A ascensão da Internet e as novas tecnologias desenvolvidas nas últimas décadas têm transformado a vida em sociedade, digitalizando diversos processos e resultando na redução da distância física entre coisas e pessoas. O comércio internacional é uma das áreas que lida com essas transformações, sendo o Direito Internacional a esfera responsável por atualizar suas regras. Inserido nas tecnologias de registro distribuído e blockchain, a nova modalidade de contratos, chamada de smart contracts, surge como ferramenta revolucionária capaz de reorganizar a estrutura comercial internacional. Apesar de já serem utilizados com diversos intuitos na atualidade, esses contratos inteligentes ainda implicam em questões regulamentárias, pois envolvem toda uma estrutura interdisciplinar que precisa ser compreendida em profundidade. Nesse cenário, a presente pesquisa tem como objetivo geral desenvolver uma abordagem inovadora e eficaz para a otimização da escolha da lei aplicável aos smart contracts no comércio internacional. Como objetivos específicos, procurou-se registrar a evolução do comércio internacional e sua importância; discorrer sobre a ascensão da Internet e das novas tecnologias no comércio internacional; especificar as novas formas de comércio e diferenciar os contratos eletrônicos dos inteligentes; conceituar as tecnologias de registro distribuído e blockchain; enunciar os conceitos e aplicabilidade dos smart contracts; analisar se eles trazem segurança jurídica; definir a importância da harmonização e uniformização na escolha da lei aplicável aos smart contracts; detalhar as perspectivas do Instituto Internacional para a Unificação do Direito Privado - UNIDROIT e a Comissão das Nações Unidas para o Direito Comercial Internacional - UNCITRAL sobre o tema; para, por fim, oferecer critérios de indicação de lei aplicável. A pesquisa é exploratória e descritiva com abordagem qualitativa, a partir de levantamento bibliográfico e documental, de acordo com o método dedutivo. Conclui- se que a melhor forma de propiciar a escolha de lei aplicável aos smart contracts se dá através da sugestão do modelo de jurisdição em duas camadas voltado para os smart contracts, acoplando a vertente autônoma do código e a defesa da criação de um novo documento uniformizado.
Smart contracts are the new tool on the block used to govern contractual relationships between parties, both within a nation state and internationally. Smart contracts use blockchain technology that is changing the process of contract formation, governance and implementation. This chapter discusses how the jurisdictions compared are all various stages of regulating and dealing with smart contracts. The chapter also examines how smart contracts can apply to the Convention on the International Sale of Goods 1980 in a limited way. Finally, this chapter builds on Chapter 1 by identifying the issues that are emerging in relation to arbitration of smart contract disputes.
Lucas Massoni Sguerra, Pierre Jouvelot, Fabien Coelho, Emilio Jesús Gallego Arias · 5 authors
Smart contracts face a significant challenge regarding the data transparency inherent to the blockchain-based decentralized systems on which they run. This transparency can limit the potential applications and use cases of smart contracts, especially when privacy and confidentiality are paramount. Presently, blockchain applications that require a certain level of privacy will tend to rely on off-chain, centralized solutions. However, this approach introduces trade-offs, potentially compromising the trust and security provided by blockchain technology.In this article, we advocate for the integration of cryptographic tools into smart contracts, aiming to enhance privacy and address transparency concerns in applications. We introduce the notion of a Privacy Framework (PF) as the general building block that addresses privacy issues in smart contracts by linking privacy requirements and adequate implementations. Since auction are important applications that strongly rely on privacy for reaching their full potential, we adopt in this paper the auction known as Vickrey-Clarke-Groves (VCG) Auction for Sponsored Search as a use case to develop the notion of PFs. In practice, we provide three PF instances, of increasing complexity, to improve the privacy assurances of specific auction smart contracts. Our experimental assessment of these PF instances suggest they are efficient, not only in terms of privacy preservation, but also in gas and monetary cost, two crucial factors for the viability of smart contracts.
We use transaction cost economics (TCE) to define the “digitization of transaction terms” shift parameter that describes the institutional changes associated with increased digitization in society. We then draw on legal scholarship to analyze how strong smart contracts, which refer to agreements with automatic execution and enforcement that are not reversible by courts, rely on a new level of digitization of transaction terms. Specifically, these contracts may rely on standard digital infrastructures such as blockchain systems that guarantee automatic execution and non-reversibility. Strong smart contracts represent a distinct mode of transaction governance compared to markets, hierarchies, or hybrids. This is because each classic governance mode is distinguished by how ex post adaptation is handled—through public courts, managerial fiat, or both. In contrast, strong smart contracts prevent ex post adaptation altogether. We propose that when strong smart contracts can be fully specified, they may dominate other governance modes based on certain trade-offs. These trade-offs include weighing the benefits of avoiding the holdup problem and lowering contract enforcement costs against the downsides of high ex ante specification costs and the elimination of flexibility to make ex post adjustments in a changing environment. Our discussion elaborates on which institutional conditions can further facilitate this institutional shift.
