain technology is considered one of the most disruptive technologies of our times. At the same time, by means of smart contracts stored on a blockchain, all or parts of an agreement can be executed automatically upon certain triggering events. Some consider that with smart contracts becoming more and more complete and self-executing, we will enter into an era of dispute resolution without the involvement of a neutral third party (conciliator, mediator, arbitrator) or even an entirely dispute-free environment. By contrast, it is submitted that disputes are inevitable. The question is not whether disputes arise, but which means of dispute resolution are best suited to resolve disputes arising in the context of blockchains and smart contracts. While not the only mechanism, it is submitted that arbitration is particularly well-suited for many types of disputes and, if adapted to the specific expectations and needs of (enterprise) users of blockchains and smart contracts, may play a central role in a blockchain and smart contract environment. blockchain technology, smart contracts, distributed ledger technology, decentralization, disintermediation, oracles, automation, artificial intelligence, cryptocurrencies, NFTs, Kleros, digital dispute resolution

Barrie Sander

In his new monograph, Informed Publics, Media, and International Law, Daniel Joyce sets out to explore the role of the media both as an object of international legal regulation and as an influence on international law’s development and structure.1 Given the obvious connections between the media and international law, one might have expected the topic to have already garnered extensive interest within the existing literature. Yet, as Joyce observes at the outset, ‘[f]or all its ubiquity and power, the media has to date been the subject of surprisingly limited attention within international legal scholarship’.2 In this context, the publication of Joyce’s text may be viewed as part of a recent wave of literature that signals growing interest in the subject amongst international legal scholars, whether due to rising concerns over the use of international law in public debates,3 or as a result of the exponential growth of new channels of communication, most notably digital media platforms.4 In tackling the multi-dimensional relationship between the media and international law, Joyce’s approach is historical and critical, illustrating both ‘the resilience of existing international law frameworks, but also their significant silences’.5 The historical perspective is particularly valuable in surfacing interesting continuities between present-day controversies and earlier eras. For example, Joyce reveals how contemporary concerns about the relationship between international law, populism, and social media,6 find echoes in a range of formative debates about the relationship between international law, public opinion, and the press in the early twentieth century.7 The drawing of historical parallels is particularly important given the fast pace of developments in the sphere of communication in the digital age. In particular, as the notion of Web 3.0 (or Web3)—the much-hyped third generation of the Internet premised on ‘decentralised’ technologies, touted to follow static webpages (Web 1.0) and social media and user-generated content (Web 2.0)—begins to enter the public consciousness, adopting a historical perspective may help nurture what Elizabeth Renieris recently termed an outlook of ‘informed skepticism’.8 As Renieris explains, similar to its predecessors, ‘Web3 is imagined as being apolitical, open, decentralized and inclusive’, seemingly oblivious to the fact that ‘[t]his ethos—characterised by free speech absolutism and free market ideals—has enabled all manner of online harms, including rampant mis- and disinformation, racism, discrimination, hate speech and harassment, concentrations of power, toxic business models and limited accountability’.9 In this context, Joyce’s text is particularly useful in situating the shifting contemporary communication sphere along a broader historical trajectory, tracing the neoliberalisation of public communication across different time-periods and settings, and shining a spotlight on the role performed by international law in the process. Beyond its critical and historical orientation, at the centre of Joyce’s text is the concept of ‘informed publics’, characterised as ‘a more inclusive and messier picture of the social and connective tissue of international law’ than the notion of ‘international community’.10 If claims made in the name of the latter are often merely ‘attempts to translate the particular into a language of self-serving universalism’,11 Joyce advances the notion of ‘informed publics’ as ‘a model of international civil society which allows for greater variety of forms of association’, both by ‘contest[ing] the state-centrism of international law and better reflect[ing] a system which involves not a single participatory democracy but a range of regional, domestic and local polities’.12 For Joyce, ‘international law depends on informed global publics to function and to address the complex global problems which we face’.13 In this way, the concept of ‘informed publics’ emerges as a ‘normative goal’ for international law, one which ‘remains critical to any future conception and realisation of a multilateral system of global governance’.14 It is the concept of ‘informed publics’ that draws into view the dual inquiry at the centre of Joyce’s research:15 first, the role of international law in regulating the media, including new forms of digital media; and second, the reliance of international law on the media in communicating its objectives and norms as well as in its functioning as a system. In reflecting on Joyce’s work, this review follows the book’s structure, with a particular focus on the text’s discussion of the relationship between digital media and international law. In the first half of the book, Joyce examines a range of international law frameworks applicable to the media which adhere to different regulatory models—each recognising and foregrounding certain values and interests to the marginalisation and exclusion of others. In Chapter 2, Joyce examines the regulatory vision of free publics, encompassing the ways in which human rights law (particularly freedom of expression) has sought to protect media freedom from State intervention, as well as how international trade law has sought to ensure free markets for the global media economy.16 Both areas of law emphasise media freedom—with human rights law focused on protecting the media’s societal watchdog function, and trade law focused on deregulation and market access.17 Yet, as Joyce explains, this emphasis comes at the expense of addressing ‘the power of the media itself and its own connections with violence and the abuse of rights’.18 In Chapter 3, Joyce turns to the regulatory model of endangered publics, encompassing the ways in which human rights law (concerning incitement, hate speech, and propaganda), international criminal law (concerning atrocity speech), and international humanitarian law (concerning media activities in armed conflict) address the connections between the media and violence.19 While these areas of law counter the reductively positive image of the media that underpins the regulatory vision of free publics, Joyce observes that they nonetheless ‘configure the dangers of media power as being exceptional rather than structural’ and thereby contribute to ‘a failure to connect media violence with its economic and political power’.20 Finally, in Chapter 4, Joyce discusses the regulatory model of digital publics, encompassing forms of Internet, data, and platform governance, which are characterised by ‘an absence of international law’ and an investment of faith in the promise of ‘self-regulation, market-driven innovation and techno-libertarianism’.21 Joyce suggests that while international law and the media are often depicted as being ‘existentially threatened by technological disruption’, at least part of this ‘crisis’ concerns ‘the ongoing failure of international legal frameworks to address the rise of information capitalism in the form of digital media monopoly’.22 Across these chapters, Joyce offers a compelling analysis of the international regulatory landscape applicable to the media, traversing a diversity of contexts to critically surface both the blind spots and biases identifiable within a range of fields of international law. In an era of specialisation, where scholarship is becoming increasingly siloed, Joyce’s ability to bring diverse fields of international law into conversation with one another is particularly valuable. At the same time, by adopting such a broad perspective some level of detail and nuance is inevitably sacrificed. In exploring the relationship between international law and new forms of digital media in particular, Joyce’s text unveils many of the challenges that have arisen in attempting to reign in the power of today’s leading digital media companies. However, to some extent, I would argue, Joyce understates the significance of both the state and the law in both enabling the neoliberalisation of the contemporary digital communication sphere and in continuing to legitimate various repressive practices undertaken within it. Whilst acknowledging that the Internet ‘evolved in collaborations between governments, the military and academic institutions’,23 the role of both the state and legal frameworks in the Internet’s historical trajectory remains somewhat marginalised in Joyce’s account. The influence of the state on the shape of the contemporary online environment is well documented. Monika Zalnieriute, for example, discusses the dominance of the ‘US Information-Industrial-Complex’, which ‘catalysed the rapid growth of information and communication technologies within the global economy, while firmly embedding US strategic interests and companies at the heart of the current neoliberal regime’.24 Support from the US government took at least two forms. First, the US government provided significant amounts of funding and awarded a range of procurement contracts to US technology companies—a fact that not only undercuts the neoliberal myth that private wealth accumulates because free markets are kept distinct from public expenditure, but also provides important context for the Edward Snowden disclosures which revealed close ties between the US National Security Agency and a number of US technology giants.25 Second, the US government also supported its largest US technology companies by promoting an ‘Internet Freedom’ agenda