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SMART COURTS, SMART CONTRACTS, AND THE
FUTURE OF ONLINE DISPUTE RESOLUTION

Julien Chaisse* and Jamieson Kirkwood**

ABSTRACT

This article presents a critical assessment of online dispute resolution

("ODR"), (particularly in its evolved form involving smart courts and smart
contracts) ("ODR+"), which is a mechanism that China may consider for
settling its Belt & Road Initiative ("BRI") disputes. As the first article to
address the emerging dispute settlement technologies in the BRI context, it
suggests guidance for policy makers and practitioners. Furthermore, the
article asks the key question of whether ODR+ can result in a more
convenient and efficient processing of BRI disputes and hence be
assimilated into (and potentially fill some of the gaps of) the current BRI
dispute settlement framework. Additionally, whilst attention is also given to
recent proposals for such ODR+ (and the implementation of ODR+) in
China and certain other States who participate in the BRI, it is more
significant to address whether the BRI as a whole should (and can) embrace
ODR+ as regards dispute settlement; alternatively, whether embracing
ODR+ might merely be an artificial capitulation to the apparent conditions
of modern society (a vanity project) more than a superior system for
administering dispute settlement.

I. INTRODUCTION

ODR, which is defined as "the introduction of information and

communication technology (ICT) into the processes of dispute resolution,"
has already developed significantly in China.' Although ODR originally

* Professor, School of Law, City University of Hong Kong and co-founder of the Internet
Intellectual Property Institute (IIPI). The authors would like to thank Samantha J. Rowe,
Conway Blake, Rishabh Chhabaria, Li Bin, Cecilia Xu Lindsey, Megha Kamboj, Ved
Thakur, Michael Yip, Peter Lu, and Penelope Nevill for their useful conunents and
suggestions, as well as all participants of the workshops "A New Frontier? Exploring Cyber-

62
 2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 63

aimed primarily at introducing a more convenient dispute resolution

mechanism for e-commerce disputes, 2 it has now evolved to include smart
courts3 and become part of a "narrative of blockchain technologies and
smart contracts 'taking over' the law" 4 (what this article calls "ODR+"). In

Related International Disputes" (Twenty Essex and Debevoise & Plimpton, London
International Arbitration Week, May 2021) and "Smarts Courts in China" (Beijing Normal
University, June 2021) for their helpful feedback on previous drafts of this article. The views
expressed herein by the authors are their own personal ones.
** Barrister (Middle Temple, England and Wales) and Research Fellow, Faculty of Law,
Chinese University of Hong Kong.
1Alison (Lu) Xu, Chinese JudicialJustice on the Cloud: A Future Call or a Pandora'sBox?
An Analysis of the 'IntelligentCourt System' of China, 26 INFO. &. COMM. TECH. L. 59
(2017), https://www.tandfonline.com/doi/pdf/10.1080/13600834.2017.1269873. See
generally Tian Lu, The Implementation of Blockchain Technologies in Chinese Courts, 4
STAN. J. BLOCKCHAIN. L. & POL'Y 102 (2021), https://stanford-
jblp.pubpub.org/pub/blockchain-in-chinese-courts.
2 See Kamal Halili Hassan et al., The Use of Technology in the TransformationofBusiness
Dispute Resolution, 42 EUR. J.L. & ECON. 369-81 (2016),
https://www.proquest.com/openview/86d 14b5b81d69528fe521c96fl7472fd/1 .pdf?pq-
origsite=gscholar&cbl=33320; Dory Reiling, Beyond Court Digitalizationwith ODR, 8 INT'L
J. CT ADMIN. 1, 6 (2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999333;
Jeremy Barnett & Phillip Treleaven, Algorithmic Dispute Resolution The Automation of
ProfessionalDispute Resolution Using AI and Blockchain Technologies, 61 COMP. J. 399,
399-408 (2018), https://academic.oup.com/comjnl/article/61/3/399/4608879; Primavera De
Filippi & Aaron Wright, BLOCKCHAIN AND THE LAW: THE RULE OF CODE (2019); Orna
Rabinovich-Einy & Ethan Katsh, Blockchain and the Inevitability of Disputes: the Role for
Online Dispute Resolution, 2 J. DISPUTE RESOLUTION 47-75 (2019),
https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1837&context=jdr.
3 See e.g., George G. Zheng, China's GrandDesign ofPeople 's Smart Courts, 7 ASIAN J.L.
Soc. 561 (2020), https://www.cambridge.org/core/journals/asian-journal-of-law-and-
society/article/chinas-grand-design-of-peoples-smart-
courts/476879522161B47A5BE10DBC4BDE8215 (suggesting that "Chinese smart courts
are embedded in China's larger strategy of capturing new opportunities offered by the
information and communications technology revolution" and that China is "unique in its way
of constructing a 'smart-courts' system"); Li Xiaohui, Research on the Building of China's
Smart Court in the Internet Era, 8 CHINA LEGAL SCI. 30-55 (2020),
https://heinonline.org/HOL/LandingPage?handle=hein.journals/chlegscien8&div=25&id=&p
age=; Changqing Shi et al., The Smart Court-A New Pathway to Justice in China? 12 INT'L
J. CT. ADMIN., 1-19 (2021), https://www.iacajournal.org/articles/10.36745/ijca.367.
4 Pietro Ortolani, Smart Contracts, ODR and the New Landscape of the Dispute Resolution
Market, in Blockchain, Law and Governance 216 (Benedetta Cappiello & Gherardo Carullo
eds., 2021). See also Jia Wang & Chen Lei, Will Innovative Technology Result in Innovative
Legal Frameworks? Smart Contracts in China, 26 EUR. REV. PRIV. L. 921, 923 (2018),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3311919# ("[I]n 2017, more than half of
the world's approximately 400 blockchain-related patent applications originated from
China"); Chengrong Chen, Study on the Improvement of Chinese ContractSystem Based on
Smart Contracts, 248 ADVANCES IN SOC. SCI, EDUC. & HUMANITIES RSCH. 263 (2018),
https://www.atlantis-press.com/proceedings/icsser-18/25904804; Esther Salmer6n-Manzano
& Francisco Manzano-Agugliaro, The Role of Smart Contractsin Sustainability: Worldwide
Research Trends, 11 SuSTAINABILITY 3049 (2019), https://www.mdpi.com/2071-

