Smart contracts can be defined as computer codes which are run digitally by computer programs to utilise the negotiation, formation, and performance of an automated and irreversible agreement between the contracting parties. Smart contracts are distinguished from other forms of contracts in terms of the way they are concluded which is through Blockchain Technology. In contrast to conventional contracts established through speech, written words or actions, smart contracts are algorithmic and self-executing agreements. In this article, smart contracts will be discussed from the perspective of their general rules and features and the Iraqi law. This study analyses the formation mechanisms of the general principles in Iraqi law governing the contracts and how these mechanisms can be applied to the new technological framework of smart contracts. In addition, integrating smart contracts into the current legal provisions in Iraq is examined.
Technological advances pave the way for new legal concepts with increasingly high importance. Contracts are the most conducted legal transactions in daily life. Thus, technological advances have a great and fast effect in field of Contract Law. Concept of smart contract is one of the latest developments of Contract Law that is introduced by technological advances. Smart contract is not a type of contract, contrary to the impression based on term, but it is a new concept bringing important solutions to legal enforcement of contractual obligations. In our article, a definition of smart contract concept is given at first, then basic information about technical infrastructure of smart contracts shall be discussed briefly, while transactions carried out in process of smart contracts along with advantages and disadvantages brought by smart contracts are analyzed. Furthermore, legal advantages that will be brought by smart contracts and possible legal problems are also discussed.
A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. (If the forum selection is exclusive, then that party also promises not to initiate litigation anywhere other than in the chosen forum.) The use of such a clause in a particular case may therefore raise a set of questions under contract law: Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, however, a forum selection clause affects not only the private rights and obligations of the parties, but something of more public concern: the jurisdiction of a court to resolve a dispute. The enforcement of such a clause therefore raises an additional set of questions under procedural law. For instance, if the parties designate a court in a forum that is otherwise unconnected to the dispute, must (or should) that court hear a case initiated there? If one of the parties initiates litigation in a non-designated forum that is connected to the dispute, must (or should) that court decline to hear the case? This Report analyzes the approach to these questions in the United States.1 Part I provides a brief background on the general attitude toward forum selection clauses. Part II surveys current state law on their use, in consumer as well as commercial contracts. Part III addresses the interpretation of forum selection clauses as either permissive or exclusive. Part IV analyzes the effect of permissive clauses in state and federal courts. Finally, Part V turns to choice of law problems, particularly as they arise in the course of litigation in federal courts. Historically, forum selection clauses were viewed as contrary to public policy and therefore invalid.2 The most frequently invoked justification for this rule, relevant only in connection with exclusive clauses, was that parties should not be able to deprive a court of jurisdiction it would otherwise have over a dispute.3 However, other explanations for the traditional approach—relevant in connection with permissive as well as exclusive clauses—appear in the case law as well. Some courts rejected forum selection clauses out of suspicion that the parties’ intent in selecting a particular forum was to circumvent otherwise applicable substantive policies. Others worried that permitting parties to choose their forum would “bring the administration of justice into disrepute” by highlighting considerations such as the relative intelligence or impartiality of particular judges.4 Overall, the sense was that “[t]he jurisdiction of our courts is established by law, and is not to be diminished, any more than it is to be increased, by the convention of the parties.”5 Over time, and given increasing recognition of the need for certainty and predictability in interstate and international commerce, adherence to the traditional view diminished. This shift manifested itself in the case law6 and elsewhere. For example, in 1968, the National Conference of Commissioners on Uniform State Laws adopted a Model Choice of Forum Act7 based on the Hague Conference’s 1964 Convention on the Choice of Court. Although the model law gave courts considerably more discretion than the Convention did in enforcing forum selection clauses, its starting point was that the use of such clauses was desirable.8 And the Restatement (Second) of Conflict