Malta
Answer ... The prerequisites for the validity of a contract under Maltese law are as follows:
- capacity to contract;
- consent of the parties;
- causa – subject matter; and
- lawful consideration.
The absence of any one of these requirements will render the contract null and void in the eyes of the law.
In Malta, registered smart contracts must comply with the Malta Digital Innovation Authority (MDIA) and Innovative Technological Arrangements Services (ITAS) regulations. These regulations ensure that certain safeguards are in place to prevent material loss to users and material breaches of the law. For example, the regulations state that there should be an in-built technological feature to enable a technical administrator to intervene in case of material breach. They must also specify that the courts of Malta have jurisdiction (even though users will be located all over the world). The technology must further include an in-built feature in relation to alternative dispute resolution – providing a quick, cheap and efficient electronic procedure to allow that users from all over the world to enforce their rights.
The Maltese Civil Code will soon be amended to include smart contracts (as defined in the MDIA and ITAS regulations) in the definitions.
Malta
Answer ... Yes, the MDIA and ITAS regulations focus on this technology.
Malta
Answer ... Smart contracts are agreements in digital form that are self-executing and self-enforcing, based on the fulfilment and verification of certain conditions. Such processes afford considerable efficiency, due to features such as automation, removal of middlemen/the human element, and an auditing function. Smart contracts have become quite advanced and are being built with features that allow for the reversal of transactions or wrongfully obtained funds and dispute resolution mechanisms.
Smart contracts can replace traditional contracts in situations where the certainty of a result can be achieved. Smart contract verification responds to binary situations (yes or no), but not to situations which are open to interpretation or which can be adjudicated based on retrospective events.
Malta
Answer ... There are certain situations in which smart contracts should not be used. For example, a contract may include phrases which are open to interpretation, such as ‘best efforts’, ‘good faith’ or ‘what a reasonable person would do’; these subjective phrases are difficult to reduce to computer code. Certain situations might also still require human intervention. As smart contracts are programmed to respond to a set of rules, how can one expect such rules to capture all possible scenarios, thus removing the need for lawyers or formal dispute resolution altogether? While smart contracts are generally effective and efficient, they are not omnipotent.
Furthermore, smart contracts are programmed to execute transactions based on the design of the smart contract code when it was created; so unless such code includes an option for re-negotiation, the parties are bound by the contractual terms and the possibility to modify the terms is excluded.
Malta
Answer ... Off-chain enforcement may be required in the event of certain smart contract breaches. This may cause problems where pseudonymity is coupled with an international aspect. This is why the identification of the parties that consent to jurisdictional clauses in smart contracts is imperative. If the parties wish to remain private, smart contracts cannot rectify or resolve breaches and disputes may arise.
Malta
Answer ... Parties in blockchain nodes may incur legal liability – especially if the network applies proof of authority (ie, when block validators stake their reputation instead of coins). What happens if there is a bug in the code, which makes an unfair or devious transaction resemble a legitimate transaction as far as the code is concerned? Should the smart contract address the liability and type of recourse in case of such risks? Will the developers of the code be liable?
Off-chain enforcement may be required in the event of certain smart contract breaches. This may cause problems where pseudonymity is coupled with an international context. This is why the identification of the parties that consent to jurisdictional clauses in smart contracts is imperative. If the parties wish to remain private, smart contracts cannot rectify or resolve breaches and disputes may arise.
Malta
Answer ... The main difference between public and private blockchains is the level of access granted to participants. Public blockchains are decentralised and completely open and transparent, allowing anyone to participate by verifying or adding data to the blockchain. Private blockchains are permissioned, which controls user access to information. A private blockchain network requires an invitation and must be validated either by the network or by a set of pre-defined rules established by the network. Only entities participating in a particular transaction will have knowledge of and access to it – other entities will not have access to it.
As private blockchains are run by private individuals, there is a higher risk of fraudulent behaviour, since powerful actors may make decisions in favour of persons within the group.
On private blockchains, the possibility for review and audit is also limited, since permission is required to access data. When it comes to public blockchains, anyone can run a node and access the ledger to review and audit it, making it more transparent and reducing the risk of malicious behaviour.
Private blockchains may be completely centralised and may thus allow for certain corrections and changes to data stored on the chain which may not be possible on public blockchains, as these require consensus. From a legal perspective, a private blockchain allows for a governance structure to be set up that can correct faulty data and account for situations where legal enforcement comes into play. However, since such a structure may be centralised, this runs counter to the advantages afforded by blockchain technology, which is based on openness, trust, transparency and the absence of middlemen.