The chapter focuses on how modern technologies challenge the concept of ownership in property law. The authors explore the implications of decentralised ownership models, such as those used by Decentralized Autonomous Organizations (DAOs), and the potential for AI systems to hold property rights. The article provides a detailed analysis of how property law systems might adapt to these emerging challenges. It considers the possibility of AI systems owning property independently, akin to corporations' current activities. The authors also discuss the ethical and practical implications of AI ownership, including the need for legal frameworks to address liability issues and the limitations of AI in comparison to human cognitive and physical abilities. The authors suggest that the legal concept of ownership, particularly in property law, must evolve to accommodate the unique characteristics and capabilities of AI systems and blockchain technologies. This evolution, they argue, is crucial for the law to remain relevant and effective in the 21st century.
The Uniform Law Commission and American Law Institute have recognized the need for commercial law to govern digital transactions and responded with the proposed addition of a new article to the Uniform Commercial Code (the “Code” or “UCC”), Article 12. Article 12 will govern the transfer of property rights in a particular category of digital assets (controllable electronic records), which would include commonly known digital assets, such as bitcoin and non-fungible tokens (“NFTs”). Although the addition of Article 12 should provide more certainty in transactions involving current and emerging technologies, there is a fundamental problem with the article as it is currently drafted, which, left unresolved, will instead invite legal uncertainty and litigation. The problem is the drafters’ choice to cast the “qualifying purchaser” in the role of the dramatis personae of Article 12. Article 12’s “qualifying purchaser” benefits from a generous rule that allows them to take controllable electronic records free from competing claims. The drafters include a person who obtains a controllable electronic record from a thief or hacker as someone who could be a “qualifying purchaser.” However, in order to be a “purchaser” under the current definition in the UCC, a person must take through a transaction that creates an interest in property. Thieves and hackers obtain no property interest when they steal a controllable electronic record, so a person who takes a controllable electronic record from a hacker could not be participating in a transaction that creates an interest in property. Thus, they could not be a “qualifying purchaser,” as the drafters claim. Most of the uncertainty of the result could have been avoided had the drafters chosen a term other than “purchaser” to describe the beneficiary of Article 12’s liberal take-free rule and defined it in a manner that would effectuate the drafters’ statutory aim. However, despite making the drafters aware of this glaring issue, they have failed to remedy the mistake. This is unfortunate and will likely lead to legal uncertainty and, thus, needless litigation after the article’s enactment. Why rely on courts to tweak sections of the Code if ambiguities are recognized and can be eliminated by careful drafting? If inartful statutory drafting is a source of uncertainty that can easily be reduced without offsetting social costs, efforts should be made to do so.
Blockchain technology is a revolutionary concept that has transformed various industries, offering decentralized and secure solutions for data management. At its core, a blockchain is a distributed and immutable ledger that records transactions across a network of computers. One of the key features of blockchain is its transparency, as each participant in the network has access to the same information. The application of blockchain technology extends across diverse sectors, with finance being the most promising and well-known application domain. Cryptocurrencies, like Bitcoin and Ethereum, rely on blockchain to facilitate secure and transparent transactions. The decentralized nature of blockchain eliminates the need for intermediaries, reducing transaction costs and increasing efficiency. Beyond finance, blockchain is making significant strides in supply chain management. The emergence of blockchain technology has paved the way for a transformative innovation in the realm of digital transactions: smart contracts. These self-executing contracts encoded in blockchain have garnered significant attention for their potential to revolutionize the way agreements are made, executed, and enforced. This paper explores the concept of smart contracts, delving into the underlying technology, finding applications across various industries, legal implications, and future prospects.
The rise of NFTs seems to open new horizons for the exploitation of works in the digital world. This, of course, does not come without challenges. A number of IP infringement disputes are now coming to the forefront; minting NFTs without the consent of the creator of the original work and malicious use of a trade mark as an NFT without the permission of the brand owners are but a few examples. In light of the absence of any judicial guidance, this chapter aims to reflect on how the use of NFTs can trigger copyright or trade mark infringements and examine to what extent NFTs marketplaces can be liable for IP infringements that take place within their platforms, taking into consideration a line of case law from the CJEU and EU legal instruments.
