Are the ICSID Arbitration Clauses in Investment Contracts Concluded via Smart Contracts Valid?

Abstract

Blockchain technology gained popularity with the emergence of intellectual technologies, as cryptocurrencies are also being discussed within contract law along with the interpretation of the concept of consent, and the validity of the consent written in computer codes. This article discusses the validity of arbitration clauses included in smart contracts in the light of the ICSID arbitration, decisions of tribunals and argues that although the institutional arbitration centres such as the ICSID do not possess required technical capacity, taking into account the level of flexibility of the condition of „consent in writing” interpreted in ICSID tribunal decisions on the jurisdiction, a valid arbitration agreement can be concluded in the form of smart contracts encoded and self executed. Besides, revisiting ICSID model clauses, this paper has suggested a new model arbitration clause adaptable to smart contracts.

Keywords

• blockchain
• smart contracts
• icsid arbitration
• arbitration clause
• validity