Riva, Sven

2023-11-07, Guillaume, Florence, Riva, Sven

For the past twenty years, the use of the Internet has facilitated international commercial relations between people who do not know each other and who are geographically distant. Disputes resulting from e-commerce have undermined the supremacy of state courts, which have proved unable to provide an appropriate response to small claims arising in an international context and raising delicate questions as to jurisdiction and applicable law. The length, cost and complexity of the procedure, as well as the risk associated with the international enforcement of the judgment are deterrent factors that led e-commerce platforms to develop online dispute resolution (ODR). Thanks in part to the removal of intermediaries, the transfer of cryptocurrencies and other crypto assets using blockchain technology has further facilitated international commercial relations. The decentralized and distributed characteristics of blockchain technology and the pseudonymity of its transactions has led to a new economy growing independently from nation states. This technology has brought an additional degree of complication in the application of private international law (PIL) rules by removing the illusion that online transactions can be linked to the territory of a state. Smart contracts also allow the creation of digital entities that can enter into commercial relations. The first decentralized autonomous organization (DAO) was the source of a resounding dispute between parties with diverging interests, which had to be urgently resolved without any access to state courts or a dispute resolution mechanism. This case revealed the risk of disputes in the blockchain environment and the resulting legal uncertainty, and led to the emergence of various models of blockchain dispute resolution (BDR) mechanisms (BDRs) inspired by the solutions developed in e-commerce. This chapter deals with the application of PIL rules to the resolution of disputes involving DAOs. The authors first analyze what is a DAO and whether DAOs legally qualify as companies. What is at stake is the legal personality of DAOs and their capacity to conduct legal proceedings. The authors then examine whether disputes involving DAOs may be brought before state courts. This analysis highlights the problems related to the location, pseudonymity, and uncertainty regarding the legal personality of the participants of the blockchain environment, which challenge the jurisdiction of state courts in case of a dispute. The authors then draw on the experience acquired in the field of e-commerce to examine the advisability of setting up alternative dispute resolution mechanisms available to the actors of the blockchain environment. Based on an analysis of existing BDRs, the authors examine whether and how BDRs are likely to avoid a denial of justice and bring legal certainty to disputes related to contractual relationships with DAOs formalized through smart contracts as well as disputes related to the governance of DAOs. The authors find that a BDR decision which can be directly enforced through smart contracts confers effective justice to the actors of the blockchain environment. Finally, the authors address the more delicate issue of the enforcement of a BDR decision on non-crypto assets. This approach shows that a type of justice based on cryptoeconomic incentives challenges the concept of fair justice. This could be an impediment to obtaining the assistance of state authorities for the enforcement of a BDR decision outside of the blockchain environment as this type of decision could be considered contrary to public policy. The analysis is mostly based on Swiss private international law and major private international law conventions. In this chapter, the authors outline the contours of a new private justice system designed to provide decentralized autonomous justice to the actors of the crypto economy.

2019, Riva, Sven

Building on the architecture of smart contracts, new forms of entities similar to companies are now emerging from the blockchain environment, called Decentralized Autonomous Organizations (DAOs). DAOs let participants manage resources in a decentralized manner through predefined governance rules inscribed on a series of smart contracts deployed on a blockchain. Taking the Swiss legal order as a framework, the author has attempted to determine whether the activities of a DAO have legal effects in Switzerland. The answer to this question depends on their recognition in the Swiss legal order. While the recognition of foreign DAOs governed by the laws of a State does not raise particular legal issues, DAOs that live on the Internet independently from any jurisdiction upset existing legal principles, which generates legal uncertainty. Legal scholars have traditionally dealt with the issue of the recognition of DAOs by attempting to transform them into known legal concepts, either as a form of company of Swiss substantive law, or as a set of contractual relationships. The author suggests that DAOs should instead be recognized as foreign companies through private international law. This preferred pathway could possibly let DAOs exist in their present construct, while recognizing their legal effects within the Swiss legal order. However, a strict interpretation of the private international law Act (PILA) leads to a dead-end for a majority of DAOs as, under the law, a company must be validly constituted under the law of the State it is governed by in order to exist in Switzerland. Building on the functional equivalence theory, the author introduces the concept of an online jurisdiction ruled by its code as a means to grant legal existence to DAOs living exclusively on the Internet. This new legal construct recognizes the code of a DAO as its governing law and the online space as its jurisdiction. As such, DAOs could be recognized in Switzerland as foreign companies and be subjects of rights and obligations.

2021, Riva, Sven

2019-12-11, Guillaume, Florence, Riva, Sven