Blockchain has been heralded by some as a potentially revolutionary technology, while others see it as a solution looking for a problem. In the field of law, particularly, novel technologies often collide with existing regulations, which may be too slow or rigid to adapt to the innovative functionalities explored, and blockchain is no exception to this. In this chapter, we take a look at blockchain’s promised benefits from the legal perspective in order to provide a general understanding on how the technology is seen to interact with three major fields of law. Firstly, with respect to contract law, we analyse, in particular, the implications blockchain technology may bring for smart contracts. Secondly, we deal with intellectual property law aspect, covering the potential benefits brought about by blockchain-based systems to holders – and users – of copyright, registered and unregistered trademarks and designs, as well as trade secrets. Thirdly, concerning personal data protection law, we focus on the contradictions between blockchain and the European General Data Protection Regulation – some merely apparent, while others unavoidable – and explore the ways in which the use of blockchain allows for, and even potentially enhances, the practical implementation of the principles of data protection by design and, more specifically, fairness by design.
Digitalization changes all kind of sectors of the economy—in particular, financial industry, which is probably one of the first to undergo fundamental changes. As money and financial transactions are immaterial, it is evident that financial industry has been one of the first economic sectors to be digitalized. Digitalization of the financial industry started already at the beginning of the 1980s, when large banking networks were introduced across the globe. With the rise of the Internet, online banking and all kinds of Internet-based services that allow a direct contact with clients and real-time transactions were established. The next step is now ahead, based upon the new technology of blockchain and on the use of artificial intelligence. It is obvious that the so-called fintech are already challenging the traditional financial industry; however, the notion of fintech remains opaque and is used to describe different phenomena. From the international private law perspective, it is of particular interest how traditional paradigms, such as location of a transaction (loci actus), can change. While contracts concluded by using fintechs will not raise specific choice-of-law problems as the principles of law applicable to contracts would not change, the situation is different for proprietary effects of transactions in securities. Even though securities were immaterialized long before the existence of fintechs or blockchain, the use of decentralized networks based on distributed ledger technology (DLT) raises new problems as to the assessment of the location of the transaction. The article discusses different approaches to solve the location problem, with specific regard of DLT. The issue discussed is embedded in a more general debate about the chances and limits to regulate a decentralized DLT; thus, conflict of laws for securities transactions is just a part of the overall problem. I will show that there are some important parallels to the intellectual property law that have been disregarded in the discussion so far. However, this approach also reveals some flaws, so that it will be the lex fori, in the end, that should govern the proprietary effects of transactions on a decentralized DLT network. Concerning the legal base of analysis, I have to concentrate—unfortunately—upon national law (in this case, German law) as European regulations such as the Rome Regulations do not deal with proprietary effects of securities transactions.
The present chapter will look at the possible application of smart contracts in the intellectual property arena in general, but it will specifically discuss mostly copyright solutions, although a few uses apply to different areas of protection. This presents a few challenges, at the time of writing many of the proposals that will be discussed have not yet been implemented, or are in a prototype level, and as such we may have to assume their viability based on nothing other than a few examples that have not been fully tested. Similarly, legal discussions about the blockchain and smart contracts tend to be surrounded by considerable hype, often fuelled by commercial interests, and it is often difficult to separate facts from sales pitches. This is why this work will try to take a more sceptical approach to the phenomenon.
Abstract Smart contracts are software codes based on the Blockchain technology which are involved in the field of information technology. The Blockchain smart contract is still in the contractual scope in nature, although its origin and automatic performance functions are different from existing contracts, but it can be identified as a typical unnamed contract. Therefore, at the legal level, a smart contract is a new form of contract that can automatically and automatically perform all or part of the contract. While discussing the technical aspects of smart contracts, we cannot ignore the relevant issues at the legal level. Smart contracts are developments and innovations in the form of traditional contracts. Smart contracts exist in electronic form and automatically fulfill contracts through software that is accurately encoded on the Blockchain. How to create smart contracts according to law and evaluate the legal effect of smart contracts are the main research issue of this paper.
The Blockchain technology provides a way to record transactions or any digital interaction that is designed to be secure, tamper-proof, transparent, highly resistant to outages, traceable and auditable. The Internet of Things (IoT) technology is able to link computing devices, mechanical and digital machines, objects, animals or people that are provided with unique identifiers (UIDs) and provides the ability to transfer data over a network without requiring human-to-human or human-to-computer interaction. These features encourage us to explore the combined application of IoT and Blockchain-based technology. In this paper, we propose a system architecture of blockchain and IoT based intellectual property protection system, which can process three types of intellectual property: 1) Patents, Copyrights, Trademarks etc.; 2) Industrial design, Trade dress, Craft works, Trade secrets etc.; and 3) Plant variety rights, Geographical indications etc. Using blockchain P2P network and IoT devices, the system can help us to establish a trusted, self-organized, open and ecological intellectual property protection system. To the best of our knowledge, this is the first work that applying blockchain technology and IoT technology on traditional intellectual property protection and trade ecosystem.
