Open Review of Management, Banking and Finance

«They say things are happening at the border, but nobody knows which border» (Mark Strand)

The disruption effect of blockchain and the future scenarios of contracting in the digital era.

by Ana Gascòn Marcèn and Claudia Marasco

Abstract: The article analyzes the inadequacy of blockchain’s reference regulatory framework, in relation to its potential applicability to some crucial areas of law and, in particular, investigates the advantages and critical issues of its use in contracts in the digital age. While Legislator is at various level focused on cataloging and defining blockchain phenomenon, the regulatory gap that emerges underlines the opportunity for a regulatory intervention at European level, which is able to ensure the development of the digital single market, considering the global extent and the rapid increase of its use.

Summary: 1. Digital technologies and their disruptive effect on contract law: the blockchain phenomenon. – 2. Technological profiles of blockchain. – 3. The current European regulatory scenario on the blockchain. – 3.1 Follows. The implications of blockchain use in the Italian regulatory scenario. Advantages and critical issues. – 4 The blockchain applicability to contracts in Italy, considering the current national regulatory framework. – 5. The sub-sumability of the blockchain phenomenon to regulatory framework of contracts in the digital age. Future scenarios

1. As traditionally underlined by literature[1], law is destined to change over time symmetrically to the evolution of human activities and, therefore, at the same time it presents itself as “the product and engine of economic, social and political changes[2]. The innovation of markets and of economic relationships in the technological direction is gradually inducing the jurist to review and to adapt the traditionally available archetypes, considering that the effects that new technologies have on natural and human “facts” no longer can represent a secondary variable, but a determinant variable of legal matters.

Digital technologies, in fact, as phenomena intrinsically and inevitably able to affect and influence the rules of the market and of its relationships, have promoted the introduction of new business and legal models. First ones models, among which digital platforms can be mentioned, have been proposed as more efficient tools for satisfying user needs, offering more flexibility and services in terms of cost containment, compared to those attributable to the traditional economy. The latter ones, to which ones would also be attributable the contractual relationships carried out in a network without intermediaries, seem to generate, not only economically but also socially, new paradigms, which require to be legally framed. We refer to the cd. DLT (Distributed Ledger Technologies)[3] and among them, in particular, at the prevalence of blockchain[4], which identifies a completely decentralized digital system, ie without intermediaries, which can also be used to conclude transactions.

In light of the aforementioned innovations spread, the careful jurist is called upon to carry out a more complex hermeneutic activity, aimed also, and preliminarily, at the technologies’ functional analysis. So much a lot, firstly in order that he can effectively shape the right to changing reality and, secondly in order that – when traditional classifications are inadequate to regulate new forms of relationships -, the Legislator can introduce the most appropriate legal solutions[5]. Indeed, it is undeniable that precisely the birth of new technological phenomena causes substantial difficulties in conceiving, ex ante, a prompt and efficient abstract and general regulation, especially when they take on disruptive characteristics and do not seem to be able to adapt to the traditional legislative adaptations of the regulatory provisions already dictated. for at least apparently similar cases.

In addition, new technologies, combined with the effects of globalization, seem to gradually and incessantly enlarge the tangle of possible economic and legal relationships, also eliminating (rectius reducing) the geographical boundaries first and, often, the regulatory ones later[6]. Therefore, many times the regulatory pursuit that the national legislator tries to implement against these new economic realities, does not seem to satisfy the speed required him to respond to market needs. Indeed, new technologies are increasingly entrusted to the lean and uniform regulation of the Union.

One wonders therefore if, when he approaches digital technologies, the national and European jurist is called upon to make a further hermeneutic effort, bearing in mind that it may no longer be sufficient for him to carry out an activity of (albeit difficult) subsumption of the case new in traditional conceptual categories, especially internal ones, but that it may become necessary for him to refer to them only as an instrument of logical passage to reach an innovative legal result.

It should be noted that not everything that is technologically possible must necessarily become lawful[7], so it is essential to know the operating methods of the individual innovative phenomena which the need for exegetical and / or regulatory intervention emanates from, also to define coherent and efficient regulations in relation to the potential application of the mentioned tools and to make common and effective policy-legislative choices in relation to any, and foreseeable, regulatory gaps.

Among the mentioned innovations, certainly blockchain constitutes a still incomplete phenomenon both from an operational and a regulatory point of view. The need to ensure greater certainty for online transactions at various levels has prompted institutions and economic operators to resort more widely to this framework, which has impacted on the general legal framework and has acquired a progressively more central role in the doctrinal debate of recent years. Nevertheless the Legislator, in his various levels of expression, encounters the difficulty of framing the phenomenon and the relationships that arise through this technology, bearing in mind that it, having high potential application, can generate implications that are not yet completely foreseeable or controllable and that it refers to heterogeneous sectors of the market and contract law.

Consider that part of the literature[8] investigating the impact of blockchain on the market, offered two possible alternative answers in the field of economic theories. If blockchain were considered a “general purpose technology”, it would act in many sectors of the economy as a factor in the growth of company productivity while, if it was understood as a technology that, in itself, does not generate production but a new economic perspective , it could be called “institutional technology”. Well, in both cases, blockchain would seem to integrate the requirement of “disruptive” innovation, given that it generates a distortion of market equilibrium, capable of replacing a large part of intermediaries that play the role of “third parties”. In fact, it was argued that blockchain has actually introduced a new way of understanding the economy, which would determine the true and deepest disruptive effect arising from the use of digital technologies, in consideration of the fact that economic systems, based on disintermediation, would considerably implement the efficiency of exchange and production and, finally, of the general economy.

