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International dispute resolution: Circumventing the block

International dispute resolution: Circumventing the block

By Sarah Hinchliffe

Dispute Resolution Technology 


The increased use of distributed ledger technology has created a new space in which international disputes, including those involving Blockchain, can exist.

  • Bitcoin is but one use of blockchain and distributive ledger platforms.
  • The complex interaction between blocks in a blockchain gives rise not only to technical hurdles but international disputes with regards transactions that the platforms seek to facilitate. 
  • This article identifies tips and traps for a legal practitioner whose clients engage, develop, or seek to engage in transactions that involve blockchain, as well as dispute resolution options and mitigation.

The use of blockchain in commercial trade and transactions is being explored. While the aim of blockchain is to create a more efficient, secure and open platform for commercial transactions, choate industries face regulatory uncertainty, possible technical hurdles, and quandary with regards to dispute resolution. This article identifies pivotal legal risks of blockchain that legal practitioners may increasingly encounter and plausible dispute resolution options in an international commercial trade setting. Privacy and security issues with regards to distributed ledger technology (DLT)1 platforms are not discussed.

What is blockchain

Broadly, blockchain (a type of DLT) is a decentralised digital infrastructure where network participants (or nodes, eg, users or PCs) store transactional data in a distributed ledger (ie, a bookkeeping record that is visible simultaneously to users in that network and updated in real time) as a chain of “blocks”.2 Since blockchain is maintained by participants in that network rather than a centralised authority or single controlling entity, it is also regarded as an “institutional governance technology”.3

Adding blocks to the chain 

A block is only added to the chain (ie, a continuous and complete record of all transactions performed)4 – and time-stamped – if participants in the blockchain network reach consensus that it is the next “valid” block to be added to the chain (see below).5

Blocks in a Blockchain diagram

Blocks in a Blockchain 

Blockchain’s use

Bitcoin was one of the first commercial uses of blockchain. Blockchain and other DLTs provide a digital protocol for various commercial uses – both financial (eg, trading platforms, platforms that remit digital currency) and non-financial (eg, smart contracts).

Blockchain network

A blockchain network can be public – meaning that participants can access and download the data stored on the blockchain – or private – a closed network where only known or permissioned parties can participate (eg, accessible within a single organisation).7 Smart contracts may exist in either a private (permissioned or closed) or public hybrid platform. For example, a smart contract on a public chain might have a dependency on another contract residing on a private chain managed by a trusted party.

Pivotal legal issues and risks

In addition to security and privacy concerns involving data and information, the following scenarios raise legal risks for parties in commercial and international trade settings who utilise blockchain. 

Smart contracts in international supply chains

Smart contracts can automate many different processes and operations, including payments and digital actions conditional on payments. A smart contract can be used between parties in the international movement of goods (eg, shipping of goods from one country to another). In the event of non-performance by one or both parties, the smart contract’s automation function means that payment would only be made if and/or once certain stages in the contract are met, and so the smart contract itself provides its own remedy in the event of non- or part-performance. 

Disintermediated payment provider

The above scenario may be complicated where a payment provider (eg, bank) is disintermediated by an open-source blockchain such as the Libra blockchain. A legal practitioner should be mindful that each jurisdiction has its own requirements for networks established to facilitate the movement of money around the world. For example, there are licensing and operational requirements under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), Electronic Transactions Act 1999 (Cth) and the equivalent Australian state and territory legislation, Australian Securities and Investment Commission Act 2001 (Cth) and Competition and Consumer Protection Act 2010 (Cth) that a financial product or financial services entity must comply with.

Fraud and money laundering

Following on from the above, investor disputes occur where an initial coin offering (ICO) offeror cannot be clearly identified or if investments are made in systems that are operated outside Australia. With regards the latter, should a dispute arise, claims against token offerors domiciled abroad can only be asserted with substantial effort and difficulty, if at all. Legal practitioners should be mindful of possible fraud or money laundering schemes, the legal consequences and how to avoid such schemes. For example, a unit of cryptocurrency that is mined in China (the value of which is unclear or because the intangible asset is not backed by a reserve of, eg, low-risk assets) is then transferred to an entity (eg, a gambler) as a “gambling chip” and who then subsequently gambles that unit of cryptocurrency in Australia. A criminal matter such as fraud or money laundering where the jurisdiction established is Australia would attract the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and Criminal Code Act 1995 (Cth).

