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The challenge of smart contracts

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Smart contracts, and the wider blockchain architecture which supports them, are widely viewed as ‘revolutionary’ or ‘disruptive’. There is not one common definition for a smart contract but the concept is certainly affecting the global contractual landscape by forcing a reappraisal of fundamentals such as what is a contract, what must a contract do, and who gets to decide?

With the established norm of ‘real world’ contracts meant to be written in plain intelligible language, does the digitised world of computer code meet this requirement? And by removing humanity from the contractual process, who is then the arbiter of any disputes which may arise?

Blockchains have been promoted as a means of conducting peer-to-peer, decentralised networking in a variety of sectors, doing away with the problem of the ‘middleman’, for the last decade following the 2008 global financial crisis.

Expert Dr Robert Herian, Senior Lecturer in Law from The Open University Law School, sits on the All-Party Parliamentary Group on blockchain, and is currently writing a report for the EU Commission’s Blockchain Observatory on legal recognition of smart contracts and blockchain registries. He is the author of Regulating Blockchain: Critical Perspectives in Law and Technology, published in early October, which looks at potential routes to regulation of blockchains, associated blockchain technologies, and the conduct fostered by this technology.

Smart contracts are the first exploratory step away from normal contract law. Their use poses a number of economic, legal, political and social questions. There are ethical and moral considerations, particularly relating to democratic principles and private interests.

Although the technology offers a safe and secure system, there is no de facto trust in blockchains. There is also no case law or firm legislation in the UK or other EU member states. Artificial intelligence and quantum computing is going to have a massive impact on these kinds of things.

Dr Robert Herian
Senior Lecturer in Law

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