Mutatis mutandis, we ask ourselves if, prospectively, blockchain could integrate a tool for coordinating economic activities and, in this sense, a new type of economic institution that allows to affect some aspects of market capitalism, considering that a register has the function of certifying the state of an economy and changing its organization could change the way we do actions and transactions.It therefore seems necessary to analyze the technological profiles of the framework and to verify if it is possible to trace its regulation back to the current regulatory parameters, with a more precise reference to its most disruptive variations for the law. 2. Classification of blockchain (or “chain of blocks”) in a single and all-inclusive definition area is an arduous task, considering that it can be observed from different and heterogeneous perspectives; however, technically, it can be considered a functional database for management. of encrypted operations (stored on a “decentralized” peer to peer network), accompanied by a timestamp and collected on so-called “blocks”, concatenated and divided in chronological order[9]. Basically, this is neither an application nor an intra-company organization system, but rather a technology that allows the exchange of information and values ​​of various kinds via the Internet through the use of a “public register” (or digital ledger ), managed directly by the individual users of the network, on a global platform[10].On closer inspection, even though it is commonly connected exclusively to cryptocurrency, tracing the blockchain exclusively to the most famous Bitcoin, would reduce its prospect of use, considering that it, indeed, constitutes only its underlying technology. In fact, it is potentially applicable not only to the electronic transfer of money, but also to many other sectors of the exchange, which are now carefully investigated and being tested by economic operators.Indeed, as has been appropriately argued[11], any digital value or virtual asset, any data or information can, under certain conditions, be inserted in an IT structure and, in this way, be the subject of transfer and sharing. In fact, until the emergence of blockchain, it was considered rather peacefully that, in the public sector, only political and economic institutions could impersonate the authority guaranteeing compliance with the rules of correctness of administrative procedures and that, in the private sector, only the so-called third parties (including guarantors as various qualitification, Banks and intermediaries) could appear as instruments aimed at reducing the physiological diffidence that animates market operators, allowing the latter to function in compliance with the rules of certainty and trust between the parties. This configuration of the relationships of law almost inevitably determines, however, a “centralization” of the exchanges, that is the concentration of the control of the execution of the relationships in a single authority or in a single entity. We refer, in particular, to the necessary reliance that the parties of a legal relationship must place in a subject, who would however be free to violate the rules of conduct of which he makes himself “guarantor”. Blockchain, instead, invokes the idea of ​​a single ledger, distributed in copies (rectius in original forms) to a multitude of people and would seem to allow to introduce, effectively, a new logic of governance, based on what it could push to define “objectified trust” between all participants in the system.In this sense, the main innovative effect attributable to the blockchain framework would be found not so much in de-materialisation of currency (as already recognized after Bitcoin introduction), as in the more invasive introduction of the factual possibility of transferring a value units with minimal infrastructure and without the necessary intervention of third parties as guarantors or trustees. This circumstance has substantially made it possible to overcome the traditional concept of trust in the third party, integrating what has been precisely called the disruptive effect of blockchain, in a generalized sense[12].On closer inspection, however, although the cryptocurrency has the attention of economists attracted in consideration of the possibility of overcoming the traditional concept of trust, the technology underlying Bitcoin would seem to find adequate space in other and different sectors of the digital economy and, in particular, in the field of intelligent contracts and B2B distance contracts. In fact, when the operation deposited on blockchain consists of a transaction, the latter consists of an exchange of messages in encrypted code (from pseudonymised users) and a combination between the time stamp and the digital signature: first one allows that the set of messages – validated through the cryptographic process – is communicated and written in the register of all the other nodes on the network and made irreversible, while the second one guarantees that the sender and the recipient of the same messages are identified in a certain way[13].

These operating methods inevitably impact on traditional principles of law; hence the difficult task performed by the interpreter called to evaluate whether or not they are compatible with the existing legal categories. A reconstruction of the operating profiles of blockchain, therefore, is the indispensable premise to investigate the legal consequences that would derive from the application of blockchain to contracts, in order to evaluate the possibility of a dedicated regulatory intervention and the most appropriate regulatory method for the circumstances. 3. At present, blockchain integrates itself in a historical context characterized by the uncontrolled evolution of market logic, which forces economic operators to suddenly adapt themselves to modern operating systems, introduced by technology. And in fact, we are witnessing the rapid spread of the “online platform”, which could rise to the role of ideal type of new production and work methods[14], based on characteristics such as flexibility, disintermediation and allocative decentralization: in this sense, the online platform it seems to constitute an essential infrastructure of the new world economic model and, specularly, of law.The development of a true European Digital Single Market has been a main priority of the European Union[15] during the last years and it will be even more important in the coming ones[16]. To profit from all the potential of the Digital Single Market, it is necessary to this requires high-speed, secure and trustworthy infrastructures and content services, supported by the right regulatory conditions for innovation, investment, fair competition and a level playing field [17].

In this sense, the regulation of DLT through national laws could create a fragmentation of the single market[18], so regulation at European level or at least some kind of address seems a good approach[19]. It must be added that The European Union has global normative influence in other fields related to Information and Telecommunications Technologies such as the privacy sector[20] and could also affect blockchain. As Professor Finck explains, regulation can be an engine for innovation: promoting legal certainty, creating a market for new technology, ensuring interoperability between new technologies and existing legislation and generating trust[21].Nevertheless the EU is also conscious of the problems DLT creates. The European Central Bank received cryptocurrencies with some level of mistrust[22] and the EU had to cover their use with the 5th Anti-Money Laundering Directive[23]. The European Union knows that the use of DLTs deserves particular attention in order to understand whether it raises challenges with respect to traditional concepts and rules of civil and contract law[24] and to weigh its compatibility with the European data protection law[25].However, the European Commission considers that DLT has the potential to bring major improvements to European industry and citizens[26]. So it decided to welcome the advances and aims of positioning Europe at the forefront of blockchain innovation and uptake[27].

The European Commission, in collaboration with the European Parliament, launched the EU Blockchain Observatory and Forum in 2018 and several member States signed a joint Declaration creating the European Blockchain Partnership (EBP) and cooperate in the establishment of a European Blockchain Services Infrastructure (EBSI) that will support the delivery of cross-border digital public services, with the highest standards of security and privacy. These States consider that Europe is well placed to take a global leadership position in the development and application of DLT and will cooperate towards a European ecosystem for blockchain services and applications can avoid fragmented approaches. Such cooperation can also strengthen compliance with regulations and regulatory convergence which is essential to support scalability of such solutions across borders.

The EU also promoted the creation of a public-private partnership in 2019, the International Association for Trusted Blockchain Applications (INATBA) which is a multi-stakeholder organization based in Brussels. It brings together suppliers and users of Distributed Ledger Technologies with representatives of governmental organizations and standard-setting bodies from all over the world.

ESMA also is studying the impact of DLT in two particular area of interest: financial markets and digital values use[28].

The European Parliament[29] in its Resolution of 3 October 2018 on “distributed and blockchain registry technologies: building trust through disintermediation” (P8_TA-PROV (2018) 0373), stresses the Commission needs to undertake an in-depth assessment of the potential and legal implications, including the risks related to jurisdiction; and calls on the Commission to promote the development of technical standards at with relevant international organizations, and to conduct an in-depth analysis of the existing legal framework in the various Member States in relation to the enforceability of smart contracts. It also notes that legal certainty can be enhanced by means of legal coordination or mutual recognition between Member States regarding smart contracts.The European Commission is therefore working to study whether the current legal framework is clear enough to ensure the enforceability of smart contracts and clarify jurisdiction in case of legal disputes[30]. In the coming years, the European Commission has pledged to invest in blockchain and jointly define standards for this new generation of technologies, that will become the global norm[31].In light of the phenomenal dynamism highlighted by digital technologies in general, and by blockchain in particular, it seems essential that the European sector authorities are placed in the position of being able to ensure, in terms of concreteness, adequate protection for the interests of users of the services.In fact, while innovative phenomena such as the aforementioned digital platforms or even the sharing economy in general, are explored both by the national Legislator and by the Community authorities, already creating sufficient discipline to deal with the contractual reality, the blockchain regulation still lags behind on the European and Italian regulatory scenario.

