Smart Arbitration As a mechanism for resolving investment disputes (Comparative study of Kuwaiti and French law)
Mohamed Fathelbab
Civil Law - Faculty of Law - Ain - Shams Universaity, Seconded to Al-Buraimi University College
Abstract
If some consider blockchain technology - one of its applications smart contracts - to be one of the best and most advanced innovations since the advent of the Internet, others argue that it can be considered a mere "technological bubble" that will explode in a short period of time, despite differing views on these Innovations, however, cannot be denied that they receive a great deal of attention from many entities, both governmental and other, as many business and financial institutions try and apply these technologies. On the other hand, if 2017 is a year of blockchain technology, 2018 is the year of "smart contracts." According to legal studies, a smart contract is generally a user-based program that defines the rules governing transactions, which are implemented by a network of parties, where smart contracts promise to eliminate the need for intermediaries and transaction-related costs. But before going into the issue of smart contracts, the legal recognition of the blockchain by various legislations, which has already been initiated by some states, such as the French Civil Code under Decree No. (131) of 2016, which was amended by amendment, must begin. Legal, in addition to the decree on the French Informatics Dictionary according to the latest amendment in 2018, which defined the blockchain, as well as the French Monetary and Financial Transactions Act, which recognized transactions made through the blockchain. In the same vein, since the law does not prevent disputes between the parties to the contract, it sets out appropriate legal mechanisms to resolve them, whether by judicial or amicable means, and we intend to arbitrate. Economic life, as Professor Rainier David says in our time, has become unthinkable without arbitration, until the latter has become a requirement of the legal framework for major investment and development projects. The investor is primarily interested in resolving disputes arising from contracts that he or she concludes in fair, easy and successful ways, and this is perhaps what is available in arbitration, especially when conducted by smart, innovative means, through the blockchain. Smart arbitration is done through smart contracts concluded across the blockchain, where future disputes between the parties to the contract are incorporated into symbols in the contract, and then a mechanism is put in place to resolve those disputes, i.e. if one party expects the other to violate the implementation of one of the obligations contained in the A smart contract, such as paying the agreed price or breach of delivery, is applied automatically and directly, as the nature of the smart contract is based on the expectation of breach of the obligations contained in it and the direct signing of the penalty, as expressed as "If-Then". Therefore, the need for a more effective and effective approach to the development of the system is a major challenge. An example is arbitration that takes place within or in the back of the blockchain applications, including smart contract platforms, where built-in arbitration or "decentralization", enables the resolution of disputes related to blockchain transactions without traditional legal justice procedures or frameworks, the OpenCourt website, an initiative that has been Developed by OpenLaw, it focuses on contracts that include a smart contract arbitration system."
Keywords
Smart Arbitration - Blockchain- Smart Contract- Investment
