الإختـصاص القـضائـي فــي المنازعـات الناشئة عـن الـعـقـود الـذكـيـة (( دراسة مقارنة ))

Jurisdiction in disputes arising from smart contracts ((Comparative study

Abstract
This study examines a new and modern contractual model for interaction in cyberspace, called the smart contract integrated with blockchain technology. This smart contract is one of the most important legal assets that electronic transactions will witness, and indeed have witnessed in the world today. This blockchain, which is the technology behind digital currency, allows smart contracts to fully exploit their potential. Any party in any country can automatically create their transactions and pre-program the potential outcomes and effects that arise during the contractual relationship. A smart contract can also guarantee that the contract will be executed correctly and automatically, without any human intermediary intervening in the contracting process. As a result, smart contracts, using blockchain, automate and implement contractual relationships between individuals by encoding these relationships in a digital program, providing its users with the ability to link countless possible circumstances to corresponding outcomes through pre-prepared code.
The study concluded by discussing the idea of the smart contract in terms of its concept, description and existence. It is not, as some imagine, a new mechanism for implementing the contract, but rather a modern contract with all its components. The study demonstrated the legislative shortcomings that these advanced contracts suffer from, and the necessity of intervention by the legislator in this regard. The mechanism by which these contracts are implemented differs in its philosophical methodology, which excludes the human aspect in implementation to be dominated by the mechanical aspect based on utilitarian economic considerations that only believe in money, and a rigid algorithm that only believes in numbers. The study also took into account digital openness in Iraq, and since regulating the methods of resolving disputes constitutes the mother of the purposes of the existence of the law, which requires keeping pace with the developments that accompanied the theory of contracting, and the issue becomes more complex if the theory of international jurisdiction, which plays an important role, is delved into; The issue of determining the jurisdiction of a national judge to consider a dispute with a foreign element in a contractual relationship concluded via the blockchain feature depends on it. However, the rules upon which the theory of international jurisdiction is based are based on the fact that the legislator, when establishing its provisions, envisioned that the contract would be concluded in a traditional manner as regulated by law. He therefore wanted to regulate judicial jurisdiction to find appropriate solutions to the conflict of judicial jurisdiction between countries with this conception. This means that the controls of this theory may not be compatible with the nature of the smart contract, which requires the use of other controls related to the way in which it operates, which is what the study concluded and found appropriate for the nature of the contract and the feature supported by it.
Hope remains that Iraqi legislators will move to revise many of the legal provisions related to contract theory, to keep pace with developments in contracting, particularly the recent emergence of smart contracts featuring automated enforcement. This will help establish a preliminary vision for a legal framework that does not constitute an obstacle to economic and technological development, but rather responds to this digital variable and its use in a variety of fields and at various levels.