As described by Max I. Raskin, a blockchain is simply a decentralized ledger for recording digital data in a verified time-stamped manner without the need for a trusted third party. Blockchain technology provides, according to Joseph Bambara, et al., more “security, traceability, and transparency of records…as well as lower operational costs.” In this regard, public blockchains are protected from security threats because they maintain the information on multiple nodes where more than 51% of the nodes would have to be compromised before any security breach could occur.
The best definition of a smart contract is: “a set of promises, specified in digital form, including protocols within which the parties perform on these promises.”1) Accordingly, a smart contract is a computerized algorithm which automatically performs the terms of the contract. As Bambara notes, smart contracts lie on a wide spectrum ranging from vending machine contracts to fully blockchain-executed smart contracts. As described here, a recent example of fully blockchain-executed smart contracts is a smart contract for a flood insurance policy, linked to the precipitation data from the Met Office. Once the data from the Met Office feeds into the blockchain, the policy is automatically triggered, and insurance claims are paid out. Our discussion in this series of articles will focus on smart contracts executed on public blockchains such as Ethereum. Please find a chart available here explaining the concept of smart contracts that are executed on blockchains.
As Raskin notes, Smart contracts typically have the following characteristics: (1) execution is automated; and (2) performance is ensured without recourse to law enforcement. In this regard, the main difference between smart contracts and traditional legal contracts is “the ability of smart contracts to enforce obligations by using autonomous code.”2) Smart contracts do that by recording performance obligations in a strict and formal programming language (like Ethereum’s Solidity).
Generally speaking, the code of the smart contract is executed without relying upon a trusted third party3); the code is rather implemented in a distributed manner by all of the nodes supporting the underlying blockchain-based network whereby no single party controls the blockchain4) (i.e., Ethereum). This autonomous scheme makes the promises recorded into smart contracts to be – by default – more difficult to get amended or terminated than promises in traditional legal contracts recorded in natural language (i.e., legalese). Accordingly, as Kevin Werbach and Nicholas Cornell have written, unless the parties have incorporated some logic in their smart contract to enable the amendment and the termination of such a smart contract, then there might be no way to halt the execution of a smart contract after it has been triggered by its parties.
Legal Challenges Related To Smart Contracts
Smart contracts raise numerous enthralling legal challenges. This section will try to shed light upon some of these legal challenges as follows:
(1) Legal Effects
As a starting point, are smart contracts legal binding contracts? The answer to this question depends upon three main factors: (1) the specific use case; (2) the form of smart contract being used (i.e. entirely coded in software or a hybrid smart contract with both an encrypted coded version and a text-based version); (3) the law applicable to the contract. This means that the answer might vary significantly depending on the concerned jurisdiction. As Bambara has observed, often the certainty of the content of the contractual terms and whether they are comprehensive enough is a critical factor in determining the legal effects of any contract in numerous jurisdictions. In order to eliminate such uncertainty surrounding the legal effects of smart contracts, some states like Delaware, Tennessee, and Arizona have passed legislation to recognize the legal effects of smart contracts. In 2017, Arizona has passed the amended Arizona Electronic Transactions Act (AETA), HB 2417, which defines blockchain technology as a “distributed, decentralized, shared and replicated ledger, which may be public or private, permissioned or permission less, or driven by tokenized crypto economics or token less” and indicates that the “data on the ledger is protected with cryptography, is immutable and auditable and provides an uncensored truth.” HB 2417 also defines smart contracts as an “event-driven program, with state, that runs on a distributed, decentralized, shared and replicated ledger that can take custody over and instruct transfer of assets.” Therefore, parties to a smart contract might be able to ensure that their smart contract is legally binding if they elect the law applicable to the contract to be that of Arizona, or Delaware or Tennessee or any other jurisdiction that recognizes the legal binding effects of smart contracts. Such a choice of law has to be supplemented by choice of forum that would recognize and enforce the parties’ choice of law.
(2) Amendment and Termination of Smart Contracts
The original smart contract concept has started with the invention of the vending machine. With a vending machine for soft drinks, one can insert a dollar for instance and gets back a soft drink. However, the process of a vending machine is not flawless. For instance, what if one changed his mind after inserting the dollar and wants to get chocolate instead of a soft drink; or, what if one changed his mind and did not want anything anymore. An even more intriguing question, what if the vending machine does not perform its obligation and dispenses the soft drink; I am sure many of us have faced such a situation and did not know what to do. These examples also apply in the realm of smart contracts which are entirely recorded on blockchains.