3.1 Indeed, the initiatives taken at European level with reference to blockchain, in the opinion of the writer, although suitable for demonstrating supranational attention to the phenomenon, are only the first steps towards a right direction. They should also be specifically aimed at strengthening the digital single market, which is a priority of the Union’s policies[32]. The latter, in fact, has always been oriented towards ensuring a unique and balanced context, regardless of the business model chosen by the individual operator, with a view to the good performance of the market in a global sense. And in this sense, the centrality of information technologies and online services as catalysts for economic growth and innovation has been recognized and the adoption of blockchain technology as a tool capable of facilitating economic relations is supported. However, it is necessary to deal with the European regulatory gap regarding a satisfactory definition of the blockchain framework, outside the regulation of just some application aspects of the same. Among other results, the Resolution of 3 October 2018 identifies a real ecosystem of DLTs, based precisely on self-sovereignty, identity and trust but, regarding the application of technologies to contracts, highlights the need for the European Commission to carry out an in-depth assessment, given the legal implications that would derive from it, such as, for example, with regard to the applicable jurisdiction. And, in fact, the source in comment highlights that it is necessary to promote a general legal framework that recognizes smart contracts and eliminates their obstacles to functioning.On the bridging of the first reflections, matured in European headquarters, Italy has also decided to take further steps in the direction of digital progress. In fact, on October 15, 2018, the Council of Ministers had already, at first reading, approved the full text of the draft law that would flow into the so-called Simplification Decree, containing, among others, a provision on digital technologies and on blockchain.

The need to adapt to the digital progress of data and contracts could have, in this sense, inspired the regulatory proposal put forward by the Ministry of Economic Development in terms of technologies, with the aim of introducing an initial regulation of the matter in question, according to the indications coming from the EU Commission in April 2018 and from the aforementioned Resolution of 3 October[33]. The proposed legislation on the validation of data with blockchain, following a rereading of the advanced proposal, finally came together in art. 8ter of Legislative Decree 135/2018 – converted into Law no. 12/2019 – entitled “Technologies based on distributed registers and smart contracts“. The rule appears interesting because it had the advantage of providing a first legal framework of blockchain and smart contracts phenomena, which, coordinated with the provisions of the V (fifth) Anti-Money Laundering Directive (Dir. (EU) 2018/843) and with the reports prepared by Banca d’Italia has made Italy one of the first countries to have embarked on a regulatory path of the innovative phenomenon, which does not seem further negligible by the Legislator, at various levels.Moreover, Italy has long since shown that it is particularly attentive to modernization processes in the digital sense. We have regard to the entry into force of the Presidential Decree 513/97[34] or the introduction of the so-called “Digital Administration Code” (Legislative Decree 82/2005), amended several times[35]. Therefore, the draft law which has just been taken into account and the subsequent Law 12/2019, constitutes part of a regulatory procedure favorable to the requests coming from modern innovative techniques[36].

It is clear, however, that the identification of a body of rules in step with the constant change of the digital sector, requires the Legislator to abandon the traditional operational logics that it has used up until the recent past[37]. Instead, the legislative initiative undertaken confirms the regulatory gap of some crucial blockchain applications, particularly in the negotiation field, which is still too far from adequate regulation. In fact, adapting the traditional paradigms of private law to those determined by blockchain would mean introducing into the system of national law substituting IT systems of the ordinary methods of perfecting / executing mandatory relationships. Therefore, as has been authoritatively highlighted[38], the Blockchain would mark a “moment of fundamental technological discontinuity” in that, constituting a network for the exchange of value, it is substantiated in a trustless technology[39]; so, in the absence of a clear disciplinary framework on the matter, it seems to operate as a transnational private system based on the so-called widespread consensus as a “socially typical” instrument, not yet standardized, for the exchange of wealth and the improvement of negotiation agreements.From this, it can be deduced that, at the disciplinary level, much still needs to be done to reach the goal of establishing a digital single market through the use of new technologies and of blockchain in particular, bearing in mind that, as claimed in the most recent literature[40], this architecture it seems to attract economic operators at all levels considering the objective of simplifying processes and reducing trade costs.

4. To consider well, blockchain use in agreements’ field[41] would allow us to offer new ways through which to produce, render services and exchange values, taking into account that it brings with it disintermediation[42], transparency, decentralization of consent and greater certainty in the performance of services. In the aforementioned perspective of so-called process simplification and cost reduction, smart contracts[43] would seem to be the ideal application field for the development of blockchain technology, in account that they consist of computer protocols capable of autonomously executing the programmed terms, once certain predefined conditions are satisfied[44]. In this way, it is possible to transpose a legal transaction into a computer code, so that following the fulfillment of certain pre-established conditions, the system will automatically execute the transaction[45]. In other words, the code “reads” the agreed clauses and the corresponding IT conditions, then verifying that the data referred to the real situations correspond to those entered within the agreements made[46].

As doctrine highlighted, therefore, it could be said that: “blockchain constitutes the track, where smart contracts are the wagons of the train in which the goods / services (called data feeds) that circulate are contained[47]. It brings with it: disintermediation, decentralization of consent, transparency and pseudonymisation, characteristics that could make blockchain technology considered the fifth disruptive paradigm of computing hera. In this sense, consider that the advent of the Internet had already produced a disruptive effect by transforming the traditionally passive function of the average “user”, tending to be limited in his access to information, into a fully “active” function, free to move in a network that provides for a growing interaction between subjects of different nature, subsequently succeeding in erecting itself also as a model of exchange.

To verify the lawful of blockchain use in the negotiations’ context, consider that, with the use of its system, the fulfillment of the obligation assumed by A is inseparably linked to the fulfillment of the obligation of B and (that) the executions of obligations tends to occur simultaneously[48], so the risks associated with the so-called chargeback frauds would be prevented, because a contractor cannot, for example, cancel a payment after receiving the goods. It’s belived that the smart contract concluded via blockchain would be able to give the agreement a greater degree of certainty[49] and security than a traditional contract. It is believed[50] that this may also allow us to overcome interpretative problems linked to the ambiguity of natural language, thus making the provision of traditional systems for strengthening contractual guarantees superfluous. In this regard, the positive effects that derive from it in terms of simplification of negotiations and savings in the general economy, as well as prevention with respect to the use of third parties (including judicial protection) or intermediary service providers are clear[51].

The application of blockchain technology to smart contracts generates even more disruptive effects, connected to the disintermediation of the market, as the negotiation relationship is capable of self-management and self-execution without external influences or interventions and without the use of third parties. In fact, it completely “confided” in the unchangeability and veracity of the data entered in the system, according to the IT functioning mechan   ism described[52].It is also evident how blockchain can significantly affect contractual relationships in which the trust in the  behavior of the negotiating parties takes on an important role in assessing the correct execution of the operations done[53].