abroad, premised on ‘globally “normalised” strong legal protections for intellectual property rights, advertising-based consumerism and the commodification of information and personal data’.26 And it is here that both domestic and international law become part of the story of the neoliberalisation of the contemporary online environment. As the works of Julie Cohen and Amy Kapczynski, amongst others, have demonstrated, ‘rising platform power, monopoly power, and the power that technology can give capital over workers and governments over the governed … are mediated at every moment by law’.27 At the domestic level, fields such as contract, trade-secrecy, intermediary immunities, privacy, and the First Amendment helped anchor the rising power of online platforms, while at the international level, trade agreements have prohibited the restriction of cross-border online information flows and forbidden data localization rules.28 As Kapczynski argues, ‘a wave has rippled through our law … [which], intertwined with the architecture of digital networks, has enabled the creation of the vast new firms that wield new forms of surveillance and algorithmic power, … [and] delivered us a form of neoliberal capitalism that is inclined toward monopoly, concentrated power, and inequality’.29 By placing emphasis on the absence of international law in the digital domain,30 Joyce’s account understates some of the ways in which both domestic and international law have helped shape the neoliberal communication sphere that characterises the contemporary online environment. Beyond shaping today’s online environment, international law also performs a role in legitimating certain repressive practices within it. Joyce’s account is alive to law’s legitimation function, particularly in the context of discussing the co-option of the vocabulary of human rights law by social media companies ‘not as binding legal norms, but as available ingredients to enable corporate self-regulation and marketing’, as well as ‘to minimise the damage to their reputations’.31 Yet, the legitimation function of international law extends beyond this corporate context. Consider, for example, the recent majority judgment of the Grand Chamber of the European Court of Human Rights in the bulk surveillance case of Big Brother Watch and Others v UK.32 The judgment endorsed the legality of bulk surveillance operations as in principle ‘valuable’ and of ‘vital importance’ for states seeking to identify threats to their national security,33 provided such programmes contain sufficient ‘guarantees against abuse’ and are subject to a set of ‘end-to-end safeguards’.34 By adopting this approach, the majority judgment adhered to a form of ‘procedural fetishism’,35 which has been characterised as nothing less than ‘a grand, definitive normalization of mass surveillance[,] by a virtually unanimous Grand Chamber[,] for decades to come’.36 In his concluding remarks, Joyce suggests that ‘it is important to reconsider the value and resilience of existing international media law frameworks including, most significantly, the human rights model, but also to be realistic about the failures and problems associated with that system’.37 Yet, while Joyce acknowledges the limits of the vocabulary of human rights law in general terms—including how the human rights system ‘struggles with controlling private power, individuates and simplifies collective and highly complex issues, and often underplays their structural dimension’38—a more detailed exploration of the ways in which human rights law has legitimated and struggled to reign in particular forms of private and state power in the digital domain would have helped prepare the ground for assessing the extent to which it is equipped to address the accountability deficits associated with the contemporary online environment.39 In the second half of the book, Joyce turns to examine how the media is coming to shape various dimensions of international law. In Chapter 5, Joyce explores publicity as a technique utilised by international courts and actors to claim legitimacy and signal their authority. Joyce focuses in particular on the fields of international criminal law and human rights law, observing how ‘mediatized trials have public relations benefits, but also present the now familiar dangers of media spectacle’, whilst ‘human rights witnessing promises connection but can also deliver commodification and simplification’.40 Reflecting on these tensions, Joyce concludes that while adopting media forms and engaging in public relations may be understood as ‘the international legal system … responding to demands for greater transparency, accountability and participation’, ultimately ‘publicity cannot act as a substitute for informed publics who are so often kept at a distance from the levers of institutional power and influence’.41 In Chapter 6, Joyce considers the broader critique of the communicative capitalism that underpins international law’s reliance on the media and its increasingly digitalised form. To this end, Joyce examines ‘not only the media’s role in bringing issues to public consciousness, but also its implication in the preservation of silences and the maintenance of obsessions and anxieties’,42 and reveals the ways in which the growing reliance of international actors on digital media platforms ‘further entangles the field with neoliberal ideologies embedded within the infrastructure of Silicon Valley’.43 The result, Joyce concludes, is that ‘publicity promises participation, but delivers digital media monopoly, corporate “values” as structuring norms and increasing private power on the international plane’.44 Joyce’s analysis in these chapters is again impressive, drawing on a diversity of disciplinary perspectives ranging from political theory to communications studies to reveal how the turn by international actors to mediated techniques of publicity has produced ‘effects of both visibility (for one or a group of victims or a theme) and invisibility (for other forgotten victims, contextual analysis and different or competing claims and causes)’,45 whilst masking and facilitating ‘the broader privatisation of the public sphere’.46 Where the text might have delved deeper, however, is in surfacing the ways in which the contemporary online environment enables the reproduction of inequalities, for example along gender and racial lines. In discussing mass atrocities in Myanmar, for example, Joyce points to the failure of Facebook to prevent its platform being used as a tool to incite violence against the Rohingya community.47 However, what is omitted from Joyce’s account is any exploration of the reasons behind Facebook’s passivity in this context.48 Reflecting on the contrast between Facebook’s de-platforming of Donald Trump following the US Capitol riots and its general passivity in Myanmar, Rebecca Hamilton has reflected upon ‘the role that economic and political power—coupled with cultural affinity, and distributed unevenly across and within States—plays in the decisions of major [social media companies] about what content stays on their platforms’.49 According to Hamilton, global inequities behind how content is moderated on digital platforms are partially a reflection of capitalism, calculated in the advertiser revenue that a platform derives from an American user compared to a user in Myanmar, and partially a reflection of unevenly distributed political power, with ‘years of local activism, coupled with international reporting and a United Nations Commission of Inquiry [being required] to finally get Facebook to take the kind of de-platforming action [in Myanmar that] it did in the United States’.50 But another part of the story concerns systemic racial bias. As Hamilton notes, major social media companies ‘continue to default to the cultural assumptions and political and economic incentives held by their predominantly white American male founders’.51 This ongoing ‘diversity crisis’ in the digital technology sector is significant since, as UN Special Rapporteur on contemporary forms of racism, E Tendayi Achiume, recently observed, ‘technology … that disproportionately excludes women, racial, ethnic and other minorities is likely to reproduce these inequalities when it is deployed’.52 Joyce also critically discusses ‘platform humanitarianism’, encompassing the turn within the human rights movement towards ‘commodified forms of advocacy, fundraising and competition for attention and power between NGOs’, initially drawing on the emergence of global media, but today increasingly reliant on digital media platforms ‘to communicate its messages, seek publicity and engage in digital witnessing in the attempt to capture audiences motivated by humanitarian concerns’.53 One example that Joyce explores in this context is the notorious Kony 2012 campaign, in which an organisation called Invisible Children distributed a video across various digital media platforms calling for the capture and arrest of the leader of the Lord’s Resistance Army, Joseph Kony, by the end of 2012.54 As Joyce notes, the aim of the video was ‘to engage the American people to place on their government to the of military in to the in its to capture In this way, the video sought to a by the International Court into a in to his Joyce the Kony 2012 for the of the political in and to its whilst also to the broader that the focus of such may attention from social in the Yet, as the of has recently a to this story is how the a example of by as ‘the of social and economic value from the racial of another only is the Kony 2012 video with racial but by the US of the may also be within a broader historical in which international law has performed a role in the of value from the in international such as the or and military as For the of this form of global is the of and the of form of between the wealth and the of While Joyce acknowledges the that media may audiences and publics from for the of the racial dimensions of digital are at but not In Informed Publics, Daniel Joyce has made a valuable towards the complex and diverse connections between international law and the the end of the book, Joyce observes its ‘the media is not given the significance or in international legal which it has in other such as international political and social It is that with the publication of Joyce’s book, this to at a when international actors are to on the future regulation and use of digital media platforms, they would well to on the critical and historical in this The is to the and in the of International discussion on Daniel Joyce’s Informed Publics, and International Law, as well as the for their are the