Araújo, Fernando Ribas, Adriano - Stanley, 2024-04-17
de forma autnoma, logo, sem a necessidade de intermedirios verificadores com promessa de rapidez, previsibilidade, automao e autotutela.No entanto, a rpida ascenso dessa tecnologia instiga reflexes sobre suas implicaes jurdicas.
Smart contracts have played a pivotal role in the evolution of blockchains and Decentralized Applications (DApps). As DApps continue to gain widespread adoption, multiple smart contract languages have been and are being made available to developers, each with its distinctive features, strengths, and weaknesses. In this paper, we examine the smart contract languages used in major blockchain platforms, with the goal of providing a comprehensive assessment of their main properties. Our analysis targets the programming languages rather than the underlying architecture: as a result, while we do consider the interplay between language design and blockchain model, our main focus remains on language-specific features such as usability, programming style, safety and security. To conduct our assessment, we propose an original benchmark which encompasses a wide, yet manageable, spectrum of key use cases that cut across all the smart contract languages under examination. • We give an abstract overview of smart contract platforms, discussing the impact of different design choices. • We illustrate by examples how different design choices give rise to different programming styles for smart contracts. • We consider 6 leading smart contract languages: Solidity (Ethereum), Rust (Solana), Aiken (Cardano), PyTeal (Algorand), Move (Aptos), SmartPy (Tezos). • We develop an open-source benchmark of use cases of smart contracts, implemented in all the languages in our selection. • Based on our benchmark, we evaluate smart contract languages focussing on their security, code readability, usability, and functionalities.
Abstract It has been claimed that technology would replace the legal profession with artificial intelligence and codification of documents replacing the twenty‐first century lawyer. With this premise in mind, this paper discusses smart legal contract formation in the context of Australian contract law, the perceived replacement of lawyers through blockchain technology and how the COVID‐19 pandemic has set the trajectory for smart legal contract convention. We consider whether the legal profession can ever truly be replaced by technological advances and whether COVID‐19 has pivoted the way the legal profession performs business transactions towards modernisation. Although prior literature has considered how the legal profession may benefit from increased technology use, the expected timeframe for occurrence was dependant on a strong reluctance by the profession to change the status quo. Analysis of the impact of COVID‐19 on the legal profession including the execution of legal documents, provides insight into areas for improvement going forward and whether a regulatory overhaul is required. This research shows that, although there are a number of advantages to the implementation of smart legal contracts using blockchain technology, there still remains numerous implementation and regulatory concerns that need resolution if smart legal contracts are to be widely used.
إن التطور التقني أفرز نظاماً جديداً للتعاقد عن بعد يعرف بالعقود الذكية، والتي تمثل أحد تطبيقات تقنية سلاسل الكتل (Block‑chain) وتعتبر هذه التقنيات جيلاً متطوراً ومستحدثاً عن العقود الإلكترونية، إلا أن هذا العقد يواجه بعض الإشكاليات المتعلقة بتكوينه، منها ما يتعلق بالتعبير عن الإرادة والأهلية القانونية للمتعاقدين. لذا جاء هذا البحث لتسليط الضوء على هذه الإشكاليات، حيث خلص إلى بعض النتائج، منها أن الإيجاب يتشكل في العقود الذكية منذ لحظة نشر الكود البرمجي على منصة سلسلة الكتل، وأن أهلية التعاقد تمثل عائق أمام العقود الذكية، وعليه، يجب العمل على تحديد الآلية القانونية المناسبة للتعرف على أهلية المتعاقدين، سواء الشخصية أو الاكتفاء بالشخصية المالية الرقمية للمتعاقدين عبر العقود الذكية، والعمل على وضع تشريع موحد لتنظيم العقود الذكية. Technological advancements have given rise to a new remote contracting system known as Smart Contracts. These contracts, which are an application of block‑chain technology, represent a sophisticated and innovative generation beyond electronic contracts. However, the formation of these contracts faces challenges, particularly regarding the expression of will and the legal capacity of the contracting parties. This study sheds light on these challenges and draws certain conclusions. One of those conclusions that the Offer in Smart Contracts is established from the moment the program code is deployed on the block‑chain platform. Additionally, contractual capacity poses an obstacle to Smart Contracts. Therefore, it is essential to work towards defining appropriate legal mechanisms to determine the capacity of the contracting parties, whether in terms of personal capacity or reliance on the digital financial capacity of the parties through Smart Contracts. Furthermore, there is a need to develop unified legislation to regulate Smart Contracts.