In fact, while traditionally the execution of the shop is remitted to an exogenous variable to the negotiation device, depending on the unpredictable behavior of the contracting parties concerned, the blockchain’s operating mechanism is instead capable of eliminating the risks of default of obligations, of double spending and contractual fraud, with obvious advantages for the parties involved and more generally for marketplace[54]. There is an operating system which, by innovating part of the ordering criteria of traditional  contracts, can be a valid tool to deal with the known critical issues in negotiation relationships characterized by information asymmetry in which, in the face of a contractor with specific technical knowledge, the position of who (the consumer) is not in possession of adequate notions is found[55].Blockchain would seem to allow, therefore, to overcome the risks associated with the traditional performance of the contractual synallagma; on the other hand, it presents certain problematic profiles that require careful reflection[56] by the interpreter[57].

There is, in fact, preliminary questions about the need that contracts concluded through the blockchain structure should present those essential elements, legally provided under penalty of its nullity and, subsequently, whether the latter are easily identifiable in the system[58].Moreover, it should be highlighted how the “electronic” form, while being abstractly able to replace the paper form, may not make it easy to access the relevant information of the shop for unpractical contractors[59]. This danger is not only in the physiological phase of the agreement (essentially due to the technical-digital inexperience of the parties), but also in the pathological one and, specifically, in legal procedures (taking care to the possible difficulties in contractual agreements interpretation by jurisdiction). It is clear, however, how this circumstance is possible and, in any case, temporary, taking into account the progressive diffusion of the technological phenomenon in question.In other perspective, it should be highlighted how the immutability of blockchain code, as well as the rigidity of the criteria used for its creation, could be an obstacle to the full expression of the decision-making freedom of the negotiating parties[60].

We refer to the fact that the stability and certainty, deriving from the application of the technology in question, prevents the contractors from resorting to the decision-making discretion inherent in the transaction’s execution phase, being able to exclude any modification of the concluded deal. In light of what has been said, it is essential that the Legislator identifies the boundaries in which this type of agreement can validly operate and this with the aim of determining, in particular, the hypotheses in which parties can conventionally derogate from the general discipline. It would also seem appropriate to analyze, and consequently regulate, whether it is appropriate that blockchain really embraces a complete decentralization and disintermediation, completely self-referentially given and, therefore, without an adequate centralized regulatory or administrative control system[61].

It is also necessary that the jurist questions the opportunity to allow blockchain to be the basis of a model for complex contractual operations, managed by numerous variables or by multiple combination mechanisms of the same. Indeed, in some cases, the difficult compatibility of technology in question with the negotiating structure is clear. We refer, for example, to the hypothesis of contracts concerning objectively complex obligations, such as “alternative” obligations: the plurality of performances, alternative to each other, in fact, represents a case in which, since the beginning, object of the obligation is not fully determined. In this case, the right of choice (about the performance) refers to one of the parties and, from the conclusion of the contract, it is delayed to the executive phase of the deal[62]. The uncertainty that characterizes the moment before the concentration of the object of the obligation could, therefore, badly adapt because of its nature to the rigid and immutable system of blockchain, which would instead be more easily compatible with simple bonds (or, at the most, cumulative), the whose obligations are determined in advance, certain and irrevocable. Another example of a contract model, apparently not very similar to the use of blockchain, could be the “trusty contract”, the content of which cannot be easily reduced to automated expressions of will, because the performance is intrinsically subject to the broad discretion of the contractor and to the creation of the so-called indirect purpose.

Blockchain technological system, in fact, could validly replace the contractual fides, which  traditionally placed in the person of the other contractor[63], but it does not seem easily conceivable could replace the cause (rectius the content) of the own contract or of its execution according to good faith. Far from analyzing the controversial theoretical reconstruction of the causa fiduciae (for those who admit its existence), it is necessary, however, to specify that, in trusty contract, the purpose actually pursued by parties is certainly indirect and left to the internal pactum fiduciae, which has validity between so-called “settlor” and “trustee”. Therefore, blockchain does not seem suitable, at first analysis, to meet the needs pursued by the trusty negotiation model, precisely aimed at widening the positive law’s tangle, to achieve concrete objectives further than the typical negotiation schemes adopted, and left to discretion. operational of the contractor, which is thus covered with greater intensity[64].

5. Peculiarities that, without claiming to be exhaustive, have been attempted to trace concerning blockchain enforceability to negotiations raise more than one reflection, due to the potential availability of this framework in crucial sectors of law and of market, as well as its strong attitude to cross national borders, assuming the typical characteristics of the global phenomenon[65]. In fact, despite the significant level of consensus that the most varied potential of  blockchain find at institutional level, it has not yet been the subject of a regulation dedicated to contracts, but just of some national regulations, aimed at legitimizing the certification of concluded transactions ” through “the network[66].Add to this that the required use of a modern computer language, replacement the more generally usable traditional one, and the rather embryonic legal-institutional status in which blockchain stands, prevent the identification of a commercial practice or, even, a lex mercatoria to fill (more or less temporarily) the current legislative gap[67].Given that the Italian legal system has already, with the aforementioned Simplification Decree, taken the first steps towards a wider recognition of the technology in question and which has not, however, prepared an effective disciplinary system to deal with the disruptive impact of blockchain use in the private negotiation sector at national level, the possibility of concluding and interpreting contracts, through it, currently seems to require an exegetical activity that is still highly cumbersome, as it is anchored to traditional legal paradigms. Therefore, the first question that arises, after a careful analysis of the operational characteristics of the framework, is whether the approach that the institutions have adopted with respect to blockchain and, in a broader sense than all the most recent innovative phenomena, is appropriate or if, however, it requires renewal.

We refer, in particular, to the alternative between the use of interpretation tools to bring the phenomenon in question back to pre-existing categories of law and the opportunity to prepare a new regulatory instrument.As also underlined by the doctrine[68], at this historical moment the disciplinary gap in question seems to translate into the dichotomous alternative for Institution at every level, between ius conditum, i.e. the legislative choice to bring the discipline back to it in terms of the categories in force, and ius condendum, i.e. the choice of policy regulatory interventionist, for a possible specific regulation of the phenomenon.At present, as well as above highlighted, it could be stated that blockchain shows itself as a “socially typical” economic prototype ascribable to so-called “Jus-realistic” conception of law, which woul look for a new and more appropriate regulatory scheme for this phenomenon, whereas the jurist’s current approach to regulate this phenomenon seems to adhere to juris-formalist perspective, as it is still aimed at subsuming the phenomenon to current law. In this second contest, we ask ourselves provocatively if, in the future, the legislative gap could drive to ascribe blockchain among the sharing economy tools, because of the only common purpose of disintermediation and substantial (indirect) collaboration between users and, consequently, if this could lead to finding analogies with the regulations intended for those, different, innovative and technological phenomena and tools, in legal-formal perspective currently pursued by the legislative authorities.Actually, a specific regulatory intervention may be more than desirable, in light of the transnational character of blockchain, of its intrinsic no-territoriality, as well as of the prudent approach of economic operators in the use of unexplored and non-standardized technology[69]. More specifically, we refer to the evaluation of a regulatory proposal at European level, even more than at the national level[70] considering that, as stated by the most recent EBA report regarding to the related issue of cryptocurrencies, it would be important to provide an answer from European Union on the impact that technologies have on crucial sectors of trade.