of Laws, adopted in 1971, included a section stating that a forum selection clause will be given effect “unless it is unfair or unreasonable.9 The real turning point in U.S. doctrine was the Supreme Court’s 1972 decision in The Bremen v. Zapata Off-Shore, Co.10 The case involved a forum selection clause included in a contract for towage negotiated by the U.S. owner of a drilling rig and a German towing company. The agreement designated the London Court of Justice as the exclusive forum for litigation; however, when its rig was damaged, the U.S. company brought suit in the United States District Court in Tampa, Florida. The to or the on the of the forum selection that such were the court this and its decision was The U.S. Supreme Court then and that the forum selection clause was to a of the that as as I to of the Court’s that have frequently in and the rejected the that contractual of jurisdiction and venue were as against public Court did that the of a particular forum selection clause be on the of in contract such as or or of by the the a of of exclusive forum selection as a general the parties that any litigation would in the designated any other court should to hear the the on a court other than the designated court to an otherwise and exclusive forum selection if enforcement would be under the the Court that the forum would be so that the would be of in or if enforcement would a public policy of the forum in suit was The Bremen decision have effect for it involved an international its of a of the Court to the of international the have to the international the case involved the of and the decision was therefore on federal courts of jurisdiction on state the Bremen these courts jurisdiction in adopted the Bremen it in contracts. State courts to the Bremen in as well as international the decision the U.S. approach to forum selection clauses. The of the Bremen the of forum selection clauses only to exclusive forum selection clauses, and so this Report only in The of the Court’s to the general of private as to forum to permissive clauses. The Part addresses the of such under current law. the of U.S. forum selection clauses, permissive and exclusive, viewed with A have the of such based on the Model Choice of Forum most however, the and of forum selection clauses by law. that law the Bremen it the of that case into that the for example, courts have adopted a that analyzes the forum selection clause was to the it should be as exclusive or it the parties and the in and the in of enforcement by a that it is under the or for such as or Some have also adopted to (or litigation contracts. 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However, forum selection clauses, permissive clauses, may a as in that the parties may a forum that is not otherwise connected with the such the the of the parties also the effect of jurisdiction on a court that would not otherwise have Part that Part turns to the effect of permissive forum selection clauses on the U.S. courts have the discretion to decline jurisdiction on the that litigation in forum would be more or on this may be by the or initiated by the court The to be not only the of the parties, but a of other and as well. effect of a permissive forum selection is to the to the of venue in the on the that court would have more the is the court will the parties’ forum selection clause in to decline of its The of jurisdiction over the to by the United States state and federal courts have that the of jurisdiction and an and therefore be by a a as a for the of jurisdiction over a The traditional rule, however, was that be given only the of this courts to by Over time, this and courts to such waivers, in the form of forum selection clauses, as this is with to it is to as the and waiver of with this view of the jurisdictional as a courts that jurisdiction on the of is when the forum is otherwise unconnected with the a courts have that the designated forum a to the but these to be The of a forum selection effect on jurisdiction a as well. 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With widespread smart contract implementation on the horizon, there is much conversation about how to regulate this new technology. Noting the failure of contract law to address the inequities of standardised contracts in the digital environment can help prevent them from being codified further into smart contracts.
The advent of smart contracts presents several problems for the traditional law of contract. One of the most pressing issues is how the forensic process of interpretation needs to change in order to accommodate contracts written in computer code. Not only is the language of smart contracts unlike the human languages with which courts are used to dealing, but its logical architecture also differs. This means that enlisting the services of an expert to provide a literal translation for a judge to interpret is unlikely to be helpful. The development of a “reasonable coder” test would seem to be a viable means of proceeding. The self-executing nature of smart contracts means that, in the case of executory agreements, rectification may well become a more widely-used remedy.
