Blockchain Papers

Jake Goldenfein, Andrea M. Leiter

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.

Gauthier Vannieuwenhuyse

New technologies such as Big Data, blockchain, machine learning, and text-mining have made it to the legal world, simplifying all phases of the dispute resolution process. Arbitration and these new technologies share a mutually beneficial relationship. On the one hand, new technologies will improve efficiency, cut costs, promote the expansion of arbitration into new segments of the market, and improve outcomes for clients. On the other hand, the proliferation of new technologies will inevitably generate disputes that arbitration is best-suited to resolve. For example, although self-execution limits certain litigation risks concerning the performance of smart contracts, conflicts regarding their definition, interpretation, and general framework are likely to arise. The delocalized nature of the arbitral regime, the flexibility of proceedings, and the straightforward enforcement of awards are key features that make arbitration the optimal dispute resolution mechanism for new technology disputes. New technologies can thus reinforce arbitral proceedings, and arbitration can provide insurance to these emerging practices – these reciprocal benefits should be exploited.

김제완

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.

Laurence Ingle

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.

Michael Bacina

Lawyers in practice today live in a world of ongoing disruption. As automation, artificial intelligence and blockchain technology assists in reducing the costs of business transactions and increases the reliability of record keeping, the adoption of smart contracts is an opportunity for lawyers to help their clients improve efficiency and to reduce the scope for disputes, and a challenge for lawyers who do not stay abreast of this area.

Philippa Ryan

IntroductionStewart Macaulay’s seminal 1963 article “Non-Contractual Relations in Business” explored why merchants and manufacturers often fail to plan their commercial relationships and why they seldom resort to legal sanctions to settle disputes. Macaulay found that, in many business exchanges, detailed planning and legal sanctions play only a small role. His tentative

Jeremy Barnett, Philip Treleaven

Legal Services industries are entering a period of major disruption caused by new legal technologies (LawTech), such as artificial intelligence (AI), Internet of Things (IoT) and Blockchain. An area already undergoing major innovation is alternative dispute resolution (Alternative Dispute Resolution (2017) Wikipedia, https://en.wikipedia.org/wiki/Alternative_dispute_resolution), especially automated online dispute resolution (Online Dispute Resolution (2017) Wikipedia, https://en.wikipedia.org/wiki/Online_dispute_resolution; Katsh, E. and Rifkin, J. (2001) Online Dispute Resolution: Resolving Conflicts in Cyberspace. Jossey-Bass Wiley, New Jersey). In terms of LawTech, we broadly divide online dispute resolution into (a) Consumer ODR—uses technology to facilitate the resolution of disputes between ecommerce parties, typically online suppliers and consumers; (b) Judicial ODR—covers any means of settling ‘ordinary’ disputes where there is a hearing (using technology) but outside of the courtroom, such as divorce or personal injury cases; and what we refer to as (c) Corporate ODR—the use of technology to manage the resolution of any contractual disputes that may emerge from major multi-partner projects or financial transactions. This paper focuses on ODR and specifically the future use of automating anticipatory Corporate dispute resolution using AI and blockchain technologies. The paper describes the legal sector, and how it is being radically transformed by computer science.

Michael Bacina, Katrine Narkiewicz

Lawyers today live in a world of ongoing disruption. As automation, artificial intelligence and block-chain technology assists in reducing the costs of business transactions and increases the reliability of record keeping, the adoption of smart contracts is an opportunity for lawyers to help their clients improve efficiency and reduce the scope for disputes, and a challenge for lawyers who do not stay abreast of this area.