The reflection gained in relation to the cryptocurriences should in fact be extended to the negotiation sector taking into account that, as also stated by the doctrine[71], a market that aspires to become unique, like the digital one, necessarily requires rules as common as possible, often released from regulatory responses national, especially in consideration of a technology with free and potentially infinite access[72].Instead, at present, the normative absence applicable to transactions concluded on blockchain could result in the use of contractual freedom precept, which constitutes a typical choice of liberal and liberal systems. However, returning it the idea of ​​a mere ex ante choice of deal parties in order to regulate the law of the relationship (and its consequent jurisdictional court) it would risk not to solve the problem of uniform preventive regulation, but to shift the critical issues of the negotiation to a moment prior to the conclusion of the deal via blockchain. More specifically, it would replace the rules of validity, of the mere rules of “economic behavior“, also taking into account that blockchain is based on shared consent, which does not even requires you to investigate the correctness of the data entered on the net.

Authors

Ana Gascòn Marcèn is Profesora Contratada Doctora Interina – Área de Derecho Internacional Público y Relaciones Internacionales – Facultad de Derecho -Universidad de Zaragoza.

Claudia Marasco is Ph. student at Università degli Studi di Napoli Parthenope.

Although this article is the result of a joint reflection of the authors, Claudia Marasco wrote the paragraphs 1, 2, 3.1, 4, 5 and Ana Gascòn Marcèn wrote the paragraph 3

[1] See: M. Giuliano: “La blockchain e gli smart contracts nell’innovazione del diritto del terzo millennio”, in “Il diritto dell’informazione e dell’informatica”, Review, 2018, pp. 989 – 1039; V. Frosini: “Temporalità e diritto” in “Riv. dir. civ.”, 1999 p. 431 ff; E. Resta “Il tempo e lo spazio del giurista” in “Scienza e diritto nel prisma del diritto comparato”, (by) G.- Commandè and G. Ponzanelli, Torino, 2004 p. 253 ff. in A. Alpini: “L’impatto delle nuove tecnologie sul diritto” in “Comparazione e diritto civile“, Review, 2019.

[2] M. Giuliano: “La blockchain e gli smart contracts nell’innovazione del diritto del terzo millennio”, in “Il diritto dell’informazione e dell’informatica”, 2018, p. 989 – 1039.

[3] These are technological tools that have the purpose of guaranteeing immutability, security and integrity of facts put in the network, without the need to resort to specific certification authorities of this in charge. In particular, the concept is an evolution of “decentralized ledger” which, commonly and generally, indicates a phenomenon of decentralization of information, in the sense that the latter tends to no longer be guarded or managed necessarily by a single central authority: in fact, the technological scenario seems to offer new alternatives to sharing information. The innovation has precisely evolved, introducing the “distributed ledgers” (which characterizes, among others, precisely the blockchain).The Distributed Ledgers Technologies or DLT are, therefore, a set of technological tools, characterized by referring to a “shared register”, governed to allow access and, to multiple nodes of the network, the possibility of making changes (cf. M. Bellini: “What the Distributed Ledgers Technology – DLT Blockchains are and how they work”, available on http://www.blockchain4innovation.it).

[4] But, see “Discussion Paper” par. 4 ESMA, 2 juny 2016 and Report ESMA 2017 “Report on Distributed Ledger Technology Applied to Securities Markets. Reference“, which describes DLT and blockchain as partially different phenomena.

[5] In this sense, careful teaching highlighted that the option of disavowing the digital reality, (expression of a purely censorious approach, typical of the mode of action of authoritarian countries for example) while being an abstractly possible alternative, is impracticable for liberal democracies , not only for reasons of adherence to the constitutional data, but also for the impossibility of financially supporting this choice. See, A. Gatti: ” Istituzioni e anarchia nella Rete. I paradigmi tradizionali della sovranità alla prova di Internet “, in “Diritto dell’informazione e dell’informatica” (II), fasc. 3, 1 June 2019.

[6] So much so that, with reference to the replacement of the geo-political borders with a digital space without delimitations, there has been talk of a national “sovereignty crisis”. In this sense, cf. A. Gatti, cit. at 712 ff.

[7]  See U. Galimberti: “Psyche and techne – L’uomo nell’età della tecnica“, Milan 1999, in G. Pascuzzi, cit. at 990.

[8] Cf. S. Davidson, P. De Filippi and J. Potts, in: “Blockchain and the economic institutions of capitalism“, in Journal of Institutional Economics, vol. 14, Issue 4, 2017.

[9] The database so developed is said to be decentralized (or “distributed”) because it is not controlled by any top authority or specific unitary company. It is not physically kept on a single machine but it is placed on each of the devices connected to the same platform; so the information circulates quickly and cannot be modified, without prejudice to the need to ensure that it is kept on copy on the personal computers of all users (see M. Beauty: “Blockchain “, in” Fintech “by Paracampo, page 220 ff). For a more detailed examination of the technology and a technical analysis of its components see, among all: M. Pilkington: “Blockchain Technology: Principles and Applications” (September 18, 2015), in “Digital Transformations“, edited by F. Xavier Olleros and Majlinda Zhegu. Edward Elgar, 2016. Available on SSRN: https://ssrn.com/abstract=2662660.See also: O. Rikken (Smart contract Working Group – Dutch Blockchain Coalition) in “Smart contracts as a specific application of blockchain technology“.

[10] Cf. ex multis D. Tapscott and A. Tapscott: “Realizing the Potential of Blockchain. A Multistakeholder Approach to the Stewardship of Blockchain and Cryptocurrencies”, White Paper commissioned by World Economic Forum, june 2017; C. Bomprezzi “Blockchain e assicurazione: opportunità e nuove sfide”, in “Diritto Mercato Tecnologia”, 7 july 2017; F. Rundo and S. Conoci “Tecnologia blockchain: dagli smart contracts allo smart driving” on “Sicurezza e Giustizia” III / MMXVII p. 52; M. Bellezza “Blockchain” in “Fintech”, Paracampo (by) at 220 ff.