Zeenat Beebeejaun, Alessio Faccia

Abstract The intrinsic complex nature of Contracts in the Energy sector leads to frequent international disputes. The complexity is generated by (i) the involvement of multiple stakeholders with potentially conflicting interests (Multinational Companies, State-Owned Companies, Host States and their citizens); (ii) transnational jurisdictions divergence (local laws, investor’s country laws, international practices and regulations); and (iii) changes in the laws and regulations over time (long-term nature of Energy contracts). Therefore, not surprisingly, traditional litigation in the Energy sector is often replaced with Alternative Dispute Resolution (ADR) through the recurrent application of Arbitration clauses. This article aims to improve dispute management in the Energy sector by encouraging best ADR practices. Modelling and Conceptual research approaches are adopted to encourage the introduction of the smart contract. The analyses triggered the drafting of a model for contractual automation. Recurring top clauses are mapped and associated with Equity solutions. Moreover, a comprehensive, efficient and feasible ‘Electronic ADR’ framework is shaped to prevent (or automatically settle) disputes in the Energy sector.

Vaishnavi Dandotikar

No abstract is available for this record.

Ioannis Revolidis

No abstract is available for this record.

Brian Sanya Mondoh, Sara M. Johnson, Matthew Green, Aris Georgopoulos

No abstract is available for this record.

Michael Davar, Ioana Bratu

No abstract is available for this record.

Florence Guillaume, Sven Riva

For the past twenty years, the use of the Internet has facilitated international commercial relations between people who do not know each other and who are geographically distant. Disputes resulting from e-commerce have undermined the supremacy of state courts, which have proved unable to provide an appropriate response to small claims arising in an international context and raising delicate questions as to jurisdiction and applicable law. The length, cost and complexity of the procedure, as well as the risk associated with the international enforcement of the judgment are deterrent factors that led e-commerce platforms to develop online dispute resolution (ODR). Thanks in part to the removal of intermediaries, the transfer of cryptocurrencies and other crypto assets using blockchain technology has further facilitated international commercial relations. The decentralised and distributed characteristics of blockchain technology and the pseudonymity of its transactions has led to a new economy growing independently from nation states. This technology has brought an additional degree of complication in the application of Private International Law (PIL) rules by removing the illusion that online transactions can be linked to the territory of a state. Smart contracts also allow the creation of digital entities that can enter into commercial relations. The first Decentralized Autonomous Organization (DAO) was the source of a resounding dispute between parties with diverging interests, which had to be urgently resolved without any access to state courts or a dispute resolution mechanism. This case revealed the risk of disputes in the blockchain environment and the resulting legal uncertainty, and led to the emergence of various models of blockchain dispute resolution (BDR) mechanisms inspired by the solutions developed in e-commerce. This chapter deals with the application of PIL rules to the resolution of disputes involving DAOs. The authors first analyse what is a DAO and whether DAOs legally qualify as companies. What is at stake is the legal personality of DAOs and their capacity to conduct legal proceedings. The authors then examine whether disputes involving DAOs may be brought before state courts. This analysis highlights the problems related to the location, pseudonymity, and uncertainty regarding the legal personality of the participants of the blockchain environment, which challenge the jurisdiction of state courts in case of a dispute. The authors then draw on the experience acquired in the field of e-commerce to examine the advisability of setting up alternative dispute resolution mechanisms available to the actors of the blockchain environment. Based on an analysis of existing BDR mechanisms, the authors examine whether and how BDRs are likely to avoid a denial of justice and bring legal certainty to disputes related to contractual relationships with DAOs formalised through smart contracts as well as disputes related to the governance of DAOs. The authors find that a BDR decision which can be directly enforced through smart contracts confers effective justice to the actors of the blockchain environment. Finally, the authors address the more delicate issue of the enforcement of a BDR decision on non-crypto assets. This approach shows that a type of justice based on crypto-economic incentives challenges the concept of fair justice. This could be an impediment to obtaining the assistance of state authorities for the enforcement of a BDR decision outside of the blockchain environment as this type of decision could be considered contrary to public policy. The analysis is mostly based on Swiss PIL and major PIL conventions. In this chapter, the authors outline the contours of a new private justice system designed to provide decentralised autonomous justice to the actors of the crypto economy.