Elena Kirillova, Богдан Варвара Владимировна, Igor B. Lagutin, Evgeniy Dmitrievich Gorevoy
This article using critical analysis discusses the legal status of smart contracts, their features and characteristics, and the possibility of introducing this category into the legal field. The main goal of the study is to determine the legal status of smart contracts. The study concludes that a smart contract is a program code based on blockchain technology, which, by legal characteristics, is a legally significant message recorded in a language (artificial language) and sealed with an electronic digital signature of each of the parties (or certified with a special key). It is proved that the multilateral interactions implemented through smart contracts can reduce the costs of operations and control them, increase the speed of operations and reduce the risks associated with dishonest actions of the parties, minimize or completely exclude intermediaries from the transaction; therefore, legislation should provide for the possibility of using smart contracts along with existing contracts.
The author examines the impact of blockchain and smart contracts on the legal profession. After all, the lawyer is entitled to draft smart contracts. For a few years now, in information technology, the lawyer has promoted the writing of so-called agile contracts in connection with projects run by “agileȁ methods. However, the smart contract, whether described as a contract or simple algorithm, challenges the lawyer by its philosophy (“code is law”) and by its writers who are no longer jurists but developers. He discusses whether this technology will be “killing off” the legal profession. Before over-hastily assuming this apocalyptic demise of the lawyer, the author suggests to think about the role and the status of the lawyer in his general mission of advice and defense, and considers whether information technology can be a substitute for the lawyer or simply a new tool that could be used.
Larry A. DiMatteo, Michel Cannarsa, Cristina Poncibò
Smart contracts have been a topic of interest to lawyers for some time now. The question regularly arises as to whether a smart contract can also constitute a valid contract on its own. This article examines this question, focusing on the basic principles of Swiss contract law.
The technology that makes smart contracts possible was developed with a view to enabling transactions to be made end-to-end without the intervention of third parties, intermediaries, adjudicators or courts. In this sense, it achieves in principle complete freedom of interaction. Whether this is the same thing as freedom of contract, however, remains to be seen. It is not yet clear, for example, which smart contracts will be legally enforceable, either because the parties do not want them to be, and/or because the courts do not recognise them as being so. What seems inevitable at this stage in the development of smart contract technology is that conventional contract law in its current form is unlikely to be the most effective way of adjudicating smart contract disputes. One reason for this is that securing performance will be far less of a problem under smart contracts than it is in relation to conventional contracts: the automated nature of the former means that actions are far more likely to be executed than those promised in the traditional way, albeit that their results might not accord with the parties’ expectations. Any issues are therefore far more likely to arise (or at least to be brought to a court’s attention) after a transaction has occurred. Automated execution means that parties are free to determine the contents of their agreements, and that machines will abide by those agreed instructions. The way in which smart contracts operate, therefore, means that any adjudication of them is likely to need to emphasise restorative rather than enforcement remedies. The extent to which the law chooses to do this will effectively determine how free smart technology users are to make legally recognised contracts.
The article investigates by etymological and legal analysis the origin of the institution of obligations and risk management, for centuries in the process of formation of Russian law.
Os smarts contracts são, em termos bastante gerais, protocolos informáticos que permitem que um dispositivo execute as prestações de um contrato de forma autônoma, logo, sem a necessidade de intervenção humana. A substituição da ação humana por um processo – conjunto de protocolos – que viabiliza (a) a automação de operações, (b) a materialização automática das prestações nas transações e (c) a utilização de outras tecnologias, as quais permitem a verificação do clausulado e da identidade dos sujeitos vinculados à transação resulta em elevada economia de custos. Ademais, as expectativas das partes para a satisfação de seus interesses negociais, tal como estabelecido no contrato, acabam sendo amplamente protegidas. Rapidez, previsibilidade e automação permeiam o exercício da autonomia privada, facilitando a efetiva autotutela. Não obstante os evidentes benefícios, tal figura apresenta limitações e desvantagens, trazendo consigo possíveis problemas. Este trabalho explora brevemente o fenômeno dos smart contracts, reflete sobre seu ecossistema particular e, a seguir, aborda importantes questões jurídicas que acompanham os smart contracts.
