스마트 계약에 의한 국제거래의 관할과 준거법

Parties pursue foreseeablity and certainty by concluding a contract to address uncertainty associated with transactions. As blockchain technology has emerged, smart contracts based on it ensue. Attention has been drawn to smart contracts whose automatic execution is effected in accordance with agreed contractual terms through a computer code translating legal prose into a program. The contractual terms and facts related to the performance of the contract are programmed into a distributed blockchain. A party can trust the blockchain instead of the other party to make a transaction as the blockchain system ensures reciprocal enforcement. Private enforcement of smart contracts under existing legal structures can decrease transaction costs by excluding governmental intervention. As a result, society can operate more efficiently. Their adoption may be resisted due to costs and uncertainty generated by introducing smart contracts. Smart contracts increase uncertainty in jurisdiction and applicable law due to the nature of the blockchain technology which is decentralization and anonymity and their international use across jurisdictions. If the benefits resulting from smart contracts are exceeding the social costs, they will be widely adopted in international transactions. Legal rules are following, not leading the market or technology. Only when blockchain technology on which smart contracts are based is fully completed, legal rules can be developed accordingly. It would be impossible to avoid any dispute between the parties even in a smart contract. Therefore, smart contracts also require a dispute resolution mechanism. The exercise of jurisdiction may encounter practical problems associated with decentralization and anonymity. As an alternative, smart contracts may provide for online arbitration. Parties’ choice of applicable law will increase legal certainty pursued by a contract. Absent the choice by the parties, the closest connection test by virtue of the rules of private international law comes into play. However, the determination of applicable law may also encounter problems associated with decentralization and anonymity. It would be a tedious process to unify applicable law to smart contracts. For the time being, it would reduce uncertainty for a treaty to clarify the rules of private international law and to adapt existing legal rules in regulating smart contracts. A digital dispute resolution mechanism comprised of digital arbitration and unified applicable law could promote international trade through smart contracting. The preexisting legal research focuses on the meaning and execution of smart contracts. As smart contracts based on the blockchain technology often have the nature of international trade, it is time to examine them in this respect. This research reviewing legal issues in the context of international trade could contribute to enhancing positive implications of smart contracts on international trade by reducing uncertainty surrounding them.