Mykhaylo O. Baymuratov, Boris Ia. Kofman

The article is devoted to the scientific and theoretical substantiation of the position on the formation of international municipal law as a field of modern international public law. In domestic jurisprudence, the topic is being studied for the first time. The authors connect the emergence of international municipal law with the processes of constitutionalization of international public law and the internationalization of the constitutional legal order of states. These processes were accompanied by the growth of international recognition of the institution of local self-government. First of all, through its international legal regulation and contextualization of topical aspects of the activities of local governments, taking into account their international activities. In particular, through the development and adoption of a number of international multilateral treaties and the preparation at the United Nations level of the draft World Charter of Local Self-Government. In the context of the internationalization of the constitutional legal order of countries in the field of urban law, significant processes of borrowing international legal standards of local selfgovernment by state constitutional law are indicated. Based on the analysis of international practice, a conclusion is made about the compliance of Ukrainian legislation with international standards. At the same time, recommendations are given for its improvement, in particular, for financing local governments, budgetary decentralization, limiting the competence of local state administrations, etc. The formation and development of the architecture of modern public international law, its institutional and structural system is usually associated with its sectoral construction, which is based on the definition of the subject of legal regulation and method of legal regulation. The emergence of a new subject of legal regulation in public international law, as an independent and autonomous legal system, is based on the actualization, emergence, activation, contextualization of cooperation in a new field of interstate cooperation, which in practice is determined by the emergence of a new object of international law. In this case, the methods of international legal regulation in public international law remain constant – either imperative or dispositive. However, today in the formation of new branches of public international law plays an important role trend that emerged during the formation of a new form of globalization – legal, which has such a nomenclature – the constitutionalization of public international law and the internationalization of constitutional order. In general, the national legislation of Ukraine meets world standards, but some legislative norms should be improved. First of all, this concerns the financing of the local state administrations, limiting the competence of local state administrations to the level of control functions and mediation between the local governments, the executive branch and the President. In addition, it makes sense to provide a mechanism for the implementation of the international legal standards for the subjects of Ukrainian local self-government.