[11] Cf. P. Cuccuru: “Blockchain ed automazione contrattuale. Riflessioni sugli smart contract“, in Nuova giur. comm.1, II 2017, p. 110; M. Iansiti – K. R. Lakhani: “The truth about blockchain” in Harward Business Review, jan-feb 2017, at 4, available on https://enterprisersproject.com/sites/default/files/the_truth_about_blockchain.pdf.

[12] On this topic see ex multis: P. Cuccuru cit.; G. Castellani: “Smart contract e profili di diritto civile“, available on http://www.comparazionedirittocivile.it.

[13] Cf. M. Bellini available on https://www.blockchain4innovation.it/esperti/blockchain-perche-e-cosi-importante/#Le_logiche_di_funzionamento_della_blockchain.

[14] A. Palladino: “L’equilibrio perduto della blockchain tra platform revolution e GDPR compliance” in Medialaws.eu, at 147.

[15] One of the ten priorities that Jean-Claude Juncker set for his mandate as President of the European Commission between 2014 and 2019 was to create a connected digital single market, see Jean-Claude Juncker A new start for Europe. Opening statement in the European Parliament plenary session, Strasbourg, 15 July 2014.

[16] One of the six priorities of the European Commission for the 2019-2024 period is to create a Europe fit for the digital age. Ursula von der Leyen, A more ambitious Union. My program for Europe. Political Guidelines for the Next European Commission 2019-2024, avaiable on: https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_it.pdf

[17] See the Communication from Commission to European Parliament, Council, European Economic and Social Committee and Committee of Regions. Strategy for the digital single market in Europe COM (2015) 192 final Brussels, 6.5.2015, at 3.

[18] Cf. The European Union Blockchain Observatory and Forum, Legal and regulatory framework of blockchains and smart contracts, 2019, on https://www.eublockchainforum.eu/reports.

[19] In this sense, the latest developments in Spain are an interesting example. The sixth additional provision of the Real Decreto-ley 14/2019, de 31 de octubre, por el que se adoptan medidas urgentes por razones de seguridad pública en materia de administración digital, contratación del sector público y telecomunicaciones establishes that, in the relations of natural or legal persons with the public Administration, identification systems based on distributed registration technologies are forbidden as long as they are not subject to specific regulation by the State within the framework of European Union Law. This intervention is justified on a provisional basis until progress is made within the European Union in the treatment of such technologies.

[20] See the extraterritorial application of European Union’s General Data Protection Regulation and the convergence trend towards European standards at a global level exemplified by States such as Brazil, India, Japan or South Korea or the protocol modernizing Council Convention of Europe on the protection of individuals with respect to the automated processing of personal data (ETS 223). See M. Goddard: “The EU General Data Protection Regulation (GDPR): European regulation that has a global impact” in International Journal of Market Research, vol. 59, no 6, 2017, p.703-705.

[21] Cf. M. Finck, Blockchain Regulation and Governance in Europe, Cambridge University Press, 2018.

[22] Joint Research Center, Blockchain now and tomorrow. Assessing multidimensional impacts of distributed ledger technologies, European Commission, 2019.

[23] Directive (EU) 2018/843 of European Parliament and of  Council of 30 May 2018 amending Directive (EU) 2015/849 relating to the prevention of the use of the financial system for money laundering or terrorist financing purposes and amending Directives 2009/138 / CE and 2013/36 / UE, GUUE L 156 of 19.6.2018, p. 43-74.

[24] European Commission, Staff Working Document on the free flow of data and emerging issues of the European data economy Accompanying the document Communication Building a European data economy, SWD(2017) 2 final, at 45.

[25] M. Finck, Blockchain and the General Data Protection Regulation. Can distributed ledgers be squared with European data protection law, European Parliament, 2019.

[26] https://ec.europa.eu/digital-single-market/en/blockchain-technologies.

[27] European Commission, European Blockchain Strategy. Share. Build. Deploy. Available on: https://ec.europa.eu/digital-single-market/en/news/european-blockchain-strategy-brochure

[28] ESMA. Report. The distributed Ledgers Technology applied to securities Markets, 50-1121423017-285, 7 FEB 2017.

[29] Also European Parliament resolution of 13 December 2018 on blockchain: a forward-looking commercial policy.

[30] https://ec.europa.eu/digital-single-market/en/blockchain-technologies A ‘Study on Blockchains: Legal, Governance and Interoperability Aspects‘ has been launched to examine the legal and regulatory aspects and socio-economic impacts blockchain-inspired technologies.

[31] Ursula von der Leyen, “Un’Unione più ambiziosa. Il mio programma per l’Europa. Orientamenti Politici per la Prossima Commissione Europea 2019-2024”, at 14, available on: https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_it.pdf

[32] Cf. E. Macchiavello and A. Sciarrone Alibrandi: “L’inquadramento giuridico delle attività svolte dai lending marketplace. Linee di fondo”, in “Quaderno FinTech “, “5/2019, Consob, at 28 ff.

[33] Indeed, the original text proposed by Ministry of Economic Development, at second reading, had been approved in a “reduced” form on December 12, 2018 deleting, among other things, the proposed legislation regarding the validation of data with blockchain, whose legal reasons have been hypothesized. A first motivation, of a technical character, could have been found in the legal character of the potentially introductory regulatory act of the Blockchain discipline: the Simplification decree, in fact, took the form of a decree-law, as such endowed with the profiles of necessity and urgency which, could not have been glimpsed relative to the introduction of a discipline on the Blockchain. Secondly, the proposal could probably clash with the overall national regulatory framework which, in order to consider electronic time validation qualified, required the intervention of the so-called “Trust service providers”, completely absent in case of blockchain with strong decentralization.

In fact, as has also been pointed out, the applications of Distributed Ledger Technology are extremely various and their use could have required a degree of evidentiary certainty higher than that conferred on them by the Simplifications decree. In fact, it had been highlighted that, at least in the case of permissionless blockchain, these technologies do not use, for the purposes of time stamping, data recorded in them of the certified electronic time validations issued by trust service providers (third parties), for which the main The effect of the rule to be introduced would have been to allow the probative use of the information recorded without certifications, it being understood that, in the event of a dispute, it would remain the burden of the person who produces it that of demonstrating the reliability of the date and time to linked to them and the integrity of the data they contain. (See, ex multis, article signed by M. Cavicchioli: “Decreto Semplificazioni 2019: la decisione su blockchain fa discutere” available in http://www.cryptonomist.it)

[34] The DPR n. 513 of 10 November 1997 dictated the: “Regolamento contenente i criteri e le modalità di applicazione dell’art. 15, comma 2, della legge 15 marzo 1997, n. 59, in materia di formazione, archiviazione e trasmissione di documenti con strumenti informatici o telematici”. On this point, as argued by G. Finocchiaro in: “Il contratto nell’era dell’intelligenza artificiale” Riv. Trim. “Diritto e procedura civile” June 2018 at 441 ff., the Italian Legislator would have considered introducing a definition of a computer document to break down a cultural conditioning that leads to think of the document as necessarily paper support.

