Applicable law to smart contracts and lex cryptographia

Abstract

Blockchain-based smart contracts pose significant challenges for Contract Law and Private International Law. At the same time, smart contracts using blockchain technology can largely operate outside the legal system and thereby, challenge the traditional legislative monopoly of the State. Some even predict that algorithms will eventually replace the law and the judicial system, once the socalled Lex Cryptographia is consolidated. Against this background, the present article addresses three main issues: First, it deals with the applicable law to smart contracts under the Rome I Regulation. Second, it studies the phenomenon of the Lex Cryptographia and its interaction with the state legal system. Finally, it analyses the ability of Private International Law to respond to some of the main challenges that arise in relation to smart contracts, namely, the need to provide legal certainty and a right balance between regulation and technological development.