A new legal field is emerging around blockchain platforms and automated transactions. Understanding the relationships between law, legal enforcement, and these technological systems has become critical for scaling blockchain applications. Because ‘smart contracts’ do not themselves constitute agreements, the first necessary ‘legal’ development for transacting with these technologies involves linking computational transactions to natural language contracts. Various groups have accordingly begun building libraries of machine readable transaction modules that correspond to natural language contracting elements. In doing so, they are creating the building blocks for ever more complex transactions that will ultimately define the entire envelope of computational legal conduct in these environments, and likely standardise the field. However, also critical to emerging blockchain ‘legalities’, is the capacity for dispute resolution and legal enforcement. Beyond the performance of parties, or the quality of goods and services transacted, new mechanisms are also needed to address the performance of the computational transaction systems themselves. These are necessary to address the reality that smart contracts cannot be forced to perform actions beyond the parameters of their coding, even by a judicial order. Legal tools, both technological and institutional, are thus being developed to ‘soften’ the effects of self-executing transactions. In this article we treat these developments as law-making practices that are constitutive of an emerging legal field. Legal engineering exercises of this kind are not novel, and by drawing on historic examples from the common law and international arbitration, we gain insights into the competitive dynamics likely to be shaping legal engagements on the blockchain.
Die Autoren gehen der Frage nach, ob Kryptowährungen als Sachen im Sinne des ZGB aufgefasst und daran namentlich Eigentumsrechte begründet werden können. Dabei werden zunächst technische Grundlagen der sog. Blockchain-Technologie und der drei nach Markkapitalisierung grössten Kryptowährungen Bitcoin (BTC), Ethereum (Ether, ETH) und Ripple (XRP) dargestellt. Sodann wird untersucht, ob diese Kryptowährungen die Eigenschaften erfüllen, welche für die Qualifikation eines Objektes als Sache im Sinne des ZGB vorliegen müssen, und welches die Folgen einer solchen Qualifikation sind. Im Sinne einer modernen Auslegung des Sachbegriffs schliessen sich die Autoren der Auffassung an, wonach Kryptowährungen grundsätzlich als Sache und damit als Gegenstand des Eigentums zu behandeln sind.
The East Asian cryptocurrency market has burgeoned in the past few years, especially in Japan, China, and South Korea. This means that more and more people are involved in dealings over this novel form of ‘economic value’. But, what exactly are people selling and buying? Traditionally, things can be divided into moveables (i.e., tangible things such as books, physical money such as coins or notes, or intangible things such as debts etc.) and immoveables (i.e., land). While the rules pertaining to transactions in such traditional things are well recognised, the same cannot be said of cryptocurrencies. The uncertainty of their characterisation renders it difficult to be confident in transaction finality as a matter of law and also potentially exacerbates dispute resolution. Two issues merit exploration: Is a cryptocurrency a thing as such? If so, can it be the object of a property right? Many other relevant legal issues concerning cryptocurrencies (i.e., how they are protected by law, the legal rules relating to their transfer, or systematic deployment etc.) would hinge upon the above two fundamental issues. Their characterisation may also be significant for conflict of laws characterisation purposes as many of the essential infrastructure for the trading of cryptocurrencies (e.g., mining and exchanges) are located in East Asia. This Chapter aims to survey the major East Asian civil law jurisdictions (i.e. Japan, China, and South Korea) to ascertain how they may address these questions in the light of their respective laws.
The Smart Contract Templates project supports legally enforceable smart contracts, using operational parameters to connect legal agreements to standardised code. The standardised code is derived from legal documentation and performs some or all of the provisions of that contract. For financial contracts such as derivatives agreements, the legal documentation may be extensive, and the standardised code to perform the contract may be substantial. An important issue is how to validate whether the smart contract code will correctly perform the provisions of the legal contract. This requires an understanding of the semantics of legal text and is an important step towards supporting industry adoption of legally enforceable high-value smart contracts.