Smart contracts, an integral component of blockchain technology, promise to revolutionize industries through automation, security, and efficiency. This paper delves into the mathematical foundations that underpin smart contracts, facilitating their security, reliability, and predictability within blockchain systems. The investigation spans topics such as deterministic execution, cryptographic security, finite state machines, formal verification, time management, address verification, game theory, statistics, and linear algebra. These mathematical underpinnings ensure the consistent behavior of smart contracts and bolster their integrity in decentralized networks. In a practical demonstration, the paper highlights the transformative potential of smart contracts in diverse industries. Supply chain management, financial services, healthcare, digital identity management, access control, transport, government services, and cyber defense emerge as just a few of the many real-world applications. Moreover, the paper describes the main tools employed in the smart contract development cycle as well as the main behavioral and security design patterns for Solidity smart contracts. This research offers a comprehensive exploration of the mathematical foundations of smart contracts, their application in real-world scenarios, as well as their main design and implementation tools. By unveiling the synergy between mathematics and technology, this paper illuminates the path to harnessing the full potential of smart contracts in shaping the future of blockchain-powered industries.
Smart contracts codify real-world transactions and automatically execute the terms of the contract when predefined conditions are met. This paper proposes SmartML, a modeling language for smart contracts that is platform independent and easy to comprehend. We detail its formal semantics and type system with a focus on its role in addressing security vulnerabilities. We show along a case study, how SmartML contributes to the prevention of reentrancy attacks, illustrating its efficacy in reinforcing the reliability and security of smart contracts within decentralized systems.
Este artículo reseña:
 A. Ortega Giménez. Smart contracts and private international law. Thomson-Reuters Aranzadi, Cizur Menor (Navarra). 2022, pp. 80.
Abstract This chapter examines the legal nature of lex monetae in order to establish what control rights a non-state creator of a crypto-payment token which is accepted by a state might have over the circulation of that token after it passes into currency. This analysis draws heavily on FA Mann’s work on exchange controls, and his consideration of the basis for their recognition by courts other than the courts of the monetary sovereign. It concludes that there can be no private lex monetae and that existing private law doctrines do not provide a basis for the recognition of such control rights.
The dissertation is one of the first comprehensive national studies of the state of legal regulation of cross-border legal relations on the financial market of Ukraine with a comprehensive study of contracts on the financial markets of Ukraine in the system of international, European and Ukrainian financial markets. The choice of the specified topic is determined by its relevance in the view of the following points. Financial markets are becoming more democratized, the offering of financial services mostly does not depend on borders, the financial market is transforming and attracting new financial technologies. The main task for regulators in financial markets is to preserve the stability of the financial system. Legal regulation designed to achieve the specified task should not be an obstacle to the development of financial markets and compromise their efficiency. Financial markets are centralized and subordinated, and new legal relations tend towards their decentralization and maximum non-interference of the state. Contracts on the financial markets set the task to obtain the greatest economic opportunities for their parties, which becomes possible due to a wide range of financial instruments and offered financial services, which participants in legal relations can choose not only within the country of residence, but also throughout the world. When entering into such cross-border contracts in the financial markets, questions regarding the law applicable to such contracts are important aspects. Due to the complexity of some types of financial instruments, this issue becomes more important, which is important for research. Thus, new unsolved issues before private international law arise. Accordingly, in the first chapter, the author analyzes scientific approaches to the definition of the concepts of "financial market", "contracts on the financial market", “international financial market”. The structure of the financial market, its nature and classification of transactions on the financial market are determined herein. Further, in the first chapter, the characteristics of "cross-border" and "foreign element" in the financial markets of Ukraine are given, the need to determine the jurisdiction of the counterparty is established, and cross-border transactions are analyzed at the moment in the capital market of Ukraine. In the second chapter, the author directly examines each segment of the financial market and cross-border legal relations in it. Further, the main types of contracts on financial markets are analyzed and the issue of law applicable to these contracts is investigated herein. Also in the second chapter, regulatory regulation at the national, regional (EU) and international levels is defined. Judicial practice regarding contracts on the financial market is studied herein. Further, the General Agreement and contracts concluded with a trader conducting professional activity on the capital market and the client are analyzed. The role of transactions in each segment of the financial market is established and mechanisms for resolving disputes regarding such transactions are considered. In the third chapter, the legal regulation of the main transformational processes in the international financial market and the financial market of Ukraine are predicted. The main obstacles to cross-border activity in the financial market are determined herein. The legal regulation of the EU regarding virtual assets and distributed ledger technology, the corresponding infrastructure of