The Role of Will in Determining the Law Applicable to Smart Contracts

Abstract

This study aims to demonstrate the role of explicit and implicit will in determining the law applicable to smart contracts. Traditional attribution criteria have become incapable of determining the law of digital contracts. This requires a more effective legal system that is compatible with the nature of this type of digital dispute, ensuring legal security and protecting the legal positions of the parties to the contract. This study was conducted using an analytical approach, analyzing relevant legal texts in national and international laws, in addition to a comparative legal approach to study comparative laws in the Anglo-American and Latin American systems, to demonstrate the role of these systems in establishing rules for smart contract operations through digital platforms. The study revealed that the explicit will is the best traditional solution available in legal systems for determining the law applicable to smart contracts. While implicit intention has diminished the importance of the unified elements of a smart contract across all contracts, rendering it incapable of establishing a method for determining contract law. The virtual and decentralized nature of these contracts has led many legislators to refrain from addressing them, given the difficulty of creating a legal system in light of the infrastructure that requires development to accommodate contractual processes in this type of contract. Legal development in the field of smart contracts and artificial intelligence is necessary through the study of technical aspects by specialists to develop a substantive law that addresses the legal issues that arise when implementing smart contracts similar to electronic contracts. This law also addresses the issue of determining the law applicable to the international nature of this type of contract, or through developing attribution criteria that align with the nature of virtual disputes.