Smart Contracts are a perfect example of “Amara’sthe code of the smart contract. In suchFinally, the issue of enforceability of an Law”, according to which new technologies are cases, parties will still have to resort award that stems from a smart contract to international arbitration to resolve has created heated discussions within overestimated in the short run and underestimatedwhat the intent of the parties was whenthe legal community. Article II of the in the long run the smart contract was drafted. The New York Convention requires an Home parties could have intended that one agreement to arbitrate to be in writing. party would assume the losses caused Depending on the jurisdiction that Editorial by some events, but may have failed to applies to the smart contract, it may include unforeseen ones within the smart be considered a written contract. Insight contract. Parties may have also left gaps The majority view suggests that When arbitration is not within the code intending to enable an parties should enter into a “Ricardian voluntary: the case of Mutu and Pechstein v. Switzerland amicable solution before resorting to Contract”, according to which there is arbitration. The bottom line is that it is a written version and a code-based highly unlikely that the drafters of the version of the contract. This may Global Briefing The impact of The Belt and code will be able to foresee every single avoid the risk of having the contract Road Initiative on investment outcome when drafting the contract. annulled because it is not in writing. arbitration Thus, arbitration will always be a tool Even so, since this topic is still virtually “What’s in a name?”: NAFTA to interpret the will of the parties or unexplored, there is no significant to USMCA and what this otherwise deal with unforeseen events. case law yet on whether Ricardian change means for investment Contracts will be validly enforced protection Another example would be if the under the New York Convention. smart contract does not incorporate In Focus every procedural detail required for an Conclusion Cultural Heritage Considerations in arbitration clause to be valid. Pathological International Investment clauses are far too common within the Smart Contracts are a perfect example Arbitration international arbitration community. of “Amara’s Law”, according to which Smart Contracts and Arbitration clauses are commonly referred new technologies are overestimated International Arbitration: to as “midnight clauses”, given that at the in the short run and underestimated in Friends or Foes? time that contracts are drafted parties the long run. Unrealistic expectations The Achmea decision: rarely foresee that a dispute will arise have been made based on the premise significant uncertainties linger and leave the arbitration clause for the that because certain transactions end of the negotiations. This frequently will be automated, there will be no Investment Arbitration: results in incomplete arbitration clauses, need for dispute resolution lawyers. Contact Lawyers which leave out several crucial facts The legal community seems eager that are later commonly disputed in to develop smart contracts as a tool arbitration, such as where the parties to make the practice of law more intended the seat of the arbitration to be, efficient, preventing potential disputes the governing law applicable to the merits by automating some transactions. Yet of the dispute, the governing rules of arbitration, in particular international procedure, the number of arbitrators, the arbitration, will still be an available confidentiality of the dispute, etc. recourse in case disputes do arise. www.uria.com 18