A eficácia da cláusula arbitral nos smart contracts

Abstract

Arbitration is based on the valid consent of the parties, especially considering that there will be a waiver of state jurisdiction. Because of the advent of blockchain technology, smart contracts innovated with the ability to self-execute the obligations of their clauses automatically, that is, regardless of third-party intervention or the impulse of the parties. Furthermore, the present study have the goal of analyzing the effectiveness of the arbitration clause in smart contracts in the light of its elements and characteristics, as well as its compatibility with blockchain technology. Even though there is legal certainty to the contractual fulfillment, conflicts arising from smart contracts are inevitable, as code failures, validity defects, besides contractual imbalances may occur, which require the intervention of third parties. It turns out that, due to the immutability of smart contracts, even if there is a court or arbitration decision, these will only be effective if can be transcribed into code and, especially if, initially, the contract was programmed with a dispute resolution clause. In this regard, to harmonize not only with desirable technical knowledge, but also with blockchain technology, arbitrage is being applied in the smart contracts. Thus, the methodology of the present work consists of a bibliographical and documental research. Finally, it can be considered that the regulation of smart contracts is still a gap that needs to be filled by legislators, in order to provide greater legal certainty regarding the validity and effectiveness of dispute resolutions related to smart contracts and, especially, the arbitration clause written in code language. Contractual freedom and the autonomy of the parties will must be respected, however, it is not a question of hindering the implementation of innovative, but only of harmonizing the digital with the Law, providing the full effectiveness of the arbitral decision.