Smart contract, abuso del diritto e tutela giurisdizionale: spunti di comparazione tra diritto italiano e diritto inglese

This paper sets to shed light on the issue concerning the possible abuse of rights brought about by the self-executing nature of smart contracts, whereof a number of concrete examples were hypothesised along with certain forms of judicial protection that may be devised so as to curb the prejudice resulting from the afore-mentioned digital phenomenon within the scope of a comparative perspective between Italy and England. Owing to the de facto ineliminability of the effects produced by the computer programme and the difficulties of identifying specific protections for cases where permissionless blockchain-based smart contracts could constitute an abuse of rights, a reintegrative mechanism of a patrimonial nature was originally formulated, thus enforcing already existing legal institutes in the national legal systems compared herein. However, even though the absence of the general category pertaining to the abuse of rights in the English legal tradition has hindered the development of alternative remedies to unjust enrichment and claim for damages, which seem to be applicable to abusive hypotheses even across the Channel, in Italy the essential features and the general doctrine relevant to the abuse of rights allowed the application of multiple, atypical and non-predetermined forms of judicial protection that perhaps could be viable in cases where it is deemed useful to trace the abuse of rights back to the self-executiveness of the smart contract. Lastly, although permissionless blockchain-based computer programmes were born with the specific purpose of allowing economic transactions to be carried out without a third party, such as the State, being able to intervene in the relationship or modify the effects produced by a computer protocol, this contribution underlines the enduring need for the law to continue regulating new digital phenomena through all means at its disposal.