Hiding assets

There is then the more practical issue of discovery of cryptocurrency and how to access the cryptocurrency for conversion purposes or realising the intangible asset’s value following seizure of such an asset.8 Hiding assets or recovery of a private key (ie, a sophisticated form of cryptography that enables a user to access their cryptocurrency) in the course of commercial litigation, in which case discovery proceedings and forensic investigation (in the event of litigation) against the other party may be considered.

Commercial and international trade involving financial products

Cryptocurrency, which is characterised as a financial product under the Corporations Act 2001 (Cth), will fall within the scope of Australia’s existing financial services regulatory regime. An ICO is an example of a financial product. This section outlines where disputes can arise with regards to cryptocurrency and in particular ICOs, taxation treatment of cryptocurrency and related transactions, the dispute that legal practitioners may encounter and the corresponding regulatory framework.


An ICO is a fundraising mechanism in which new projects sell their underlying crypto tokens in exchange for bitcoin and ether. It is similar to an initial public offering (IPO) in which investors purchase shares of a company. 

Legal practitioners advising potential investors should be mindful of the following:

  • ASIC may take action against misleading or deceptive conduct in marketing or issuing ICOs (whether or not it involves a financial product)
  • a dispute arising between the ICO entity and investor may proceed according to dispute resolution clauses or rules built into the agreement underlying the ICO. 

Statutory instruments that could apply to a commercial transaction involving blockchain

Competition and Consumer Protection Act 2010 (Cth)

Schedule 2 – offer of services or products to Australian consumers. The Australian Consumer Law (ACL) prohibits misleading or deceptive conduct in a range of circumstances including in the context of marketing and advertising. For example, ICO promotional material must not mislead or deceive consumers. The protections of the ACL are generally reflected in the Australian Securities and Investments Commission Act 2001 (Cth), providing substantially similar protection to investors in financial products or services. ASIC may take action against misleading or deceptive conduct in marketing or issuing ICOs (whether or not it involves a financial product).

Fair Trading Act 1999 (Vic)

Part 2 could potentially apply to unfair practices with regards use and application of blockchain.

Australian Securities and Investment Commission Act 2001 (Cth)

Powers of ASIC with regards to obtaining appropriate licenses for financial services infrastructure and services. For example, if a dealing involves cryptocurrency (including those offered during an ICO) and constitutes a financial product, then there are financial services licensing and disclosure requirements. ASIC INFO 225 Initial coin offerings indicates that cryptocurrency with similar features to existing financial products or securities will fall within the definition of “financial product” or ‘”financial service” under the Corporations Act 2001 (Cth).

To the extent that an entity implements blockchain or other DLT in supporting its cryptocurrency, there are other obligations to comply with. ASIC INFO 219 Evaluating distributed ledger technology provides guidance for businesses considering operating market infrastructure or providing financial or consumer credit services using blockchain.

Corporations Act 2001 (Cth)

As outlined above, cryptocurrency, which is characterised as a financial product under the Corporations Act 2001 (Cth), will fall within the scope of Australia’s existing financial services regulatory regime. Depending on the minimum amount of funds invested per investor and whether the investor is a “sophisticated investor” or wholesale client, an offer of financial products (eg, ICO) may not require regulated disclosure.

Electronic Transactions Act 1999 (Cth) and the equivalent Australian state and territory legislation

The Electronic Transactions Act 1999 (Cth) provides a legal framework to enable electronic commerce to operate in the same way as paper-based transactions. For example, provided that smart or self-executing contracts (including those used by various cryptocurrency networks) meet all the traditional elements of a legal contract, it will be permitted in Australia.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)

In April 2018, AUSTRAC implemented new laws that require Australian crypto exchanges to comply with requirements under this Act.

Taxation considerations

There are tax considerations when advising clients who intend to invest in cryptocurrency that utilises blockchain or that seeks to develop cryptocurrency or other financial trading platforms using blockchain. The key objective is effective tax planning so that anti-avoidance provisions, including Part IV of the Income Tax Act 1996 (Cth), and disputes are averted. 

