智能合约：是噱头还是未来商业的趋势（英文版）.pdf

1 Forthcoming in “Smart Contracts and Blockchain Technology: Role of Contract Law”, L. DiMatteo, M. Cannarsa MSc Candidate, University of Oxford; TILT Fellow, University of Tilburg; orcid/0000-0003-0721-4442; oscar.borgognounito.it. The author would like to thank Professor Tjong Tjin Tai, Piergiuseppe Pusceddu and Tommaso Crepax for their valuable comments. 1 See CB Insights, The Global Fintech Report Q2, 2017, M. Carney (Governor of the Bank of England), The promise of FinTech Something New Under the Sun?, Speech at the Deutsche Bundesbank G20 Conference on Digitalising finance, financial inclusion and financial literacy (Wiesbaden, DE), 25 January 2017, bankofengland.co.uk/-/media/boe/files/speech/2017/the-promise-of-fintech- something-new-under-the-sun.pdf?la=en UK Government - Office of Science, Distributed Ledger Technology: beyond block chain 2016, assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/492972/gs-16-1- distributed-ledger-technology.pdf. Electronic copy available at: 2 intrinsic technical constraints to the complexity of the real world. 3 Some also noted that the expression “smart contracts” might be misleading as, from a strictly legal perspective, they are not proper contracts, but a self-help remedy aimed at automating the performance of contractual obligations. 4 The purpose of this article is to provide an early overview of the cases where smart contracts usage may prove significantly beneficial, both for consumers and businesses. Section 2 illustrates the key aspects of smart contracts and the impulse they received through the rise of distributed ledger technology. Section 3 investigates, avoiding premature enthusiasm and exaggerated expectations, the essential conditions under which might be convenient to smart up a contract. By building upon the extant legal literature on the topic, sections 4 and 5 focus the discussion on the capacity of smart contracts to mitigate some of the well-known problems affecting B2C and B2B relationships. Section 6 argues that, unlike the current developments in the business sector driven by efficiency considerations, in the consumer protection realm a public policy intervention is crucial to unlock smart contracts potential. In this respect, the adoption of regulatory sandboxes in the rail and air sectors will be put forward as a first testing ground to evaluate the envisaged potential of smart contracts. The conclusions are summarized in section 7. 2. Setting the scene The debate around smart contracts is filled with ambiguities and misunderstandings. A great deal of this confusion stems from the fact that the expression was coined in the mid-90s pre-internet era dominated by the alluring rhetoric of the “digital revolution”. 5 At the time, smart contracts were meant as a computerized protocol that executes the terms of a contract. 6 According to this view, the humble vending machine could have been seen as a basic example of smart contract. However, as known, a vending machine is just a tool which allows the conclusion and the performance of a contract between two parties (the buyer and the vendor) in an automatic way. 7 In fact, since their very beginning, smart contracts have never had the requirements needed to be qualified as proper contracts from a legal perspective. 8 Since then, technology innovation has evolved at a rapid pace, opening the doors to e-commerce and online markets. It is worth pointing out that, according to the original definition, smart contracts do not necessarily need to be based on a blockchain. Interestingly, the business model of platforms such as Amazon, Netflix and iTunes, which automate contract formation and performance by digital means, fully meet the original definition of smart contracts. As the old-fashioned vending machine, they ensure that commercial transaction occur as agreed by the parties. Moreover, their structure is specifically designed to follow a particular procedure in the event of non-performance by one party. For instance, in case of a non-payment, they react by suspending the supply of the digital content to the user. In this way, service providers avoid triggering the time-consuming remedies provided by 3 See E. Mik, Smart Contracts: Terminology, Technical Limitations and Real World Complexity, 9. Law Innovation and Technology 2017, p 269, DOI: 10.1080/17579961.2017.1378468; E. Tjong Tjin Tai, Formalizing Contract Law for Smart Contracts, 6. Tilburg Private Law Working Paper Series 2017, DOI 10.2139/ssrn.3038800. 4 Alexander Savelyev, Contract Law 2.0: “Smart” Contracts as the Beginning of the End of Classic Contract Law (2017) 26 Information and Communications Technology Law at 10. 5 E. Mik, Smart Contracts: Terminology, Technical Limitations and Real World Complexity, 273. 6 N. Szabo, Smart Contracts: Formalizing and Securing Relationships on Public Networks, 2 (9) First Monday 1997, ojphi/ojs/index.php/fm/article/view/548/469. 