Daniel Hellwig, Goran Karlic, Arnd Huchzermeier

This chapter looks beyond the novelty of self-executing ‘smart contracts’ in blockchain networks and explores developments against the background fact that commercial parties have, for centuries, used documentary credit to simulate autonomous performance. Blockchain-based smart contracts and documentary credit share three core functionalities which are essential to any effective autonomous performance, analogue or digital—they both (i) act through internalized media of exchange; (ii) operate as closed systems; and (iii) provide means of securing sufficient resources to guarantee contractual performance. Using these three functionalities as a framework, this chapter conducts a comparative analysis of mechanisms for effecting autonomous contractual performance in a commercial setting. From this comparison, a few hypotheses are drawn regarding the potential areas where smart contract technology is more likely to find fruitful application. In particular, the chapter considers potential limitations to applying smart contracts to scenarios beyond digital asset transfers, how dispute resolution mechanisms should be designed to complement (rather impair) the autonomous nature of contractual performance under smart contracts, and potential capital cost implications which might arise in some cases when parties seek to replace human intermediaries with smart contracts.

J. Maria Glover

This year marks the fiftieth anniversary of the adoption of Federal Rule of Civil Procedure Rule 23, and with it, the advent of the modern class action. As the fiftieth anniversary approached, many scholars, including myself, said that class actions were dead, dying, or headed for a zombie state. Many of the Supreme Court’s recent class action cases all but confirmed that view. In just the last six years, the Supreme Court ratcheted up the requirements for class certification under Rule 23 in Wal-Mart Stores v. Dukes and Comcast v. Behrend, increasing the cost and difficulty of obtaining certification. And, in a series of cases, the Court permitted the use of class action prohibitions in arbitration contracts, thus eliminating a swath of class actions and, often, the underlying claims themselves. The Court’s language in these cases also tracked stock arguments against the class action, leaving the distinct impression that the Roberts Court was on a mission to diminish or destroy the class action procedure. But a funny thing happened on the way to the funeral: just as the obituaries for the class action were being written, the Supreme Court issued a series of decisions that breathed new life into it. In Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II) and Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, the Court reaffirmed the fraud-on-the-market theory, a critical tool in securities class actions. In Tyson Foods v. Bouaphakeo, the Court vindicated the use of statistical proof to satisfy Rule 23 requirements, distancing itself from strong suggestions in prior cases that individualized proof requirements would doom class certification. And the language in these cases tracked stock arguments in favor of class actions. To paraphrase Mark Twain, the rumors of the class action’s death now seem greatly exaggerated. But the Court’s class action decisions raise a new and perhaps more vexing question. If the Court is not fully intent on destroying the class action, what drives its seemingly disparate decisions? Do they reflect an anti–class action agenda losing steam, as Professor Coffee has suggested? Was the unbridled anti–class action agenda an illusion to begin with? Or is there a deeper explanation for these decisions? Part I of this Article demonstrates that the Court’s “pro–class action” decisions cannot be easily reconciled with their “anti–class action” counterparts through traditional means—neither through straightforward applications of Rule 23, nor precedent, nor particular case facts. But Part II posits that the Court’s seemingly disparate class action cases can still be rationalized. To do so, however, one must look past the procedural veneer and consider the underlying substantive rules and remedial regimes at stake. Indeed, a key question presented in each case—notwithstanding what appears in the petitions for writs of certiorari—is whether the Court will embrace an interpretation of a substantive rule that has the effect of facilitating the availability of the class action. The Court’s ultimate answer reflects a composite judgment about the substantive rule at issue and its implications for the availability of the class action device. Accordingly, to the extent one insists that procedural rules are, or ought to be, transsubstantive—that, “in form and manner of application, [they do] not vary from one substantive context to the next”—the Court’s class action jurisprudence might actually be deemed “non-transsubstantive.” This Article’s thesis has numerous implications—for separation of powers, judicial lawmaking power, federalism, the role of precedent, notions of transsubstantive procedure, procedural theory, and the nature and legitimacy of the judicial role, among others. The limitations of the Article format permit consideration in Part III of just two: First, the implications for the nature and scope of the federal courts’ procedural and substantive lawmaking powers under the Rules Enabling Act [hereinafter Enabling Act]. And second, related implications for the nature and legitimacy of the judicial role in “procedural” opinions.