Applicable Australian federal statutory tax instruments 

A New Tax System (Goods and Services Tax) Act 1999 (Cth)

Taxable supply: From 1 July 2017, purchases of digital currency are no longer subject to GST. Subsection 9-10(4) provides that:

“. . . supply does not include:

  1. a supply of money unless the money is provided as consideration for a supply that is a supply of money or digital currency; or
  2. a supply of digital currency unless the digital currency is provided as consideration for a supply that is a supply of digital currency or money”.
  3. The use of cryptocurrency to pay for goods and services that are a taxable supply under s9-5 does trigger GST.

Income Tax Assessment Act 1997 (Cth)

Income tax: Trading stock provisions will apply to certain crypto-based businesses, being those that trade, exchange or mine cryptocurrency.9 Other businesses that use cryptocurrency in the course of their business activities must account for the crypto like any other asset.10 Companies that purchase with cryptocurrency or accept crypto payments will treat the transaction like “any other non-cash consideration under a barter transaction”.11

Capital gains tax regime: The CGT regime may otherwise apply. The definition of a “CGT Asset” is found in s108-5. Subject to the requirements under the Act, CGT may apply whenever an individual disposes of their cryptocurrency.12 This may include situations where the cryptocurrency is:

  • sold or gifted
  • traded or exchanged fiat or crypto
  • converted to fiat currency.

Should the cryptocurrency be held as a personal asset, however, capital gains (where the asset was acquired for less than A$10,000) (and losses) are disregarded.

Fringe Benefits Tax Assessment Act 1986 (Cth)

Provision of bitcoin by an employer to an employee in respect of their employment may amount to a property fringe benefit for the purposes of subsection 136(1).13

In international trade transactions involving blockchain there are, of course, taxation considerations such as nexus requirements (ie, connection of the taxpayer and/or transaction with Australia) the characterisation of income (eg, from mining a bitcoin), classification of the activity and underlying asset as subject to the capital gains tax regime,14 income tax regime, and/or goods and services tax regime. Bilateral treaties for the avoidance of double-tax may also apply with regards characterisation of income and tie-breaker rules concerning the right to tax.15

International smart contract disputes

Smart contracts (being non-financial themselves) can be used in financial contexts, such as ICOs, transfer pricing arrangements etc. Generally speaking, when it comes to smart contracts coded on a public or private blockchain, the machinery for its execution is unavoidably set in motion. Accordingly, the parties’ opportunity to affect the transaction ex post will be suspended. 

Disputes concerning smart contracting could nonetheless arise with respect to:

  • whether the contract is legally enforceable
  • establishing a contractual relationship between the parties in the event of a missing element of the contract, or incomplete terms
  • remedies available where a smart contract fails to operate as expected, or obligations under the smart contract have not been fulfilled by one or more parties
  • the governing jurisdiction.

Problems giving rise to legal issues involving smart contracts used in international trade

Is the contract legally enforceable?

Smart contracts can be regarded as a legally binding agreements (ie, they are agreements that utilise the blockchain and code (which itself lacks the elements of a contract) to automatically and securely execute obligations when certain conditions are met).16 The Electronic Transactions Act 1999 (Cth) provides a legal framework to enable electronic commerce to operate in the same way as paper-based transactions.17

What is the legal position of parties if there are incomplete terms?

Remedies such as rectification (ie, implement the parties’ true intentions by seeking to “rectify” the smart contract coding) and/or equitable remedies may apply. Evidence such as prior negotiations may assist in determining whether the agreement between the parties is properly reflected in the code of the smart contract.

Obligations under a smart contract have not been fulfilled by one or more party to the contract

This would be addressed by the operation of the blockchain itself (see example above).

What is the governing jurisdiction?

Since blockchain is decentralised and accordingly lacks a central authority, a conclusive determination of the applicable legal jurisdiction and most effective dispute resolution forum for clients – unless expressly provided for – is obscured. 