In recent decades land registration systems operating in Europe and worldwide have been subject to modernisation processes consisting in implementation of information and communication technologies. Such reforms have gradually led to facilitating access to land information, improving effectiveness of land registration proceedings and even introducing possibilities to dispose of the ownership of land electronically by developing electronic conveyancing mechanisms. Another innovative concept much discussed nowadays is the application of blockchain technology in the land registration sector. This solution is currently being tested in a number of countries.Distributed ledger technology underlying blockchain is expected to revolutionise land registration by offering a secure architecture to store land transactions with the use of cryptographic protocol. This shall bring advantages of increased trust and processing efficiency as well as reduction of costs. However, the above idea raises concerns given that, under the assumptions of the “original” blockchain model, transactions are irreversible and are carried out without intermediaries, which means the lack of any external control and independent verification of the transactions to be recorded.The article examines potential benefits and risks of automatisation of land transactions as well as practical experiences of selected countries in implementing blockchain in the area of land registration. On this basis, an assessment will be made as to whether blockchain-based registration could indeed replace the existing methodology of registering rights to land.
Among substantial advancements challenging contemporary contract law special attention is given to autonomous, cryptographic solutions based on decentralised infrastructure provided by blockchain technology, intended to execute transactions automatically, designated as smart contracts. The need for comprehensive research on legal implications of practical implementation of this technological innovation is triggered particularly by the prognostications declaring it a valid alternative to hitherto contract law framework that is expected to be ultimately replaced by algorithmic mechanisms underpinning smart contracts.A relevant assessment of the impact smart contracts are presumed to have on the contract law domain requires a thorough analysis of their juridical status. The specificity of the category of smart contracts raises doubts whether they comply with the definition criteria inherent to contract law terminology. Additionally, it is of material importance to determine the function smart contracts can perform in the sphere of contractual practice and to confront it with the role and axiology of contract law.The article aims at analysing the peculiarities of smart contracts from the perspective of the Polish private law system with account being also taken of current development tendencies concerning the concept of contract.
The paper is devoted to the legal regulation of smart contracts in French law. The question of the admissibility of the use of smart contracts in economic relations is considered. Particular attention is given to the French legal doctrine in the issue of formulating the definition of “smart contract” and identifying its characteristic features, the various points of view of French legal scholars are compared. Examples of the most effective use of a smart contract in economic relations are given. The problems of applying contractual legal obligations and obligations of French law to smart contracts are considered. The importance of the oracle for the implementation of the smart contract and the features of its legal status under French law are disclosed.
Blockchain technology is believed to be a highly secured solution for it is a decentralized ledger guarded by cryptographic techniques. However, the recent successful ‘51% Attack’ [1] on Ethereum Blockchain network, raised concerns regarding the trustworthiness of this technology. This paper addresses the causes and solutions to that attack. Private Transactions like the techniques implemented in Parity Ethereum and Quorum are introduced. Proof of Stack (POS) is another approach using economic incentives instead of intensive computations to guard against attacks while reducing power consumed. They are considered mitigation to the ‘51% Attack’. The use of Second Factor Authentication at the Smart Contract level is also addressed.
Within the framework of this article, the authors carry out the study of the design of the smart contract in the context of jurisprudence and technical sciences. The paper analyzes the legal nature of the smart contract and the issues concerning the scope of application (in relation to distributed ledger technology). The authors conclude that the category of “smart contract” can be defined in technical and legal aspects. In foreign literature, there are two categories: a legal smart contract and a smart contract code (or smart contract). The smart contract as a technical phenomenon represents a computer code that allows automated fulfillment of obligations. From legal point of view, the approaches to the definition of the smart contract depend primarily on the fact that the authors rely on the possibility of using smart contracts only within the framework of distributed ledger technology or other information technologies. At the same time, the majority of authors share the view that the smart contract exists exclusively in relation to the technology of distributed ledgers, namely, the blockchain. The article proposes to define the smart contract as a standard (special) contractual design — a contract concluded by electronic or other technical means, under the terms of which performance of the obligation is carried out without directed explicit additional expression of will (under Part 2 of Article 309 of the Civil Code of the Russian Federation). The article states that the smart contract cannot be qualified as an independent way of ensuring the performance of obligations. Such qualification is possible only if the functional approach to understanding security is applied. The paper examines the main fields of application of smart contracts and possible risks of their application (in terms of statement of terms of agreements in relation to a programming language; in respect of necessity of compliance with such fundamental principles of civil law as legality, fairness, protection of the weak; the need for communication with public authorities and notaries, as well as risks of using smart contracts in relations involving the participation of consumers). A separate set of questions concerns the protection of the rights infringed due to the use of smart contracts.