Smart contract e (non-)diritto: il caso dei mercati finanziari

The term “smart contract”, coined essentially by technologists, has also entered the vocabulary of jurists a few years ago. Recently, even the Italian legislator has given a very first definition of “smart contract” within the art. 8-ter, d.lgs. 12.14.2018, n. n. 135, conv. l. 2.11.2019, n. 12. But what is meant by this expression and what sense does it make for a jurist to reason about this new conceptual category? This essay, in attempting to answer two fundamental questions, concludes in the sense that: 1) “smart contracts” are not agreements; notwithstanding in the wide spectrum of situations covered by “smart contract” there are, of course, also agreements concluded through algorithms, however, most of them are not contracts, but mere activities for the performance of obligations or, in any case, of already defined contractual provisions; 2) we must not confuse “smart contract” and blockchain; 3) the legal problems raised by the “smart contract” phenomenon require an analytical approach strongly conditioned by the technological ecosystem of reference and that must be calibrated in this case; 4) also for this reason, the category in question - as such, that is to say intended as a category - has substantially no legal relevance; 5) in any case, in consideration of the aforementioned technological conditioning, every attempt made by jurists to understand, and regulate the phenomena in question is, at present, likely to be obsolete at the moment in which it is carried out, which requires the lawyer to adopt an even more prudent and informed approach; 6) besides, the questions concerning the effectiveness of the c.d. smart contract, or those related to the consequent possible responsibilities, in practice, for many years, are normally managed by the IT systems involved without any recourse to the institutions and to the rules of the legal system, which, instead, when operating, are concentrated, for the more, in an attempt to avoid market distortions. The assumptions just summarized are confirmed by the observation of what happens in the financial markets, where the Algorithmic trading (AT) and the high frequency trading (HFT) are, from the end of the Nineties of the last century, a consolidated and constantly expanding reality.