A smart contract (as with a paper-based or traditional contract) that is drafted well should incorporate a clause specifying the applicable jurisdiction, dispute resolution options to parties, and under what circumstances they may apply. For example, an international trade agreement concerning the sale and purchase of goods may refer to INCOTERMS (ie International Commercial TERMS) and terms of sale (such as FOB shipping or FOB destination).

International dispute resolution and smart contracts

Dispute resolution options are available to clients where a blockchain platform (whether it be public, private or hybrid blockchain) such as a smart contract lacks a clear dispute resolution clause. There are two different approaches to dispute resolution for smart contracts.

Traditional dispute resolution – smart contracts in international trade 

The first approach accepts that smart contracts can operate within the existing contract law framework and can be adjudicated by the courts or existing alternative dispute resolution procedures.18

Dispute resolution provisions

Civil Dispute Resolution Act 2011 (Cth)

Forum: Federal Court of Australia; Federal Circuit Court: s5.

Other Relevant Provisions: Sections 15 and 16 (excluded proceedings).

International Arbitration Act 1974 (Cth)

Forum: Any court in Australia: s3.

Other Relevant Provisions: Section 7 (enforcement of foreign arbitration agreements). Section 15 (International Commercial arbitration – Model Law definition).

Blockchain-based dispute resolution options 

The second approach contemplates smart contracts as distinct legal tools rather than digital alternatives to traditional legal contracts. Blockchain technologies and smart contracts may create new legal systems, or a new Lex Cryptographia.19 There are several characteristics of blockchain-based technologies and smart contracts (which utilise blockchain), such as its anonymity, automatic execution and tamper-resistance, that existing legal infrastructure is not equipped to deal with. Instead, these disputes require a “distributed jurisdiction” – that is, blockchain-based governance. 

Dispute resolution modalities and methods

Organisation: Mattereum.

Dispute resolution modality: Adjudication embedded into organisational structure.

Method: Adjudication as a standard governance protocol.

Organisation: LTO Network.

Dispute resolution modality: Embedded in “live contract”.

Method: Agreed “deviations” in workflows and off-chain arbitration.

Organisation: Sagewise.

Dispute resolution modality: Pre-agreed smart contract monitoring agent.

Method: Monitors and freezes smart contracts to pre-empt disputes.

Organisation: Kleros.

Dispute resolution modality: Independent online dispute resolution mechanism.

Method: Crowd sourced jury system.

Organisation: Blockchain Arbitration Forum.

Dispute resolution modality: Stand-alone dispute resolution service.

Method: Smart contract arbitration library and independent arbitration.

Organisation: Jury.Online.

Dispute resolution modality: Embedded in smart contract.

Method: Randomly selected jury pool.

Organisation: Enigma.

Dispute resolution modality: Secret contracts.

Method: Privacy-enforcing computation.

The development and use of blockchain-based dispute resolution options is, however, in its infancy.

Legal practitioner tips and traps in dispute resolution options and mitigation

Prevention is often a better option than cure. Ideally, dispute resolution guidelines or a clause should be incorporated in smart contracts and ICOs. Table 6 highlights key tips for legal practitioners when advising clients seeking to utilise blockchain to conduct commercial transactions. 

Considerations for clarity in a dispute resolution clause

Applicable law

Parties should agree on how and where disputes are to be resolved and what law is to apply. Without this consensus, there is an enormous scope for disputes – particularly where decentralised organisations run on a blockchain housed on servers in different countries. 

Legal practitioners should consider peripheral factors concerning the regulatory state or jurisdiction, taking into account requirements under the Electronic Transactions Act 1999 (Cth). 

While not expressly required under the Act, it is prudent to include in any smart contract some mandatory dispute resolution code. Unlike the United States where a number of state jurisdictions have passed specific regulations around blockchain and smart contracts, Australia has not.

Non-binding negotiation or mediation

Parties could insert within a smart contract that they will seek to undertake non-binding resolution mechanisms if disputes arise. This is non-binding negotiation or mediation. Negotiation is bilateral, between disputing parties, while mediation always involves a third independent party acting as a facilitator. 

In theory, there is a high level of disorder costs associated with both two-sided negotiation and third-party mediation, mostly because the agreements are non-binding (ie, the success of these mechanisms requires the mutual consent of the parties) and therefore hold-up problems remain. Further, given that both mechanisms are non-binding, their outcomes would not feed back into the smart contract and execute automatically.

