Ludovica Troili is a trainee lawyer, recently graduated at the University of Roma Tre in Law with a thesis in International Arbitration.
Her work, entitled “International Arbitration and the challenges with the new technologies”, focuses on smart contracts and the lack of a dispute resolution method. That’s why she dedicated the last chapter of her thesis to Jur’s online courts.
This article has been written by Ludovica Troili.
As someone passionate about International Arbitration, after having deepened it both at a theoretical and practical level, I was looking for an innovative topic to develop in my thesis project. During my research, I came across a conference organized by the Court of Appeal in Rome regarding the impact of new technologies on ADR systems, thus, from that moment, I have made my decision. If my initial goal was to explore the new frontiers of arbitration, I, finally, found myself studying blockchain technologies and, then analysing what may be their potential impact in the legal area. This has been the main question that I have tried to answer through my thesis. Hence, it is now necessary to take a step back to explain how I got there.
At first, as a beginner in the blockchain world, I devoted myself to unbridled research, by the means of books, manuals and every document on the subject available and participation in conferences, seminars, and events on the subject. During this period, I had the opportunity to debate the topic with numerous experts in various fields: mainly, (i) the professional used to employ the blockchain technologies in his/her daily activity; (ii) the student/post-graduate with a passion for this “new” economic system; (iii) the engineer or the computer technician involved with the language code and all its potentialities; (iv) the lawyer with a focus firmly directed towards the future.
At the end of my research, the most relevant aspect I have found was the high percentage of leading experts in new technologies and blockchain, all sharing a total lack of interest and consideration for the impact that the operations undertook with these technologies could have on a legal level. As a legal specialist, I find it impossible to exercise any kind of business activity, without the awareness of the aspects and the legal implications connected with it.
Therefore, once noted all those people who used to implement their activities through the blockchain technologies – without any regard to the legal protection that they could have had nor to the legal consequences that these operations which implemented in the virtual world could have had in the physical world – has made it imperative to me to study a solution to overcome this significant gap. The latter represented, later on, the very heart of my thesis project.
At the end of this path, I found myself with the handing over of my Paper, while at the same time, the COVID-19 began to expand worldwide, with the result that, in the middle of the pandemic, I graduated online in mid-March. This degree has been a clear demonstration of how such a dramatic situation has brought everyone, even the most reticent ones, closer to the daily use of technology.
What was once perceived as an option has become a need, and in the past weeks, as a legal specialist, I have been able to analyse how such a need was felt within the legal area. In Italy, many judicial and extra-judicial bodies have made a significant effort to implement remote hearings and, further, most law firms have facilitated the possibility to hold meetings in videoconference. All of these to sum up to the sponsorship of a huge number of webinars that are spreading on the Internet, in order to promote the running of distance conventions and seminars. Everyone is striving to avoid that the isolation and social distancing do not also involve immobilization of the life of each one. It is hoped that such a motivation to eliminate the distance between the legal area and technological evolution would work as a starting point for an even closer future collaboration between these two worlds.
In this regard, in my thesis project – based on the convergence between these two areas – I analysed the advent of blockchain technologies and their legal implications. More specifically, the purpose is to deepen the issue of smart contracts and the lack of a dispute resolution mechanism, proposing, then, International Arbitration. The subject is introduced through an overview of the definition of blockchain technologies and, especially, smart contracts, dealing with their main features, functions, and practical application. After highlighting the technical characteristics of the said tools, the Paper shifts to their legal evaluation. As a result, doubts arise with regard to the legal nature of smart contracts, by leading, inevitably, to significant uncertainty about their jurisdiction and the suitable method for settling disputes. Given the numerous different views on such issues, a possible solution can be found in the figure of smart legal contracts, a hybrid version of smart contracts, where both the human language form and the code form of a single contract are combined and anchored within a valid legal framework. It is, in fact, a traditional contract able to be executed entirely or partially by a machine, the contracting parties will thus be able to take advantage of the automatic performance through the smart contract, having, at the same time, a traditional version of the contract which expresses in detail the agreed terms and conditions. Against this background, the Paper suggests the applicability of International Arbitration as the perfect candidate to facilitate the settlement of transnational disputes arising from such kinds of “digital agreements”. In this way, it would be possible to overcome all the above-mentioned doubts through a neutral procedure, supported by a body of legal experts specialised in the present field, with a flexible procedure tailor-made by the parties, and, finally, characterized by the binding character of the final decision taken by the Arbitral Tribunal, recognizable and executable in more than 160 countries.
In the last chapter of the thesis, in order to provide a practical representation of what has been said on a theoretical level, I reported the case study of Jur, a platform based on blockchain technology, which enables, firstly, every kind of users (even the ones with zero knowledge in legal / tech matters) to create smart contracts and initiate activities on the network, supported by technical and legal experts all around the world, secondly, it grants the parties to choose over three different ways to solve every eventual conflict, according to their needs (Open Layer; Community Layer; Court Layer). The above describes the possibility to settle disputes, of any nature and size, in an online procedure implemented on the blockchain, by virtue of all its inherent advantages, such as the possibility to save costs and time, to process a large volume of data in a fraction of time with no margin of error, to securely implement the proceeding due to the high cybersecurity and cryptography, and to manage original and authentic legal documents, given the immutability of the platform.
In view of the above considerations, the hope is that what right now has been implemented as an exception may, in the next future, be confirmed as the rule.
[Editor’s note: Jur is currently developing a new platform, called Open Justice, that sums up the theory behind the above-mentioned Court Layer to provide a fast, reliable and completely online procedure for dispute resolution worldwide]