Demystifying Technology. Do Smart Contracts Require a New Legal Framework? Regulatory Fragmentation, Self-Regulation, Public Regulation.
53 Pages Posted: 20 Aug 2018
Date Written: May 17, 2018
This paper explores the problem of systematization that new technologies, in particular blockchain-related technologies, entail. From a commercial law perspective, it discusses whether the rules provided in the commercial context for the conclusion of contracts between two “human” parties may be safely extended to blockchain smart contracts. After providing a description of blockchain, and its main properties, followed by a brief analysis of smart contracts, the paper explores the application of some specific commercial rules provided by the Uniform Commercial Code (in particular Article 2) as well as the regulation promulgated for internet contracts in the aftermath of the Internet Era. It also considers state-level regulatory initiatives and the problem of regulatory fragmentation, in contrast to the need for uniform principles expressed by the emergence of the so-called Lex Cryptographia. Further, it emphasizes the importance of both public regulation and self-regulation, and the role of new organizations, in particular the Chamber of Digital Commerce.
Keywords: Smart Contracts, Blockchain, ICOs, Bitcoin, SEC, CFTC, Federal Regulation, State Regulation, UCC, Self-regulation, Chamber of Digital Commerce, Internet, "do no harm" Approach
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