(3) Coding limitations
Whenever one mentions coding limitations in the world of the blockchain, the decentralized autonomous organization (“DAO”) incident has to be mentioned. As described by Raskin, the DAO was formed in 2016 to create an investing fund that “would not be controlled by any one individual, but by shareholders voting based on their stakes on a blockchain.” The DAO was able to pool funds worth $150 million. Soon after this money was raised, a hacker was able to divert about what is worth $40 million funds from the DAO in an unpredictable manner. The hacker did not “hack” the code in a malicious way but rather exposed a legal loophole in the smart contracts of the DAO. This incident shows how coding is limited and how bugs could be simply exploited by hackers. Thus, as David Zaslowsky noted here, it is not really surprising that a 2016 study of Ethereum smart contracts revealed that there are at least 100 errors per 1,000 lines of code. Bambara has raised the intriguing question of who should be liable for such mistakes or errors? In traditional contracts, the parties would be able to sue the drafting lawyer for malpractice, could a similar lawsuit be brought against the coders of smart contracts for coding errors. These are novel legal issues that do not exist with traditional text-based contracts; it will be interesting to see how courts and arbitral tribunals will deal with such incidents.
(4) Ability to design complex contracts
As the adoption of blockchain spreads, smart contracts will become increasingly complex and capable of handling highly sophisticated transactions. Currently, coders are already stringing together multiple transaction steps to form more complex smart contracts. Nonetheless, we are many years away from code being able to determine more subjective legal criteria. For instance, as Stuart D. Levi and Alex B. Lipton have written, there is no yet code that would be able to determine whether a party satisfied a commercially reasonable efforts standard or whether a force majeure clause should be triggered or not.
Credit: Kluwer Arbitration Blog
http://arbitrationblog.kluwerarbitration.com/2018/08/23/arbitration-smart-contracts-part-1/
Arbitration, and typically commercial arbitration, is an Alternative Dispute Resolution (ADR) which is agreed by parties of the dispute. Arbitration can be used to replace the traditional way of litigation in court.
Derive from arbitration’s dispute settlement principles, arbitration shows many pros and brings many benefits for parties in commercial dispute, specifically as follows:
A Polish appeals court vacated an International Chamber of Commerce (ICC) partial award for alleged irregularities in the arbitrator's appointment (for further details please see " ICC award set aside due to irregularities in arbitrator's appointment "). The sole arbitrator's final award was also successfully challenged and set aside. The first reason to vacate the final award was also the issue of the sole arbitrator's appointment.
It is normal to inspect the goods that have been lost or damaged during the performance of the sales contract and in the contract of carriage. However, improper inspection can lead to significant disputes and damages that you can refer to below.
The ten years of Law on Commercial Arbitration 2010 (LCA) are also the 10-year development period of VIAC - the first institutional arbitration organization in Vietnam, the organization that goes along with the formation and advancement of the legal framework of commercial arbitration in Vietnam.
Law on Commercial Arbitration (“LCA”) enacted in 2010 was considered a major step forward for the development of commercial arbitration in Vietnam. Compared with the previous years and with international standards, LCA has made remarkable progress, namely recognizing enterprises’ freedom of choice, broadening the scope of arbitration, raising the arbitral tribunal’s authority, valuing court assistance (especially interim measures enforcement), encouraging flexibility in language of arbitration, and improving party’s autonomy in arbitration while maintaining proper manners during arbitral proceedings.
Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.
Law on Commercial Arbitration 2010 (LCA)- the procedural law governing arbitration proceedings whose seat is in Vietnam
Nowadays, as the digital economy emerges, electronic agreements on online websites are becoming more and more prevalent; hence, the legal effect of establishing terms and conditions of service when accessing the website (browse-wrap) and clicking (click-wrap) are of particular interest. The following paper analyzes some of the legal aspects of online agreement conclusion, especially the establishment of the arbitration agreement by means of browse-wrap and click-wrap.