7 E. Mik, Smart Contracts: Terminology, Technical Limitations and Real World Complexity, 274. 8 From a legal perspective, a contract can be defined as an agreement reached between two or more parties capable of enforcement by the public authority. See: J. M. Smits, Contract Law: a Comparative Introduction, (Cheltenham: Edward Elgar Pub 2017), p. 3. Electronic copy available at: 3 contract law and civil procedure to enforce their rights against the users. 9 As commonly acknowledged by several legal scholars, websites and vending machines do nothing but dispensing goods, services or digital contents in response to a counter-performance (e.g. a money release through a payment service provider such as PayPal). Therefore, the original idea of smart contracts, when properly cleaned up of the surrounding hype, can be reduced to automatized measures aimed at ensuring the performance of an agreement through either software or hardware. Nevertheless, it would not be possible to understand the current new interest around smart contracts without referring to blockchain and, more appropriately, distributed ledger technology (hereinafter, referred to as DLT). 10 In fact, its correct to speak of DLT instead of blockchain because the former is a broader category which encompasses all the potential application of smart contracts. 11 A distributed ledger is a decentralized, peer-validated crypto-ledger network of nodes that provides a permanent chronological record of all prior changes in states. DLT holds the promise of substituting commercial trust in intermediaries with trust in distributed technology and computer code. 12 Further, depending on the nature of DLT adopted, the records can be visible to the public or to a limited group of authorized users. 13 For the purpose of this article, it is worth highlighting the two main distinctions in the realm of DLT: unrestricted-restricted and public-private ledgers. Unrestricted (or permission-less) ledgers allow all those with the necessary technical capacity to take part in them, updating and validating new transactions. On the contrary, restricted ledgers (or permissioned) are open only to pre-defined subjects. Public and private ledger, instead, differ in terms of access rights and visibility to third parties. Anyone can have access to the transactions updated in a public ledger, whereas a private one can be read only by predetermined subjects (may they be actual participants, third-parties or supervisory authorities). One can opt for a particular type of distributed ledger depending on his preferences and aims. Fully decentralized ledgers are slow and deeply inefficient. This is due to the shared computing activity carried out simultaneously by all the participants of the underlying peer-to-peer network. Cost-related and efficiency considerations aside, the choice between setting up an unrestricted versus a restricted blockchain need to be evaluated considering many aspects. 14 First, the level of 9 See: M. Raskin, The Law and Legality of Smart Contracts, 1. Geo. L. Tech. Rev. (The Georgetown Law Technology Review) 2017, 305-341 at 306, DOI 10.2139/ssrn.2842258; P. Cuccuru, Beyond bitcoin: an early overview on smart contracts, 25. International Journal of Law and Information Technology 2017 (3) 179-195 at 185, DOI 10.1093/ijlit/eax003. The Authors argue that smart contracts are simply a new form of self-help measures aimed at ensuring the performance of an agreement without the need of judicial enforcement. 10 For an overview of technical and business literature on distributed ledger technology, see: J. Maupin, Mapping the Global Legal Landscape of Blockchain and Other Distributed Ledger Technologies, 149. CIGI Papers 2017, cigionline/publications/mapping-global-legal-landscape-blockchain-and-other-distributed-ledger- technologies; G. Hileman and M. Rauchs, Global Blockchain Benchmarking Study, Cambridge Centre for Alternative Finance Report 2017, D. S. Evans, Economic Aspects of Bitcoin and Other Decentralized Public-Ledger Currency Platforms, 685. University of Chicago Coase-Sandor Institute for Law F. Boucher, How blockchain technology could change our lives, European Parlamentary Research Analysis (STOA) 2017, DOI 10.2861/926645. 11 See: UK Government - Office of Science, Distributed Ledger Technology: beyond block chain 2016; P. Athanassiou, Impact of digital innovation on the processing of electronic payments and contracting: an overview of legal risks, 16. ECB Legal Working Paper Series 2017, p. 14, DOI 10.2866/201593 12 The expression of “trust-less trust” has been advanced by K. D. Werbach, Trust, But Verify: Why the Blockchain Needs the Law, Berkeley Technology Law Journal 2018 (forthcoming), DOI 10.2139/ssrn.2844409. 13 See: P. Athanassiou, Impact of digital innovation on the processing of electronic payments and contracting: an overview of legal risks, 28. 