Riikka Koulu

By Riikka Koulu. As cross-border online transactions increase the issue of cross-border dispute resolution and enforcement becomes more and more topical. Disputes arising from e-commerce are seldom taken into the public courts and therefore online dispute resolution (ODR) is becoming a mainstream solution for resolving them. Simultaneously, different applications and possibilities of blockchain technologies such as cryptocurrencies have caught the attention of both computer scientists and legal scholars, increasingly gaining momentum. However, the potential of blockchains reach further than their use as a currency: they can be used for the decentralised execution of programmable contracts known as smart contracts, completely without the need for intermediaries like e-commerce sites, credit card companies or courts. These possibilities have not previously been discussed in relation to dispute resolution. This article provides an introduction to this new technological possibility by examining self-executing smart contracts that utilise novel blockchain technologies. To demonstrate the logic behind smart contracts more concretely, a weather bet (i.e. a bet on what the weather is going to be in a given location) is translated into a programmable smart contract and then discussed in lines of code with further explanations. In addition to this, the author suggests that smart contracts could also be employed for the purposes of dispute resolution, which might provide a solution for the problem of enforcing ODR decisions. Instead of normative analysis, the article provides an introductory analysis of the legal implications that the blockchain technology has outside its application as virtual currency.

María Claudia Solarte-Vásquez, Natalia Järv, Katrin Nyman-Metcalf

No abstract is available for this record.

Pietro Ortolani

The enforcement of outcomes in online dispute resolution (ODR) is a delicate problem. Since disputes arising out of e-commerce transactions are typically low in value, the traditional channels of coercive enforcement are often not a viable option. The article argues that the Bitcoin system can be used as a source of inspiration to devise new models of self-enforcement. The article describes the legal framework of ODR and argues that the goal of self-enforcement can be attained through the use of technology. It then describes the relevant features of the Bitcoin system, underlining its potential as a new forum for the expression of private autonomy. It then investigates the features of Bitcoin adjudication, before arguing that Bitcoin must be regarded as an original and self-contained system of dispute resolution, whose characteristics can be used to theorise new models of self-enforcement. Next, it compares four alternative models of self-enforcement, two of which take Bitcoin adjudication as an example. Finally, it puts forth recommendations for all actors involved in the implementation of self-enforcing ODR mechanisms and argues that different models should be left free to compete.

尹智炫

The Supreme Court (hereinafter the Court) decision 93 nu 13162 (rendered on April 15, 1994) is about a case where a corporation (hereinafter the Corporation) established in Hong Kong moved its office to the Netherlands. In this decision, however, the Court decided that the Corporation was not a resident in the Netherlands as defined under the Korea - Netherlands Tax Treaty (hereinafter the Treaty) on grounds that its of effective was not located in the Netherlands. This decision is one of the rare cases where the Court actually dealt with interpretation of tax and probably the first and only case thus far where the Court issued an opinion on a transaction that could be called treaty shopping. In addition, the Court imposed on the taxpayer the burden of proof as to its eligibility to benefits, which is an exception to the general rule that the burden of proof in a tax litigation is in principle on the tax authorities, and ruled that, in this case, the appellant did not sufficiently fulfill its burden of proof. In the opinion, this decision accurately confirmed one of the basic principles regarding the interpretation of tax treaties, that the provisions of the Dutch domestic tax law is the controlling criteria as to the residence requirement which is the very first test for anyone to be eligible for benefits. Accordingly, the Court stated that the Dutch domestic tax law consider any corporation with its of effective as being resided in the Netherlands. The Court then interpreted the term place of effective management as the where its substantial business operation is conducted and its decisions are made. However, it was erroneous for the Court to raise such irrelevant facts that the Corporation had no fixed office or employee, or that the amount of the directors' fees were very small to support its decision. Nevertheless, we can easily understand that it would have been difficult for the Court to decide otherwise in this case, where the Dutch Ministry of Finance had never replied to the inquiry made by the Korean National Tax Service as to whether the Corporation was indeed a Dutch resident. As to the issue of burden of proof, it also seems plausible to put it on the side of taxpayer when benefits are at stake, because here it is clear that the relevant evidences are usually under the control of the taxpayers rather than the tax authorities. However, we should note that it may be too harsh a conclusion to put the obligation to pay the tax on the withholding agent when it had no means to easily identify whether it had any such obligation at the moment of payment and when the transaction has already been closed and it has fulfilled its contractual obligation to make the payment long before the tax assessment.