the virtual assets market is analyzed in detail. The main trends for changes in the legislation of Ukraine regarding financial markets during Covid-19 and during the full-scale invasion of the Russian Federation are determined. When conducting the research, the author compares the previous and current legal regulation of Ukraine in the financial market, conducts a comparative analysis of Ukrainian legislation with EU law and the compliance of current legislation with international standards and principles, requirements of international regulators. Case study is analyzed and practical recommendations are provided for improving the legal regulation of Ukraine. The scientific novelty of the results obtained as a result of the dissertation research is as follows. The following author's definition is proposed: "financial market" – legally regulated mechanism of redistribution of financial assets, which occurs between participants of the financial market in accordance with the current legislation in order to obtain certain economic benefits. For the first time, the need to include the following segments in the composition of the financial market is justified: the capital market, the market of banking and non-banking financial services, the market of virtual assets, the organized commodity market, the foreign exchange market. Since the specified segments of the financial market are the mechanisms on which legal relations arise with respect to various financial assets to meet the needs of their participants. The author's view on the feature of "cross-border" is proposed: cross-border activity on the financial market is defined as the activity of any subject of the financial market, which carries out activity that has international characteristics, including legal relations of a private law nature with a foreign element. The special role of transactions in each segment of the financial market is determined: in the capital market, the role of a transaction of an auxiliary nature (not related to the basic financial asset), in relation to transactions with the infrastructure of the capital market and directly the main agreements regarding a financial asset (financial instrument), the role of a derivative financial instrument as a contract and a financial instrument, not a security, the role of a contract in the financial services market as the basis for providing a corresponding banking or financial service, the role of a currency contract as a type of derivative financial instrument. In order to improve the national legislation, it is recommended to make changes to the Law of Ukraine "On Virtual Assets" in order to harmonize the specified legal act with EU law. In particular, add the following provisions: clause 13, part 1 of Art. 1: 13) distributed ledger technology – virtual asset market infrastructure technology that implements a distributed ledger of data that is synchronized using an algorithm. Clause 8, Part 1, Art. 1 shall be amended as follows: 8) providers of services related to the turnover of virtual assets – exclusively business entities – legal entities that conduct one or more of the following types of activities in the interests of third parties: ... administration by distributed registry technology; Recommended subject to the entry into force of the Law of Ukraine "On Virtual Assets", the Law of Ukraine "On International Private right" to add the provision: Clause 5 Part 2 of Art. 44: 5). regarding contracts and operations concluded with the help of distributed ledger technology – the right of the state of the administrator of the distributed ledger technology. The classification of transactions on the financial market of Ukraine has been analyzed further (depending on the type of financial asset, the consolidation of obligations, the method of conclusion, the place of conclusion, by the presence of a foreign element, by segment of the financial market, with the participation of an intermediary). The author's definitions is proposed: "contract on the financial market" – a transaction entered into in any segment of the financial market and aimed at establishing, changing or terminating legal relations with respect to a financial asset and/or ensuring the efficient functioning of the financial market in accordance with regulatory requirements; "international financial market" – the mechanism of redistribution of international financial assets between participants of the international financial market in accordance with the harmonized norms of international legal regulation of the financial market. Scientific views on conflict-of-law regulation of the circulation of indirectly owned securities, transactions on the financial market concluded with the help of distributed ledger technology have received further development. Recommendations regarding the legal regulation of the virtual asset market in accordance with EU law were further developed, in particular, the provisions on tokens and tokenization as a digital representation of a value or right that is accounted for and stored using distributed ledger technology. The following proposals have been made regarding conflict regulation of transactions on the financial market. Since the analyzed attempts to unify the issues of the law applicable to legal relations regarding securities, in particular by solving conflicting issues regarding securities of indirect ownership, have common shortcomings regarding, in particular, the unresolved issues regarding virtual assets, which leads to potential future difficulties in the aspect of the application of financial technologies, the circulation of virtual assets, it is proposed to enshrine the following: issues arising in relation to transactions made by a transaction on the financial market, including transactions made on the DLT platform, in particular, issues of ownership of an asset, are resolved by the national law of the country that was determined in a specific transaction. In the event that such a right has not been determined by the parties, the law of the country shall be applied: – in relation to securities of indirect ownership: the right of location of the relevant intermediary – the formal holder of securities carrying out activities related to the administration of the securities account; – in relation to smart contacts: the right of the administrator of the DLT platform on which the smart contract was concluded; – in relation to other