Search results

Abstract: The computer language (computer code) on the basis of which smart contracts are written is different from the natural (Human) language. Computer language is a 'dry' language, whereas natural language is 'wet'. In other words, it means that computer language is deterministic (just one meaning and one result are conceivable), when natural language is open to more and potential different meanings. Natural language requires therefore in itself interpretation, at least more than computer language. Computer language in theory doesn't require and possibly doesn't leave room for interpretation. If this assumption is accurate, what are the consequences of it (on the intention of the parties, on contract drafting, on courts' intervention…)? Building on that assumption, this article explores, from a comparative perspective, the impact of the blockchain-based smart contract technology, especially regarding contract drafting techniques. Contract drafting style in common law (long contracts, based on a 'if …, then ….' approach, quite similar to the coding approach) is in part based on the idea of preventing courts' interpretation and intervention. In civil law countries instead, contracts are generally shorter, for several reasons but partly because drafters tend to rely on more general legal concepts, external to the contract, and know that courts will play an important role, through interpretation, in disclosing the 'true meaning' of a contract. Coding contracts and relying on computer-code language can hence have a significant impact on the civil law approach and bring the two legal systems closer as far as contract drafting and contract interpretation are concerned.

Abstract: This case note is a French perspective on UK Supreme Court decision in Makdessi. English law and French law are known to rely on different approaches towards contractual penalties. This seems to be confirmed after the recent (2016) reform of the French law of obligations. One of the central features of French law on contractual penalties is judicial intervention when the amount of the penalty is derisory or excessive. English law, after Makdessi, could be brought closer to French law as it puts the focus on the substance of the penalty clause and on the legitimate interest in the enforcement of the contract. However, it does so in a trend that further restricts judicial intervention, whereas French law is leaning towards a quite opposite direction.

Abstract: Contractual penalties are a quite classical topic of doctrinal debate in France. The said debate focuses mainly on two issues: contractual freedom on one side and restrictions to it on the other side. In addition to that, the unclear distinction between contractual penalties and liquidated damages clauses in French law raises further questions. In legal practice, the use of contractual penalties is widespread because it reduces the uncertainty surrounding the judicial assessment of damages. Contractual penalties do not, however, exclude completely the judge's intervention. Indeed, a classification as contractual penalty will submit the contractual clause to the judge's moderation power. Drafters of contractual clauses make, therefore, sure not to rely on a wording that could refer to the penalty dimension of a contractual term in order to exclude judicial intervention. This judicial intervention could, however, rely on the unfairness of the clause, whatever the appellation given to it. Although limited to business-to-consumers (B2C) contracts at the moment, the 'contractual term unfairness' approach could be extended to business-to-business (B2B) contracts as well in the future, which would therefore limit to a large extent the debate surrounding the issue of classification as penalties of contractual clauses. Résumé: Le sujet des clauses pénales est assez classique dans le débat doctrinal français. Deux enjeux déterminent plus précisément ce débat : la liberté contractuelle d'un côté et la limitation de cette liberté par le juge de l'autre. A cela s'ajoute le caractère imprécis de la distinction entre la notion de clause pénale et celle d'évaluation forfaitaire du préjudice, créant d'ultérieures interrogations. Dans la pratique, l'usage de ces clauses est particulièrement répandu car il réduit l'incertitude de l'évaluation judiciaire du préjudice. Il n'exclut toutefois pas toute intervention du juge en fonction de la qualification retenue du fait du pouvoir modérateur de la clause pénale qui est accordé au juge par le Code civil. Les rédacteurs de clauses veillent donc à exclure la référence au caractère punitif de la clause afin d'éviter cette intervention du juge. Mais ce dernier peut néanmoins trouver une autre voie d'entrée dans le monde contractuel, notamment en appréciant le caractère abusif de la clause. Cette faculté, qui est pour l'instant limitée aux contrats entre consommateurs et professionnels, pourrait être étendue à tous les contrats. Le débat autour du pouvoir modérateur du juge face aux clauses pénales perdrait ainsi une grande partie de son intérêt.

The technology and application of artificial intelligence (AI) throughout society continues to grow at unprecedented rates, which raises numerous legal questions that to date have been largely unexamined. Although AI now plays a role in almost all areas of society, the need for a better understanding of its impact, from legal and ethical perspectives, is pressing, and regulatory proposals are urgently needed. This book responds to these needs, identifying the issues raised by AI and providing practical recommendations for regulatory, technical, and theoretical frameworks aimed at making AI compatible with existing legal rules, principles, and democratic values. An international roster of authors including professors of specialized areas of law, technologists, and practitioners bring their expertise to the interdisciplinary nature of AI.

The product of a unique collaboration between academic scholars, legal practitioners, and technology experts, this Handbook is the first of its kind to analyze the ongoing evolution of smart contracts, based upon blockchain technology, from the perspective of existing legal frameworks - namely, contract law. The book's coverage ranges across many areas of smart contracts and electronic or digital platforms to illuminate the impact of new, and often disruptive, technologies on the law. With a mix of scholarly commentary and practical application, chapter authors provide expert insights on the core issues involving the use of smart contracts, concluding that smart contracts cannot supplant contract law and the courts, but leaving open the question of whether there is a need for specialized regulations to prevent abuse. This book should be read by anyone interested in the disruptive effect of new technologies on the law generally, and contract law in particular

With increasing digitalization and the evolution of artificial intelligence, the legal profession is on the verge of being transformed by technology (legal tech). This handbook examines these developments and the changing legal landscape by providing perspectives from multiple interested parties, including practitioners, academics, and legal tech companies from different legal systems. Scrutinizing the real implications posed by legal tech, the book advocates for an unbiased, cautious approach for the engagement of technology in legal practice. It also carefully addresses the core question of how to balance fears of industry takeover by technology with the potential for using legal tech to expand services and create value for clients. Together, the chapters develop a framework for analyzing the costs and benefits of new technologies before they are implemented in legal practice. This interdisciplinary collection features contributions from lawyers, social scientists, institutional officials, technologists, and current developers of e-law platforms and services