Frédéric Bachand

This article concerns the ascertainment by judges of normative facts that emanate from within foreign legal orders and must be taken into consideration in the interpretation of domestic rules. The author proposes an analytical approach which is based on three ideas. First, judges must remain in control of the process aimed at ascertaining such facts. Because the interpretation of domestic rules is at stake, they cannot remain passive and rule solely on the basis of the information adduced by the parties, as they normally do while ascertaining the contents of foreign rules under a classic conflict of laws scenario. Second, foreign normative facts are often reasonably disputable, and when that is the case the parties must be afforded the opportunity to comment on whatever information the court intends to rely on while ascertaining the contents of such facts. Finally, the assistance of experts may be necessary in some cases, but full-fledged party-appointed expert testimony will rarely be a cost-effective option. Judges and parties should consider alternative options, such as the testimony of a court-appointed expert or written statements provided by party-appointed experts.

Mark P. Scheer, John E. Zehnder

Probably not, if the motion is supported by a showing of the categories of witnesses not subject to process and the problems of inconvenience IN CLASSIC forum non conveniens cases, plaintiffs file actions in forums in which they are not residents, where most--if not all--of the events and giving rise to the action did not occur, and (it's not surprising) where the bulk of the evidence relevant to the case is not located. The typical motive is the opportunity to win a damages award that would be unavailable in forums where the action logically should have been brought. Jurisdiction often is based on the defendant's residence in the forum where the case is filed or the fact that at least some of the pertinent events occurred there. While a motion to dismiss under the doctrine of forum non conveniens requires a court to examine and balance a number of different one factor--the availability of compulsory process for the attendance of unwilling witnesses--may require the defendant to do the impossible. That impossibility is obtaining the cooperation of an unwilling witness to prove that the witness is unwilling to participate voluntarily in litigation in a forum where the witness is not subject to compulsory process. WHAT IS IT? The doctrine of forum non conveniens vests a trial court with discretionary power to decline jurisdiction of a matter when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum. When the court is asked to decide whether to dismiss an action for forum non conveniens, it engages in a two-step process. First, it must determine that an alternative forum exists. Second, it must weigh and balance the and interests. A. Adequate Alternative Forum An alternative forum will be held inadequate only in those rare circumstances where it is so clearly ... unsatisfactory that it is no remedy at all, the U.S. Supreme Court declared in Piper Aircraft Co. v. Reyno.(1) The substantive law of the foreign forum is presumed adequate unless the plaintiff makes some showing to the contrary or it is plainly obvious to the court that the plaintiff is highly unlikely to obtain basic justice in the foreign forum.(2) B. Private and Public Interests Once it is established that an alternative forum exists, the next step is to weigh and balance the and interest factors at stake. In Gulf Oil Corp. v. Gilbert,(3) the U.S. Supreme Court enumerated two sets of factors. The first set, called the private interest factors, relates to the convenience of the litigants and includes the following: * The relative ease of access to sources of proof; * The availability of compulsory process for attendance of unwilling witnesses; * The cost of obtaining attendance of willing witnesses; * The possibility of viewing the premises, if such viewing is appropriate to the action; and * All other factors which make trial of a case easy, expeditious and inexpensive. The second set of called the public interest factors, includes the following: * The administrative difficulty encountered when litigation pends for protracted time periods in congested centers rather than being handled at its origin; * The imposition of jury duty on people in a community having no relation to the litigation; * The local interest of having localized controversies decided at the location giving rise to the dispute; and * The bias in favor of having disputes with local interest decided within the jurisdiction having the greater interest in the eventual outcome of the controversy. These factors are not intended to provide bright-line rules. Rather, according to Gulf Oil, they are to serve as aids to the court in making a determination as to whether a discretionary declination of jurisdiction is appropriate. …