Binding private arbitration by a chosen body

Parties could specify an arbitrator to resolve disputes. 

In conventional arbitration, the arbitrator will make a ruling on issues as they see fit. Interestingly, this institutional possibility could be theoretically binding because the output of the dispute could feed back into the smart contract as an oracle. 

For such an approach to be effective, however, the outcomes of the arbitration would need to be standardised so that they can be executed automatically. It would be expected that this institutional possibility would have lower disorder costs (given the reduction in capacity of individuals to hold-up or disregard the outcome of dispute resolution), but higher levels of dictatorship costs (due to the more centralised powers of the arbitrator). 

While technology-related matter lists in civil courts are budding,20 if parties instead opt to resolve their disputes by arbitration then they can address the problem by selecting arbitrators who have the necessary expertise.

Territorial court jurisdiction with binding judgments

There are a number of ways these judgments could be binding. If the parties exist in a similar jurisdiction they could be enforced through that jurisdiction itself. Alternatively, courts could have standardised judgments that feed into smart contracts as oracles. This form of dispute resolution would feed back into the smart contract, lowering the potential for hold-up. 

Court judgments would require more specific standards to feed back into the smart contract code, otherwise the judgment would rely on the parties to the contract being within that jurisdiction. Further, there are potentially higher costs at this institutional possibility, given the uncertainties about how territorial courts would consider the blockchain infrastructure.

Draft an arbitration agreement

A suitably drafted arbitration agreement will likely make it easier to resolve a dispute in the parties’ preferred manner. 


Article 7 of the UNICITRAL Model Law on International Commercial Arbitration (Model Law)21 could be utilised for commercial transactions involving blockchain and blockchain platforms that include smart contracts. It outlines two options to determine whether an arbitration agreement may be implied or otherwise incorporated:

  • Definition and Form of Arbitration Agreement (Option I). This option requires a written arbitration agreement, which “is met by an electronic communication if the information contained therein is accessible to be useable for subsequent reference . . .” It could include smart contracts or electronic data interchange, provided that “. . . the reference . . . make[s]sic that clause part of the contract”.
  • Option I contains a broad Definition of Arbitration Agreement, which is taken to constitute “. . . an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not”. 

INCOTERM rules are recognised by UNICITRAL as the global standard for the interpretation of the most common terms in foreign trade. For the Model Law to apply, however, practitioners should advise clients of the need for an arbitration clause to be included in commercial transactions that utilise smart contracts.


There is no specific statute in Australia governing a dispute on a public or private blockchain. For example, problems may arise when a smart contract fails to deliver on its promise or does not behave in a way that was expected by the parties. The legal consequences of these circumstances give rise to their own peculiar problems. Problems arise in identifying pseudonymous parties, deciding jurisdiction and options for the non-litigious resolution of the dispute. These problems vary in magnitude and volume depending on the types of blockchain networks and environments that underpin the smart contracting. For example, the public Bitcoin blockchain is permissionless and operates as a financial transaction network. Smart contracts have very different features to those that may arise in private chains where users are known to the system. For private-based blockchain platforms, however, and in the absence of specific provision for dispute resolution or mechanism on the blockchain platform, dispute resolution options will revert to existing dispute resolution avenues – for now, at least. 

Concluding comments

Where the use of blockchain and other DLT become the norm in commercial and international trade, a greater duty of care by coders and/or legal practitioners overseeing the blockchain may be inevitable. In order to circumvent “blocks” that blockchain can create in disputes involving international commercial transactions, legal practitioners should be on the lookout for the most effective dispute resolution solution if required. The tips and traps identified in this article can further serve as a checklist for legal practitioners and legal engineers to exercise appropriate due diligence in the next frontier of commercial trade platforms and the most effective dispute resolution options – and navigate the road-blocks in the interim. ♦

Dr Sarah Hinchliffe is a barrister and solicitor (High Court of Australia and Supreme Court of Victoria) and is affiliated with RMIT. 