Neus Torbisco‐Casals

The emergence of an international judicial system is often perceived as a cornerstone in the process of building a ‘global’ system of governance.1 Since the end of the Cold War, we have witnessed the rapid proliferation of international courts and tribunals (hereinafter ICs) and the progressive expansion of their scope of jurisdiction to areas as diverse as trade, the law of the sea, human rights, and international crimes (Katzenstein, 2014; Kingsbury, 2012). These ‘new-style’ ICs and quasi-judicial bodies (Alter, 2014, p. 68) allow for wider access from potential litigants, and they are more autonomous than their predecessors, operating often on a transnational rather than inter-state model (Keohane et al., 2000). In doing so, they transcend their function of mere dispute settlement mechanisms to become law making actors in their own right, with significant discretion to interpret international law (Besson, 2014, pp. 419–428). This development has been hailed as a major shift from an international system based on politics and power toward one governed by shared rules and principles under a genuine ‘global rule of law’. Cosmopolitan-minded scholars and advocates, who dispute the place that territorial borders and national identities should have in delimiting our fundamental rights and allocating public goods, rejoice about the gradual collapse of the divides between the domestic and the international. Yet with the growing independence and expansion of the mandate of international judicial systems, these mechanisms have attracted attention as to their legitimacy and accountability in relation to different stakeholders. The international judiciary is no longer seen as “the least dangerous branch.”2 For some critics, accepting the jurisdiction of ICs entails ceding national sovereignty to ‘foreign’ judicial powers, which have an increasing capacity to create new law. For others, the international judiciary in the absence of a global democratic constituency represents another imposition of Western values that remain alien to other cultures. Moreover, in the current political climate, institutions of global governance, including ICs, are confronted by growing reactionary populist movements that pit democracy against internationalism. To these movements, the turn toward transnational forms of governance, legality and adjudication is perceived as a democratic dysfunction and belittled as harmful to the preservation of the identity and autonomy of a (monolithic and nationalistic) view of the polity. Regional and international human rights bodies, and the International Criminal Court (ICC), are particular targets, insofar as they typically address how states should treat individuals on their own territory. They also tend to protect marginalized minorities against the majority's conception of the identity and values of the polity, and seek to impose rule of law constraints on the executive and legislative branches that often claim democratic support. Yet other ICs—especially in the area of trade—have also become the target of populist and sovereigntist leaders as they are seen to impose unjustified constraints on desired domestic policies. In light of such diverging approaches, it becomes ever more crucial to inquire into the foundations of international courts' legitimacy. To this end, a number of scholars have called for a ‘democratic’ re-conceptualization of the international judiciary (Bogdandy & Venzke, 2014; Grossman, 2013). This has generated attention to a broad range of elements, from appointment processes to procedural rules in order to guarantee judicial independence but also accountability to different stakeholders (Grossman, 2013; Pérez, 2017), typically with a focus on specific types of courts (Føllesdal et al., 2014; Hayashi & Bailliet, 2017; Hennette-Vauchez, 2015). Yet, as I will argue, by reducing the so-called ‘legitimacy deficit’ to a problem of institutional factors and representation of ‘national’ constituencies, we might be overlooking a deeper dimension of the ‘diversity challenge’—one that emerges out of the need for and The this by an of the legitimacy of ICs that to some of the in the populist of ICs, in particular the between democracy and internationalism. The from human rights courts and international as these are the of as I seek to is also to other ICs with domestic political is the for dispute settlement mechanisms in international and law and to a also international such as the International Court of I by in more the of democracy and for the legitimacy of ICs and with the of which has been a an global and in a of populist movements ICs in more democratic shared and a model of domestic and international Yet, as in such for a turn toward a ‘democratic’ model of international adjudication have an of the democratic accountability of domestic courts in the for the they This is it to the of the judiciary with to and the representation of has been in some and the of such of a particular domestic to some of the toward the the advocates, and in particular a of the of might and that might a of in international as a for the legitimacy of courts and increasing the of judicial by a more of The emergence of political the and forms of governance, as as the and power of In the of a gradual of the ICs transcend their function as a mere dispute settlement to become more than in other we these of the view of sovereignty in the of the international of human domestic a in the scope of rights to their systems, legislative in this area are often to and the one the to and the to which they are is the for be in but the be to individuals who to to the for this least of as a fundamental of the other the capacity of to their the international has For to a in the of a but to against the and domestic courts their to the Court of This might the in order to the of fundamental rights in the of such as the to as against of in their ICs interpret an of international in an a mere function of dispute and public in a that is to a representation a significant of discretion in the and international law in order to They in and they rights in a international the international and the domestic the of The of this are international human rights courts in rights bodies on on tribunals impose on to with of legitimacy have in the of these To the that ICs are the of international they to the that domestic courts for legitimacy to the of and typically between such a conception and a the factors that the of actors the and of & be as they are the of a process of and with political this on of these of legitimacy are For the for about the legitimacy of ICs their as of in the of and the other an legitimacy is this and and in and domestic For the legitimacy of the states and and and individuals have to this as against their This a significant for the and and has to their from in a is more the international than as ICs to in a in order to actors to with their states their and of public as domestic might be the system as with other international ICs they are as by democratic & p. insofar as the international judiciary it becomes more from a democratic that who are by such system that they are their own p. In the the democratic legitimacy of ICs is based on to to their Moreover, international adjudication is of as to to on this are to the in which to judicial is and to of procedural the the it in a and the in & such an democratic for the of public by the international judiciary is in with the new of ICs as bodies with significant In the for the legitimacy of domestic be to the international as the a and which a democratic for claim to These about legitimacy have become more in the current of populist that to democratic to and international The against human rights and global of this also entails a against international courts and quasi-judicial