The Law of Blockchain

Blockchain technology is a new general-purpose technology that poses significant challenges to the existing state of law, economy, and society. Blockchain has one feature that makes it even more distinctive than other disruptive technologies: it is, by nature and design, global and transnational. Moreover, blockchain operates based on its own rules and principles that have a law-like quality. What may be called the lex cryptographia of blockchain has been designed based on a rational choice vision of human behavior. Blockchain adopts a framing derived from neoclassical economics, and instantiates it in a new machinery that implements rational choice paradigms using blockchain in a semi-automatic way, across all spheres of life, and without regard to borders. Accordingly, a global law and crypto-economics movement is now emerging owing to the spread of blockchain. This Article suggests that such a rational choice paradigm is an insufficient foundation for the future development of blockchain. It seeks to develop a new understanding of blockchain and its regulation through code according to the emerging “law and political economy” framework. Blockchain is much more than a machine that enables the automation of transactions according to a rational choice framework. Blockchain should instead be understood as a technological infrastructure. Acknowledging the infrastructural dimension of blockchain technology may help identify a new role for the law in its interaction with blockchain, as well as for government in its interaction with the new technology. More precisely, identifying blockchain as an “infrastructural commons” helps us recognize that law and regulation should not be relegated to the role of merely facilitating the operation of the invisible hand of the market by and within blockchain, but should rather acquire more active roles, such as safeguarding access on non-discriminatory terms to users, on a model with net neutrality and other public utility safeguards. The Article closes by proposing a “law and political economy” framework for blockchain that is based on principles of publicness, trust, and interoperability

Constructing the Independence of International Investment Arbitrators: Past, Present and Future

Disqualification challenges against international investment arbitrators are increasing. This poses a great challenge for the legitimacy of the international investment regime. The aim of the Article is to trace the source of this development and to propose ways for the future structuring of an international investment regime that is both transparent and effective. Legal literature understands arbitrator independence as a standard imposed by legal rules. This does not capture the reality of international investment arbitration, especially in the framework of the ICSID Convention, which seems to set a lower standard of independence for ICSID arbitrators. This Article presents the latest trends in the challenge process based on an empirical study of the most recent ICSID tribunal decisions. The thesis of the Article is that arbitral independence in international investment arbitration is the result of a “process of communication” among different actors and prompted by the arbitration community itself. Arbitral independence is only partially a result of legal rules. It is also a consequence of the creation of a tightly connected community of international arbitrators that has been established over the years of arbitral practice and which has transposed their ethos and professional practices onto investment arbitration. This community has constructed a very high standard of independence for international investment arbitration, which is now set in motion by other actors involved in the field. The Article proposes finally the introduction of a new system of control in international investment arbitration that can address the peculiarities of the constructed process of the creation of investor-state arbitration: certification

Constructing the Independence of International Investment Arbitrators: Past, Present and Future

Disqualification challenges against international investment arbitrators are increasing. This poses a great challenge for the legitimacy of the international investment regime. The aim of the Article is to trace the source of this development and to propose ways for the future structuring of an international investment regime that is both transparent and effective. Legal literature understands arbitrator independence as a standard imposed by legal rules. This does not capture the reality of international investment arbitration, especially in the framework of the ICSID Convention, which seems to set a lower standard of independence for ICSID arbitrators. This Article presents the latest trends in the challenge process based on an empirical study of the most recent ICSID tribunal decisions. The thesis of the Article is that arbitral independence in international investment arbitration is the result of a “process of communication” among different actors and prompted by the arbitration community itself. Arbitral independence is only partially a result of legal rules. It is also a consequence of the creation of a tightly connected community of international arbitrators that has been established over the years of arbitral practice and which has transposed their ethos and professional practices onto investment arbitration. This community has constructed a very high standard of independence for international investment arbitration, which is now set in motion by other actors involved in the field. The Article proposes finally the introduction of a new system of control in international investment arbitration that can address the peculiarities of the constructed process of the creation of investor-state arbitration: certification

Learning and the Law: Improving Behavioral Regulation from an International and Comparative Perspective

Various disciplines are increasingly discovering the power of learning. However, the potential and the complexities of learning theory in decision-making contexts have so far been neglected by scholarship in law and economics as well as behavioral law and economics: either learning is uncritically assumed to occur and to mitigate biases, or it is generally claimed that learning is insufficient to overcome cognitive biases. Even where learning is considered, the scope is merely limited to individual or social learning. Learning by and across institutions, a crucial factor for effective regulation, is largely ignored. That type of learning should be paramount, however, as an increasing number of institutions at the international and domestic level are adopting behavioral regulation, which prides itself on facilitating “smart decisions.” This Article argues that legal analysis should tap the precious resource of learning to facilitate lasting and beneficial real-world effects. It draws on social and cognitive psychology, behavioral game theory, and organizational science to show that there are vast effectiveness and efficiency gains to be made from an integration of learning theory into regulatory and private law contexts. Interdisciplinary learning theory suggests that such gains can be made through learning by doing, observational learning, as well as recursive and generative learning. These learning methods can be used at the individual, social, team, and institutional level, which is demonstrated using case studies from international law, as well as American and European Union law. As an overarching category subsuming these forms of learning, the Article develops the concept of systemic learning. It suggests that the law should introduce systemic learning patterns in public and private law contexts through feedback loops and institutionalized systemic learning facilities. Finally, it proposes the institutionalization of an Agency for Systemic Learning Management. Having ignored learning theory in the past, future behavioral regulation should put learning efforts center stage as it unfolds on a global scale

Experiential Behavioral Economics Courses: Practical lessons learned from the Middle East

This paper presents the development and implementation of experiential behavioral economics course in three Middle East universities. Experiential learning has proven to have many benefits for students because of putting them at the center of the learning process and allowing them to learn by doing. More specifically, as part of the practical sessions, students were tasked to design, implement and report on one field experiment conducted in collaboration with a nudge unit. We believe that this approach whereby students apply their knowledge through experimentation to address issues relevant to their communities and environment can be more effective and impactful than traditional teaching or relying only on classroom-based experiments. In this paper, we share the lessons learned from the journey of delivering several experiential behavioral economics courses