Whether settling disputes in Court or through arbitration, when a party has the burden of proof, it must submit evidence to the arbitral tribunal. The evidence can be in many different forms: Document electronic evidence, audio recordings, video recordings, witness statement, etc. In international arbitration practice, especially in complex disputes, a type of evidence that is frequently used by the parties to defend their opinion/request is testimony/report of "expert witness".
In international commerce and investment, parties to a dispute often select arbitration as an alternative dispute resolution other than litigation in which the court, an authorized state agency, adjudicate disputes. An explanation for this phenomenon is that arbitration may be the optimal means that the parties can exercise their autonomy in writing to select one or several individuals who are not representing state agencies and state power (the so-called private parties) to resolve disputes. However, to prevent the possibility of arbitrators "privatizing" justice, [1] the New York Convention and the ICSID Convention set out the rules for annulment of arbitral award when such award violates arbitral proceeding. Here, questions arise. What rules of procedure are violated? And to what extent is the commercial and investment arbitral award annulled? This article seeks to elucidate the theory and practice of annulment for violations of procedure under the New York Convention and the ICSID Convention.
Goods can be consolidated, batched, packed, sorted, and grouped for a certain period of time before being loaded onto a trailer for carriage to the consignee. Disputes about whether the time to do these things are within the scope of insurance liability or not is an issue worth knowing (through the lawsuit with the documents of a foreign law firm) below for readers’ reference.
Mr. Vu Anh Duong is the Secretary General of the Vietnam International Arbitration Centre (“ VIAC “), which is the leading Vietnamese arbitration and mediation institution . Mr. Duong has contributed significantly to the development of arbitration in Vietnam in various ways; in addition to his role with the VIAC, Mr. Duong has served as a member of various drafting committees dealing with not only the VIAC’s Rules of Arbitration (2017) (“ VIAC Rules ”), but also Vietnam’s arbitration-related legislation. He also regularly lectures on commercial arbitration and sits as an arbitrator in both international and domestic commercial arbitrations.
Abstract: This discourse focuses on a detailed analysis of some theoretical and practical issues about the application of interim emergency measures involving third parties, in the field of domestic and international. Besides, the discourse provides measures to enhance the ability to enforce the decisions applying interim emergency measures with the third parties within the realm of international arbitration law. Subsequently, it extracts experience and recommendations pertaining to the legal framework in Vietnam regarding this matter.
During arbitral proceedings, the mediation process may cause some certain conflicts that requests the Arbitral Tribunal to seriously consider. Resolving effectively these conflicts based on fundamental legal principles and the arbitration skills of the Tribunal will ensure the rights and interests of disputing parties and third parties. This discourse focuses on analyzing potential conflicts and providing recommendations to the Tribunal to maximize the effectiveness of the mediation process and reduce conflict occurrence.
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According to the Department of Judicial Support , Ministry of Justice, currently , there have been 48 arbitration institutions established in our country, with over 600 arbitrators participating in resolving thousands of commercial disputes each year 1 . An arbitration service has been developed. Along with the growth , the trait of this service became more apparent , includi ng the relevance of third-party interests. Unlike court litigation, in principle, arbitration is a private dispute resolution method , therefore, the involvement of third parties is exceptional. The discourse discusses how the arbitral tribunal considers and guarantee s the third party's interest in the arbitra l proceedings by providing some situations in which disputing parties or the arbitral tribunal may need to consider the interests of third parties. The goal of arbitr ation is to make contributions to resolving disputes fairly, thereby encourag ing parties to fulfill their obligations voluntarily in order to avoid further dispute escalation of disputes . Based on the analysis , the author suggests policy improvements pertaining to third parties that may be considered in the upcoming revision of the Law on Commercial Arbitration.
In August 2024, the International Council for Commercial Arbitration (ICCA) formally published the second edition of the ICCA’s Guide to the Interpretation of the 1958 New York Convention. The Guide is a clear, concise yet inclusive handbook, written in plain language, on the essential aspects of the scope, interpretation and application of the Convention. Though principally aimed at judges determining applications under the Convention, the Guide, which benefits from the extensive practical and academic experience of its authors (prominent arbitrators and ICCA members) will also be of interest to students, teachers and practitioners as an introduction to the Convention.
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