14 For an in-depth analysis, see: H. Eenmaa-Dimitrieva and M. J. Schmidt-Kessen, Regulation through code as a safeguard for implementing smart contracts in no-trust environments, 3. EUI Department of Law Research Paper 2017, p. 10, DOI 10.2139/ssrn.3100181. Electronic copy available at: 4 identifiability of the subjects participating in the distributed ledger needs to be considered: only if the access is restricted it is possible to identify each user. Second, ways to design the consensus mechanism so as to provide incentives for the validation process of each transaction. Third, the degree of transparency, which plays a crucial role depending on the purpose of the distributed ledger - business confidentiality or data protection concerns are crucial when it comes to regulated markets and trade relationships. Fourth, permissioned ledgers, which are highly likely to require a governance arrangement among their participants to define liabilities and rules of functioning and access. 15 Transacting parties can decide to make use of smart contracts by leaving the duty to perform the contract to the software. 16 Clearly, the mere fact that certain aspects of a contract are performed automatically does not mean that the transaction is “free from the reach of regulation”. 17 The agreement still needs to be compatible with the relevant jurisdiction-specific legal framework. 18 According to the vast majorities of legal systems, an essential element for the formation of a contract is the “meeting of the minds” between the transacting parties. 19 In short, all the parties need to be spontaneously willing to enter into the contract. In most cases such a reciprocal intention can be expressed freely without any formal constraints. As known, a contract can be formed by either spoken or written words and even by the mere conduct of the parties. Thus, there is no legal obstacle preventing two parties from expressing their agreement in code or availing themselves of a software running on a blockchain to execute their agreement. The working definition of smart contracts used in the present paper lies at the intersection of the mid-90s concept of a computerized protocol that execute the terms of a contract and the opportunities arising from distributed ledger technology. In short, a smart contract is meant as a piece of software run on a distributed ledger enabling automatic execution of an agreement -regardless if lawfully or not - reached between two or more parties. 20 In this way, each asset transfer is time-stamped and publicly recorded on the ledger. This article refers, therefore, to distributed ledger-based smart contracts (or, for the sake of brevity, smart contracts). 21 15 For a similar view, see: P. Athanassiou, Impact of digital innovation on the processing of electronic payments and contracting: an overview of legal risks, 29. 16 M.L. Perugini and P. Dal Checco, Smart Contracts: A Preliminary Evaluation, SSRN Paper 2015, p. 9 DOI 10.2139/ssrn.2729548. 17 A. Wright and P. Filippi, Decentralized Blockchain Technology and the Rise of Lex Cryptographia, p. 2, SSRN Paper 2015, DOI 10.2139/ssrn.2580664. 18 As in the case of a vending machine selling prohibited drugs, the relevant law would still be applicable and enforceable. On this point, see: H. Eenmaa-Dimitrieva and M. J. Schmidt-Kessen, Regulation through code as a safeguard for implementing smart contracts in no-trust environments, 42. 19 See: J. M. Smits, Contract Law: a Comparative Introduction, (Cheltenham: Edward Elgar Pub 2017), p 37. 20 In this sense, for example, R. De Caria, A digital revolution in international trade? The international legal framework for blockchain technologies, virtual currencies and smart contracts: challenges and opportunities, Vienna, 4-6 July 2017, 21 Similarly, this article is not about so-called “algorithmic contracts” (agreements in which an algorithm determine the responsivities and rights of one or both parties by acting indirectly as gap-filler or negotiator). It is possible that smart contracts are used in complementarity with algorithmic contracts. For an overview on this topic, see: L. H. Scholz, Algorithmic Contracts, 20. Stanford Technology Law Review (Stan. Tech. L. Rev.) 2017, p. 128, A. Ezrachi and M.E. Stucke, Virtual Competition. The Promise and Perils of the Algorithm-Driven Economy (Harvard University Press 2016), 56-81; See also: L. H. Scholz, Toward a Consumer Contract Law for an Algorithmic Age, Oxford Business Law Blog - Law and Autonomous Systems Series (17 April 2018), law.ox.ac.uk/business-law-blog/blog/2018/04/law-and- autonomous-systems-series-toward-consumer-contract-law. Electronic copy available at: 5 3. The features of smart contracts 3.1. The strengths Smart contracts ensure “ex ante” the performance of a contract by eliminating the default risk at almost no cost without any external human intervention. 22 Thus, they allow the parties of a contract to set-aside the enforcement-related costs in case of breach.