Since Bitcoin appeared in 2009, the digital currency has been hailed as an Internet marvel and decried as the preferred transaction vehicle for all manner of criminals. It has left nearly everyone without a computer science degree confused: Just how do you “mine” money from ones and zeros?\nThe answer lies in a technology called blockchain, which can be used for much more than Bitcoin. A general-purpose tool for creating secure, decentralized, peer-to-peer applications, blockchain technology has been compared to the Internet itself in both form and impact. Some have said this tool may change society as we know it. Blockchains are being used to create autonomous computer programs known as “smart contracts,” to expedite payments, to create financial instruments, to organize the exchange of data and information, and to facilitate interactions between humans and machines. The technology could affect governance itself, by supporting new organizational structures that promote more democratic and participatory decision making.\nPrimavera De Filippi and Aaron Wright acknowledge this potential and urge the law to catch up. That is because disintermediation—a blockchain’s greatest asset—subverts critical regulation. By cutting out middlemen, such as large online operators and multinational corporations, blockchains run the risk of undermining the capacity of governmental authorities to supervise activities in banking, commerce, law, and other vital areas. De Filippi and Wright welcome the new possibilities inherent in blockchains. But as Blockchain and the Law makes clear, the technology cannot be harnessed productively without new rules and new approaches to legal thinking.
espanolApenas inmersos en la voragine disruptiva de la tecnologia «Blockchain» o cadena de bloques, sin estar desarrollada ni explicada suficientemente aun, y de la adaptacion de los parametros legales clasicos a la inteligencia artificial, nos vemos obligados a reestructurar digitalmente nuestros instituciones juridicas. De innegable actualidad en un ambito ya se por si innovador, como es el comercio electronico, nos encontramos con los llamados «smart contracts», fruto de un desarrollo tecnologico sin limites que impulsa el Derecho de la contratacion y cuya simple naturaleza juridica ya suscita arduos debates. Dado que el uso de esta figura en el ambito de la contratacion electronica comercial se mueve actualmente en la incertidumbre juridica, nuestra intencion es reflexionar acerca de la trascendencia juridica que esta revolucionaria tecnologia «blockchain», sobre la que se sustentan los que llamaremos «smart legal contracts», nos podria brindar por el incuestionable potencial de transformacion que encierra. Para ello analizamos desde su naturaleza, hasta las caracteristicas que presentan y las peculiaridades de su formacion, para terminar sopesando tanto las ventajas como la problematica que su funcionamiento plantearia en la practica comercial electronica. EnglishRecently immersed in the disruptive maelstrom of Blockchain technology and the adaptation of the classic legal parameters to artificial intelligence, we are currently forced to digitally restructure our legal institutions. Of undeniable topicality in an field that is already innovative, such as the electronic commerce, we find the so called smart contracts as result of an unlimited technological development that drives the contracting law and whose simple legal nature already arouses arduous discussions. Given that the use of the smart contracts in the field of commercial electronic contracting is currently legally uncertain, our goal is to examine the legal significance that this revolutionary blockchain technology, on which are based what we will call smart legal contracts, might provide for the unquestionable potential for transformation that it entails. With this aim, we analyze its nature, characteristics and peculiarities to end up weighing both the advantages and issues that their functioning raises in the electronic commercial practice.
이더리움(Etherium)은 이른바 ‘스마트 계약(Smart Contract)’이라는 이름으로 블록체인 기술(Blockchain technology)을 이용하여 체결 뿐 아니라 이행까지도 고도로 자동화된 계약의 개념을 제시한 바 있다. 이 글은 이와 같은 스마트계약의 개념과 특징을 살펴보면서, 블록체인 기술이 계약법적으로 적용되는 경우 어떠한 법적 쟁점이 있는지에 관하여 살피고 있다.
Blockchain-based smart contracts represent a shift towards an automated world. While their immutable and self-executing nature present numerous economic benefits, these characteristics give rise to issues. One of these issues is that the burden of issuing proceedings changes from a party looking to enforce the agreement to a party who wishes to relieve themselves of an automatic enforcement mechanism. The ‘practical burden’, as the paper terms it, could potentially be most problematic in a consumer context, which is characterised by a significant imbalance between contracting parties. The paper assesses consumer law in New Zealand to determine whether this issue will arise under the current law. The paper concludes that New Zealand’s current consumer law is practically robust, however it recommends some practical measures that can be taken by the Commerce Commission in order to prepare for smart contracts as a dominant method of transferring property.