For in and a number of public have to from the and to the of sovereignty to a The the on and other the of against and has also been as to the of political as a against the sovereignty of a democratic In order to these legitimacy have to ICs in democratic the International scholars the that national and transnational as the should as a for of ICs (Bogdandy & Venzke, 2014; Grossman, 2013). This the democratic which tend to become and the institutional of ICs, and their need for processes of political The of jurisdiction by ICs is in the of a more of public of legitimacy to be in this toward is an increasing focus on of accountability and on the need to the independence of ICs and other bodies with a their power and it with the of The of a is typically to the of the in of international law and to for in a conception of In for has to the of the the of domestic institutions that be the of the of seek to by international to domestic and the legitimacy of ICs & 2014; to are in a number of For in the mandate of the entails that and to and should be by the as a a is to and In the human rights the has on the of more in the of the from states & in the of the Court of have with in to that domestic are to human rights and the rule of law p. for have been with to & In from this the legitimacy of ICs insofar as they are perceived as with and domestic of democratic is perceived as a they rather than domestic a the autonomy of the international system is in of an model of public that claim to legitimacy in this is in their but ICs with states in a global rule of law. that this conception on the relation of ICs with domestic and on the of et al., et al., 2014; Hayashi & Bailliet, Yet these and other to institutional mechanisms to ICs to domestic processes overlooking a deeper legitimacy to the of and of have attention in the of international they are crucial courts are to as of marginalized of judicial and a for the of by courts The conception of public accountability is based on the of but the of minorities and identity and domestic The that to adjudication legitimacy judicial processes are as a to protect the rights of is a that such and to divides and of the In the current of growing populist democratic and against rights, this is For one by democracy against the values in human rights that are in as constraints on This conception of rights as on sovereignty is in the of a of “the leaders typically a politics of to and against that are as to and In this conception of democracy as the against rights often place often by an of public including are into executive are is by on of and is and and on The of a model of in diverse states a of this about to to the need of new of and rights as rights a number of some of in order to and other rights of and national Yet and the of the between the and in a of and to global have as a to such and human rights of and to other 2014; & In of such as the current global to that on international human rights The claim is that are between human rights and such as the of from In the of this the to a view of the based values to that are perceived as of of political to impose to the of human rights, the of minorities in the of national minorities their and rights by an political climate, courts and to protect and forms of transnational with political against states that to protect human for the international judicial by to protect their from International human rights law is in by the and other ICs domestic are for to and of rights and that to the are out in these international judicial International has become an for to The for has a of the of for the and identity of these as of their to This is for that seek for human rights by but to public legislative and of of and rights are often of global human rights that against of the human rights of in minorities et al., to with minorities also in other the with to the crimes in in and of are for in on a international are an in with of particular to Yet, in this to domestic public that remain an between rights the and the identity of the which are as these to the is the of international adjudication in delimiting the between and forms of to remain in the model which in the of the international and in the public accountability of the international is a need of the legitimacy of international adjudication in a that of and ICs are as institutions of global governance, of legitimacy should a the the need for a more the model of democracy to the of domestic and to for the power of ICs as a of to the foundations of the international rule of law. This the need to for democratic legitimacy in international it from the of a the of democratic processes and a more In it that one for democratic legitimacy is to address of with to 2000). on this is a on rule the guarantee of rights, but to and to that are marginalized a of a politics of this the of a conception of democracy as it of the that as to legitimacy international it our view to how different are and in the international than domestic constituencies, a more conception of representation should the of the global as by individuals in diverse and and by growing and To this ICs should seek the but a range of actors who an global in that transcend territorial and This international transnational and global movements, of which have an increasing in global and of global such as human rights, rights and the of the power by ICs might as from a democratic that that are of of domestic Yet international courts should legitimacy their in a for the and of international that is of the of that have to domestic also In with the this conception of legitimacy on forms of toward a of and in the current of against democracy and human rights, this focus the of and that have been by national and other The legitimacy of international from such as but from in the of and a more conception of a global rule of law. of but the is how ICs and how ICs and the individuals and that a diverse global a of this the scope of public accountability of the should be ICs should be to states as but to an international by a of actors that a global the ICs legitimacy democratic and to domestic but rather from their their legitimacy their and a diverse global states and national to access international mechanisms of and ICs a that to law from the an to the of and other and to treat their they a potential the To the that they and public to that are in democratic they of and In doing so, is international law in that this but international adjudication has the potential of a for and the and to in 2014; & The of legitimacy to international the potential of in a of international law ICs in on to and on global public on by a of in the international This to the need of making global including ICs, more and 2012). focus on independence and in the to ICs to domestic for this as is no of the law that the of This is to that to independence and are to the also Pérez, Yet the of a and the of the are to on the to a representation of the of minorities in public institutions to the in states with a diverse the 2000). The so-called of to the of identity is seen as in the of democratic legitimacy and has in domestic that for judicial The is the international and how to the legitimacy of the dimension of in the international might be to a of shared of the international The representation of states has been an for ICs, but other forms of have been in international the about the of in ICs which has attention in and the for a more about legitimacy and in the international and other international scholars have such be to the of for such (Grossman, also Hennette-Vauchez, 2015). is the but of the problem might be that judicial and are to on this of of international are often to political to political which on the of to be as international as international The of a of the legitimacy of ICs, their public