1. Distributed ledgers are a form of distributed computing that comprises copies of a database that are automatically kept in sync with each other and can be used to move information and ownership of digital assets. Blockchain is one type of DLT. Other DLTs include DAG, Hashgraph, Holochain, Tempo (Radix) – each with its own way to reach an agreement while storing information on a ledger and without a central authority to broadcast the records to every member. See
2. Jake Goldenfein and Andrea Leiter, “Legal Engineering on the Blockchain: ‘Smart Contracts’ as Legal Conduct”, 2018, 29 Law Critique 141-149; Scott McKinney, Rachel Landy, and Rachel Wilka, “Smart Contracts, Blockchain, and the Next Frontier of Transactional Law”, 2018, 13 Washington Journal of Law, Technology & Arts 313, 328.
3. Sinclair Davidson, Primavera De Filippi and Jason Potts, “Blockchains and the economic institutions of capitalism”, 14 Journal of Institutional Economics (2018) 639-658.
4. See Reggie O'Shields, “Smart Contracts: Legal Agreements for the Blockchain”, 2017, 21 North Carolina Banking Institute Journal 177, 185-6.
5. For an explanation of each component of a block, and the coding requirements for the verification and storage function that are key features of blockchain, see, “Learn Me A Bitcoin” (accessed 16 June 2019) available at
6. For example, in 2019 HSBC used blockchain for a Letter of Credit between Australia and China: see Pedro Gonçalves, HSBC uses blockchain for letter of credit between Australia and China, International Investment (3 April 2019) at See also Phillipa Ryan, “Smart Contract Relations in e-Commerce: Legal Implications of Exchanges Conducted on the Blockchain,” 7 Technology Innovation Management Review (2017) 10, 14.
7. Note 6 above.
8. Eg, Paige v Bitconnect Int’l PLC, No. 3:18-cv-00058-JHM, at 3 (WD Ky, 30 Jan 2018).
9. See ATO TD 2014/25 Income tax: is bitcoin a “foreign currency” for the purposes of Division 775 of the Income Tax Assessment Act 1997 (ITAA 1997)? (“Proceeds from the sale of cryptocurrency held as trading stock in a business are ordinary income, and the cost of acquiring cryptocurrency held as trading stock is deductible.”)
10. See ATO TD 2014/27 Income tax: is bitcoin trading stock for the purposes of subsection 70-10(1) of the Income Tax Assessment Act 1997 (ITAA 1997)? (accessed 30 April 2019).
11. See ATO IT 2668 Income tax: barter and countertrade transaction (accessed 30 April 2019).
12. See ATO TD 2014/26 Income tax: is bitcoin a CGT asset for the purposes of subsection 108-5(1) of the Income Tax Assessment Act 1997 (ITAA 1997) (accessed 30 April 2019).
13. See ATO TD 2014/28 Fringe benefits tax: is the provision of bitcoin by an employer to an employee in respect of their employment a property fringe benefit for the purposes of subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (accessed 30 April 2019).
14. United States v Coinbase, Inc, No. 17-cv-01431-JSC, 2017 WL 5890052, at *6-7 (N.D. Cal. Nov. 28, 2017).
15. Eg, Article 4 of the OECD Model Tax Treaty, and Article 4 of bilateral tax treaties for the avoidance of double taxation.
16. This article does not discuss legal issues or risks with regards digital signatures. But see, Articles 8 and 9, United Nations Convention on the Use of Electronic Communications in International Contracts (Electronic Communications Convention) (2005) GA res 60/21; Electronic Transactions Act 1999 (Cth); Electronic Transactions (Queensland) Act 2001 (Qld).
17. See further Raskin, note 13 above, 305-7. See also Ryan, note 5 above, 12.
18. Primavera De Filippi & Samer Hassan, “Blockchain Technology as Regulatory Technology: From Code is Law to Law is Code” (2018) available at <>; Mykyta Sokolov, Smart Legal Contract as a Future of Contracts Enforcement (Working paper, 2018) available at <>.
19. See Primavera De Filippi and Aron Wright 2018, Blockchain and the Law: The Rule of Code, Harvard University Press, 2018, 28.
20. England, for example, has an Intellectual Property Enterprise Court and a Technology and Construction Court.
21. As adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006.

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