[35] For a more complete investigation into the state of the art in Italy with reference to the legislation on technological innovation, see: E. Macchiavello and A. Sciarrone Alibrandi: “L’inquadramento giuridico delle attività svolte dai lending marketplace. Linee di fondo”, in “Quaderno FinTech “, “5/2019, Consob, at 28 ff.

[36] See M. Bellini: “Che cosa sono e come funzionano le Blockchain Distributed Ledgers Technology – DLT” available on http://www.blockchain4innovation.it

[37] For an overview on the state of digitization of Italy in Europe cf. Digital Economy and Society Index (commonly called DESI) Report 2018 where, among other things, the results of the digital performances of the European States and their progress are reported, which place Italy, indeed, in the last places together with Romania, Greece and Bulgaria as regards the integration of digital technologies, connectivity, use of the internet and digital public services.

[38] Cit. M. Bellezza: “Blockchain”, in “Fintech” Paracampo (by) at 222.

[39] Cit. M. Faioli, E. Petrilli, D. Faioli: “Blockchain, contratti e lavoro. La ri-voluzione del digitale nel mondo produttivo e nella PA” in “Economia&Lavoro”, october 2016, at 139

[40] Cf. G. Castellani: “Smart contract e profili di diritto civile“, available on http://www.comparazionedirittocivile.it

[41] In arg. see also: A. ALPINI, “L’impatto delle nuove tecnologie sul diritto”, 2018, available on http://www.comparazionedirittocivile.it; F.COSTANTINI: “Intelligenza artificiale e diritto civile. Verso una “artificial intelligence forensics”?”, in G. Costabile, A. Attanasio, M. Ianu-lardo (by), IISFA Memberbook 2017 Digital forensics: Condivisione della conoscenza tra i membri dell’IISFA Ita-lian Chapter, Roma, 2017, Roma, at 17 ff.

[42] Indeed, it should be noted that disintermediation term was already used in United States during the 1960s to describe economic dynamics according to which first conscious savers gave up leaving their money on a current account, “disintermediating” the bank through own autonomous investment choices, especially in pension funds and small bond packages. Therefore, starting from that historical moment, the phrase in question has taken full value in its transitive verbal dimension, being used to refer to the process of removing a physical (intermediary) or technical entity (obstacle) from any type of production path, as an expedient to bring speed and rationality back into a production path that underwent significant expansion under the aegis of globalization. See A. Belloni, Uberization, Milan, 2017, 40, note in A. Palladini, cit. at 145.

See also “Quaderno Fintech” 5/2019 Consob, cit., at 28 f., about the disintermediation of technological phenomena and in particular of online platforms.

[43] For a deeply study on smart contracts origin, see N. Szabo: “Formalizing and securing relationships on Public Networks“, in “First Monday” n. 9 vol. 2, September 1, 1997, which coined the term, using it to indicate a computerized transaction protocol that executes the terms of an agreement. Furthermore, in the two papers (“Formalizing and Securing Relationship on Public Networks” and: “The Idea of ​​Smart Contracts“) he theorized a distributed network made up of subjects identifiable only through digital pseudonyms, in which cryptography was used to put safely and have contractual agreements automatically executed. In other words, Szabo is to be considered the pioneer of blockchain smart contracts. In 1998 these insights were reworked in a third paper, entitled: “Secure Property Titles with Owner Authority” (cit. C. Bomprezzi, cit. at 17).

[44] P. Cuccuru, cit. at 110.

As IT algorithms that perform what they are programmed for, smart contracts can technically also automate non-legal services (such as business processes). For further details in arg., Cf. O. Rikken (Smart contract Working Group – Dutch Blockchain Coalition) in “Smart contracts as a specific application of blockchain technology” at 12 ff, but also C. Bomprezzi cit., at 16; D. Di Sabato: “Smart contracts: robots that manage contractual risk“, in “Contratto e Impresa“, 2017, at 378 ff.

  1. Bravo, on the other hand, defined the smart contract as “cybernetic contract”, not considering it a legal category (in: “From telematic bargaining to cyber bargaining”, Milan, 2007). See I. Caggiano: “The contract in the digital world”, in “The contract of the third millennium. Dialogue with Guido Alpa” by L. Gatt, Scientific Publishing Naples, 2018, at 61.

[45] For a definition of smart with contractual content see also P. Cuccuru: “Blockchain ed automazione contrattuale. Riflessioni sugli smart contract” at 111, which literal reports: “In concreto, gli smart contract sono agenti indipendenti ai quali viene affidato un certo patrimonio digitale che viene gestito in conformità alle istruzioni fornite dal programmatore. Una volta inclusi nella Blockchain, gli smart contract operano seguendo le regole pre-impostate fino al raggiungimento dell’obiettivo stabilito o all’esaurimento delle risorse delle quali sono dotati. Il loro protocollo ricalca, semplificando, lo schema causale “se x allora Y”, che nella forma base ricorda una sorta di distributore automatico”.

  1. Bravo defined smart contract as “cybernetic contract” in: “From telematic bargaining to cybernetic bargaining“, Milan, 2007, since it would not be a legal category. See “The contract of the third millennium. Dialogue with Guido Alpa” by L. Gatt, Scientific Publishing Naples, 2018, at 61.

[46] M. Bellini: “Smart contract: che cosa sono, come funzionano, quali sono gli ambiti applicativi” available on http://www.blockchain4innovation.it, updated on 27 dec 2018.

[47] The operative scheme appears, in itself, simple, because: “to an order X corresponds a consequence Y“, predefined by the parties, but use of the blockchain to contracts results in a cd. disruptive effect, which manifests itself as “fattore endogeno, non determinabile, non assolutizzabile e non completamente valutabile al giorno d’oggi, ma già incisivo per molte relazioni commerciali e, quindi, anche giuridicamente rilevante, come si può dedurre dalle sue prime applicazioni, che in seguito tenteremo di analizzare”. See,: M. Faioli, E. Petrilli, D. Faioli: “Blockchain, contratti e lavoro. La ri-voluzione del digitale nel mondo produttivo e nella PA” in “Economia&Lavoro”, oct 2016, at 140.

[48] P. Cuccuru, cit. at 112 ff.

[49] It is appropriate to point out that also “timestamp” use, affixed to the transaction via blockchain, gives “formal” certainty to the execution of the content of the agreement, being able to prevent any difficulty deriving from any historical contradictions. See P. Cuccuru, cit. at 112.

[50] P. Cuccuru, cit. at 112; but also: V. Pasquino, cit. at 245. Contra, cf. I. A. Caggiano, cit.

[51] As regards the advantageous aspects of blockchain, also M. Faioli cit., at 140 ff.