is that representation is to as with genuine rights to the public to international human rights which in order to this the of has as an of rather than of pp. typically that no from their from in public a that it of a become as the of as as This entails that democratic legitimacy be in that are to forms of as as of in public institutions is of are from the of also the international The of for other than that be the of to it of processes that one another to in it the constraints some in their and as the of the of their as with who in their have more pp. The of to a of and political and systems, the of and in which individuals in a This as to the of but they from to rules and in pp. In they systems, including of tend to be in and that individuals this of to of often are which as of harmful as pp. are to be the of the To the that democracy that a have the that they are this rules out the of from representation the of of to the and the rules that will This the democratic legitimacy of the of and political including public adjudication a of and of democratic a of and a of legitimacy that This of the of and approaches, which have that the of international law a et al., 2000). might also processes how they to the and of potential in the of public as a for democratic the for increasing in ICs be from other more as I focus on such one to public the other to the of is as the representation of the in international but also of a of and which are to the of international adjudication as a public of is for from a and that also the of in of in identity which are typically from the public and to a in this is in the which has a as an to and of it to a more of as in the of institutions to their to more is an of shared identity and values as of a which an of institutional in the that the domestic that in tend to as as and other they that they will a and and have typically been against a of These might be to which are the of with in with the of that are of such as the in the system of in the with a of of that a identity domestic and which have a are for the international we legitimacy from the of which have a in international more in international The of from the by in the the of on institutional legitimacy (Alter, & of representation which tend to to to of judicial but to that the is a of who are against their a international is as power rather than processes and as to the and of and is that a in the to the appointment of an from The in of of their rights, which on the of minorities to access and mechanisms the are in a global by power and about and actors of are to in international which for the of their in international these in a toward the of from Yet international mechanisms are to often of in they are often as and is for an international system that to to of of which might on the of international to institutional becomes to the and of the and in ICs a more with a diverse global public might be crucial to the of ICs 2015). To be on will For the populist that are the of international adjudication it have the and in & 2017), they might more diverse courts as Yet also for populist be a in courts they often as the other ICs might from a to diverse in order to in the of to the In by and other forms of ICs their legitimacy the of of transnational and a to institutions be perceived as in the of and 2012). than in other individuals as of and In this be that and of procedural also has an as institutions have a human the representation of the and identities that remain marginalized in building international institutions might be crucial to the of and democratic legitimacy. International as should function as a of judicial the and of minorities and marginalized states as genuine of the international an to the of of national others, and to treat their they have a and democratic might to a of and which it to of a genuine of To the that some litigants, the judicial processes as against their their and it is to as a for the perceived legitimacy of In the for more also be to the of some the process and of are by of et al., 2013; 2013). 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The Court to the that and of in the might have also been by and a of of as they are to be are as the The of such of potential be into the of other international The of is a as but also in the territorial that have international including the International Court of in have out that the to in of of to more these of might be seen as of the to by to the of international law are and a process that is but also and a more diverse international mere the of identities and their increasing the number of and also of who to the of by and that are typically in who to a and and who to the of in In the of the a judicial of to more making of potential to the imposition of more to in The is by that the of a is on a of principles but on the capacity to the of a 2013). from a of and will diverse to on to judicial and the of The of this is by the of in one of the the the in the a to the of the and against the of the by the in of and an on the of the national the to a as the to the of the rights and of and the of public the of the to the of the as an that it have a it be it should be that the in that the of The also the of in of rights and that to for with In own is in is the of who the and who To international adjudication is confronted with a legitimacy that be by forms of democratic the of ICs to the and by transnational minorities and states that remain the of international and as identities and a in the growing of global institutions as to and be the international and by the are on but on who has the power to create and interpret international which are for global of human rights, for are seen by as for the global of of and scholars have called for an of human rights and law with and 2014; and we need a more of human more of The be of other areas of international from law to territorial To this end, we need to ICs, as other institutions of global governance, into more and as a of a and more conception of legitimacy. the of legitimacy a To be the of a global constituency significant to the of the democratic of institutions of global governance, including Yet, as I have ICs should domestic in order to but rather should a for and of who seek to states for and human rights This model of legitimacy an of the international by states but by and The of to the about the of which have been typically from a that on the representation of states and their in appointment the under which ICs are to as of minorities and marginalized become we of the To be some attention has been in to the of in international bodies, to a growing of the in this (Grossman, & 2017; Yet the on institutional and has a more of such as the and in which international are a the of has been in The of the has for to in and the of the process and of These are as rather than of it is the mere of and of and the dimension of more diverse also crucial to the of judicial more forms of as the legitimacy of judicial This a shift from the of international judicial toward the democratic and of a more international The has the potential of the of ICs in to from the political the of and ICs might be more in as democratic institutions and their be as In a more of should also into the by minorities and the legitimacy of international adjudication might to the system and it from democratic by populist movements that the international I to and for their and as as their the process that to this in the by the global I also to the of the of which the of the of the a by and in I to in this for their and also to in the international law the a on a and to for to for and of and to for by et is the on and a the International of the is also an of has the of and areas are international human rights rights and of and is a on and of International by the is the of as

