La multiplication récente des projets de blockchains est le signe de la maturité de cette technologie et de la prise de conscience de ses considérables enjeux par les acteurs économiques. Les questions soulevées depuis dix ans par les bitcoins étaient avant tout des questions économiques et de politique monétaire, dont celle de savoir qui peut battre monnaie. Aujourd’hui, les questions, les interrogations se multiplient et dépassent la sphère économique et étatique. Les avantages sont nombreux : automatisation des procédures, sécurisation et horodatage des données. Des questions restent cependant en suspens. L’automatisation des blockchains entraînera-t-elle la disparition des tiers de confiance ? Les chaînes de blocs ont également fait apparaître la notion de smart contract. Qu’en est-il de leur qualification juridique et de leurs effets ? Lorsqu’une blockchain permettra, et permet déjà, d’échanger des données à caractère personnel, qu’en sera-t-il de leur protection ? Autant de questions qui méritent d’obtenir une réponse.
Difficulties faced by the legal system in coming to terms with blockchainsThe recent proliferation of blockchain projects is a sign of the maturity of this technology and the awareness of its considerable stakes by economic actors. The issues raised over the past ten years by bitcoins were primarily economic and monetary policy issues, including who can mint coins. Today, questions are multiplying and going beyond the economic and state sphere. The advantages are numerous: the automation of procedures, security, and the timestamping of data.The first function of a blockchain is to preserve the data (record keeping) and to secure them. This data retention allows us to trace data and assets. Thus, in terms of transportation and logistics, it helps us to find out where the goods were produced, packaged, loaded, and unloaded. In the domain of health, this helps us to uncover the origin of the drugs shipped. This would result, de facto, in certifying the origin of the goods. The sectors that can benefit from these benefits are unlimited.Another function of blockchains, automation, allows for fluidity in management processes, saving significant amounts of time and considerable sums of money. The example of maritime transport provides indisputable proof. The timestamp of the data entered on a blockchain is often put forward to boast the advantages it offers. Indeed, particularly in the field of intellectual and industrial protection, this function makes it possible to provide proof of the primacy of a work. It is necessary, however, to distinguish industrial property and intellectual property whose legal regimes are not identical. It is therefore also necessary to determine the contribution of the timestamp to each of these properties. In addition, is timestamping a permissible form of evidence before the courts? The question arises and clarification needs to be made.The advantages of blockchains, both economic and legal, are therefore numerous. Nonetheless, several questions remain unresolved. Originally, blockchains were not intended to store and exchange personal data. However, their evolution and the evolution of the law make the situation more complex. These data, protected by the pseudonym, are being updated by legislation that, in the context of the fight against cybercrime (Titanium Project), is calling this pseudonym into question. Thus, today, blockchains can exchange personal data that are no longer protected by pseudonymity. What about their protection? There is therefore a conflict between blockchains and personal data protection laws, such as the General Data Protection Regulation (GDPR) from the EU. How can this conflict be resolved?Another question that is very often asked: will the automation of blockchains cause the disappearance of trusted third parties? This trusted third party—who is an intermediary— would disappear, or at least see his/her role drastically reduced; if a blockchain makes it possible to register a sale between two private individuals, why not use it in the case of a real estate sale? The transaction will be secure, covered by the pseudonym, and dated. Are services provided by a notary still necessary?Blockchains have also given rise to the notion of smart contracts, but what about their legal qualification and their effects? The proximity of the reasoning methods of lawyers and computer scientists may have suggested that these smart contracts were contracts in the legal sense of the term. However, if they codify contractual clauses, they cannot be qualified as contracts. In addition, a smart contract does not take into account the notion of good faith that exists in the law of obligations and is therefore a matter of public order. From this point on, these “digitized contracts” will have to evolve so that they can be integrated into the particularities of the law of contracts. There are so many questions that deserve, if not to have an answer, at least to be nuanced.