[52] On closer inspection, contractual automation in general is already applied to some areas of negotiation; we refer, in particular to the financial sector, in which we speak about “algorithmic negotiation” and “high frequency algorithmic negotiation”. See I. A. Caggiano, cit. at 66, as well as Directive 2014/65 / EU (MiFID II), arts. 4 and 17.

[53] See also G. Chiodi: “La funzione sociale del contratto: riflessioni di uno storico del diritto”, at 153.

[54] See V. Pasquino: “Smart contract: caratteristiche, vantaggi e problematiche” Riv. Online “Law and Trial”; D. Di Sabato, cit.

Since 1997, European Legislator has tried to promote trust between deal parties in distance or in “electronic” commerce, until the issue of EU Reg. No. 910/2014 commonly called “eIDAS”; cf. in this sense and for further information G. Finocchiaro: “Il contratto nell’era dell’intelligenza artificiale” Riv. Trim. “Civil law and procedure” 1 June 2018 at 441 ff.

[55] For a detailed study on evolution of the contract formation process cf. A. Urso “Autonomia privata e procedimento di formazione del contratto”, in “Persona e Mercato – Materiali e commenti”, n. 3/2010 at. 58 ff.

[56] M. Nicotra: “Smart Contract ed obbligazioni contrattuali: formalizzare il codice per assicurare la validità del contratto”, available on http://www.blockchain4innovation.it 3 july 2018.

[57] P. Cuccuru cit. at 113.

[58] Mutatis mutandis, it would be interesting to analyze N. Irti: “Scambi senza accordo” 1998 (“Riv. trim. dir. proc. civ.”, I/1998, at 347-364), where the Author highlights precisely, following the evolution of technology, the inexorable transformation of the “dialogue” between the parties to the agreement, as a constituent element of the contract, to the point of breaking “…nella solitaria unilateralità di due decisioni…”(at 359). In the same sense, see I. A. Caggiano, cit., at 68 f.

[59] V. Pasquino, cit. at 246; P. Cuccuru cit. at 113.

[60] Consider, for example, the use of self-protection mechanisms: the termination, in the event of a defect, fraud or abuse of the right, or all subjective behavior necessarily external and / or prior to the formation of the contract that would invalidate its validity or ‘execution; think also of the management of events that occur that justify the use of withdrawal or, again, compliance with legislative policy rules, as in the hypothesis of a smart contract that automatically and against payment issues material stored on the network that violates the legislation in terms of privacy. In this sense, cf. also P. Cuccuru, cit. at 116, but also V. Pasquino cit. at 244 f.; I.A. Caggiano, cit. at 67 ff. with reference to the problem of the imputability of decisions.

[61] On this argument, it is hardly necessary to mention that, in front of the spread of the Internet and its search engines, as a new “place” for the exchange of information and wealth, the Legislator preferred to adopt minimal legislation, giving ample space to the self-regulation of the market and users.

[62] Given that the alternative obligation structure is not peaceful and that it falls outside the discussion in question, see Bianca “Diritto civile” vol. IV Milan, 1998 at 128, Di Majo-Inzitari in Enc. Dir. Vol. XXIX, 1979, at 212, sub-item “obbligazione alternativa”, which argue that alternative obligation requires a choice of the service to be performed and, therefore, a r moment of determination further then simple obligation, to fulfill .

[63] In fact, as authoritatively said by F. Moliterni in “Commercio internazionale, letters of indemnity, bills of lading (o polizze di carico) e sistema di circolazione e regolamento delle eletronic bills of lading: suggestioni dal modello dei sistemi di pagamenti elettronici <<istantanei>> peer to peer e dal modello del sistema blockchain”, in “Diritto del Commercio Internazionale”, fasc. 1, 1 marzo 2018, at 85, in a complex commercial network, the reasons for trust stand in rules inherent in real and personal and social networks and in their selection system based on reputational merit and on the golden rule of absolute respect for principles of contractual solidarity which, in the western world, would translate into the clause general of good faith.

In the “informal system” of commerce, based on reputational merit, violation of golden rules and betrayal of reasonable assignment of counterparties would entail the tendential exclusion of that operator from the commercial network system.

[64] Consider, in fact, that trustee could choose not to observe the deal with the settlor, making an abuse of right. Cf., ex multis, Messineo: “Manuale di diritto civile e commerciale”, I, Milan, 1957, at 578, according to which the surplus of the technical means over the practical purpose “si presta ad un abuso della fiducia, da parte del fiduciario”.

[65] To analyze “digital place” as a no-territorial place, A. Gatti: “Istituzioni e anarchia nella Rete. I paradigmi tradizionali della sovranità alla prova di Internet”, in “Diritto dell’Informazione e dell’Informatica” (II), fasc. 3, 1 june 2019, at 711 ff.

[66] See also: J. Naves, B. Audia, M. Busstra, K. L. Hartog, Y. Yamamoto, O. Rikken and S. Van Heukelom-Verhage: “Legal aspects of blockchain”, 2019, avaiable on https://www.mitpressjournals.org/doi/pdf/10.1162/inov_a_00278

[67] Cf. G. Castellani, cit., at 3

[68] Cf. I. A. Caggiano, cit. at 67 ff.

[69] Cf. “Quaderno Fintech” 5/2019, cit.

[70] Cfr. B. Cappiello: “Cepet leges in legibus. Cryptoasset and cryptocurrencies private international law and regulatory issues from the perspective of EU and its member states”,in “Diritto del Commercio Internazionale”, fasc. 3, 1 sept. 2019, at 561 ff.

[71] Cf., ex multis, B. Cappiello, cit.

[72] However, it is necessary to mention the deserving national initiative taken by some orders across the Alps, which have given effect to “facts” (which one could therefore go as to define “digital facts“) that occur on Distributed Ledgers at transnational level and on Blockchain in particular. Among many others, consider initiatives aimed at digitalization of “land registry”: HM Land Registry in the UK and Lantmaeteriet, (the Swedish land registry) are two of the most advanced projects that have both tested blockchain to manage the passage of ownership of real estate through smart contracts.

On this point, a reflection on the Italian advertising system is by F. Drughiero: “Blockchain e circolazione mobiliare: verso un nuovo regime pubblicitario?”, 25 July 2019, available on http://www.iusinitinere.it.

Furthermore, some US federal States have recently approved or discussed legislative initiatives aimed at conferring juridicality to data transmitted via Blockchain: on June 5, 2017, for example, Governor of Nevada, Brian Sandoval, signed a law on blockchain use and smart contracts technology. The legislation amended the Uniform Electronic Transaction Act of Nevada, adding a definition of blockchain and including documents produced through this technology use among electronic ones (see VGM HYMAN, M. DIGESTI, New Nevada legislation recognizes Blockchain and Smart Contracts technologies, Nevada Lawyer, August 2017 at 13).

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