Máxime Chevalier

Abstract Blockchain dispute resolution has led the crypto economy to the surge of a new form of dispute resolution: blockchain arbitration. Resolving disputes on-chain is becoming necessary as national and international legal frameworks are not adapted to the characteristics of blockchain transactions. More importantly, the legality of smart contracts is highly debated under various national laws. This new sui generis form of arbitration should not be assimilated with traditional arbitration. Indeed, blockchain arbitration might not fit within the traditional international arbitration framework, and it does not have to. Because blockchain arbitration operates as an oracle, the decision from the jurors automatically triggers or modifies the smart contract. Through the blockchain technology, arbitration has reached the possibility to automatically enforce arbitral awards with no need to rely on state courts’ authority. Observing the legal theories of international arbitration, blockchain arbitration enshrines the representation of delocalized arbitration, but simultaneously leaves room for a new representation of arbitration: decentralized arbitration. In the next decades, we will see the surge of the blockchain arbitral order, an independent legal order anchored in the Lex Cryptographia. This essay advocates for the recognition of the blockchain arbitral legal order and tries to draw its contours.

Lisa Toohey

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.

Sophie Nappert, Sarah Chojecki

Rapid advancements in digital technologies and their accelerating adoption throughout all sectors of the economy have radically transformed our lives. Stepping through the looking glass of the digital economy and the nascent Web3, this article explores how new forms of tech-enhanced evidence – involving artificial intelligence, blockchain, drone, and extended reality technologies – are emerging. Building upon this backdrop, the article focuses on the influence of these new technologies on the subject of evidence in international arbitration.1 It examines the opportunities and risks presented by these technologies through various use-cases, considering their potential to enhance efficiency, accessibility, fairness, and due process. While recognizing the significance of tech-enhanced arbitration to meet the needs of the 21st century, the article underscores the importance of understanding the benefits and limitations of these technologies. It concludes that, although the technological advancements are essential, the human factor remains pivotal in upholding the fairness and legitimacy of the arbitral system.

Stephen Park, Tim Samples

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.

Christopher D. Clack

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.

Adéla Nekvasilová

New technologies and private international law Abstract This thesis aims to explore the impact of new technologies on the field of private international law. In particular, it analyses the different legal areas that have been affected by digitalization and the challenges that arise as a result of this process in terms of how to regulate the issue from a legal perspective. The aim of the thesis is to analyse the existing legal framework with a focus on EU legislation and to assess its application to legal actions arising in the digital environment. The thesis also deals with the legal regulation of international trade and distributed ledger technology (blockchain) and its aspects in relation to private international law. Last but not least, the thesis analyses the development of the case law of the CJEU on the issue. The thesis discusses the principles of personality and territoriality in relation to the online environment and different perspectives on the grasp of this principle and the possibilities to locate legal actions on the Internet. The reader will be introduced to the case law of the CJEU, which over the years has dealt with the interpretation of each of the key institutes and their relevance in the online environment. However, the work also includes various divergent views of experts and theorists...

Matthew Armitage

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

Manuel Gómez

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.

Hugo García Larriva, Carla Cepeda Altamirano

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.

Cristina Poncibò

No abstract is available for this record.

Wulf A. Kaal

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.