&
64 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

this regard various commercial platforms internationally began to show a

varied interest in ODR and slowly these entities started to commercialize
their own ODR systems.5 Hence, several big-name ODR systems such as
eBay's dispute resolution platform, 6 Smartsettle,7 VirtualCourthouse,s and
Modira evolved.9
In recent years, various government entities have also shown interest in
ODR.' 0 The Office of Government Information Services" and the National
Mediation Board1 2 in the United States are promoting and adopting ODR as
an effective method of resolving problems with the citizens. Similarly, In
India, the practice of Lok Adalat is gaining popularity. Lok Adalat is
considered one of the Alternative Dispute Resolution ("ADR") mechanisms,
where disputes/cases pending in the court or at the pre-litigation stage are
settled amicably. 13 Lok Adalat earlier used to be an offline exercise.
However, last year, SAMA, the newly evolved ODR platform in India,
collaborated with the District Legal Services Authorities of states like
Rajasthan, Bihar, and Kerala to efficiently conduct online Lok Adalats.1
On March 3, 2021, the Chinese Ministry of Justice issued a guideline
pushing for the development of China's "internet arbitration systems."' 5 The

1050/11/11/3049; Zibin Zheng et al., An Overview on Smart Contracts:Challenges,

Advances and Platforms, 105 FUTURE GEN. CoMP. Sys. 475 (2020),
https://www.sciencedirect.com/science/article/abs/pii/SO167739X193 16280; Pietro Ortolani,
Self-Enforcing Online Dispute Resolution: Lessons from Bitcoin 36 OXFORD J. LEGAL STUD.
595, 629 (2016), https://academic.oup.com/ojls/article-abstract/36/3/595/1752378.
5 Thomas Gigilione, Recent Growth and Developments on Online Dispute Resolution in
SoutheastAsia, WORLD MEDIATION ORGANIZATION (Mar. 23, 2019),
https ://worldmediation.org/recent-growth-and-developments-on-online-dispute-resolution-in-
southeast-asia.
6 Dispute Resolution Overview, EBAY,
https://pages.ebay.com/services/buyandsell/disputeres.html.
7 Resolving Disputes through Negotiations, SMARTSETTLE, https://www.smartsettle.com
8 Online Arbitration andMediation, VIRTUAL COURTHOUSE,
http://www.virtualcourthouse.com.
9 Modria, TYLER TECHNOLOGIES, https://www.tylertech.com/products/Modria.
10
Ethan Katsh, ODR: A Look at History, MEDIATE.COM
https://www.mediate.com/pdf/katsh.pdf.
" Office of Government Information Services, Online Dispute Resolution, NATIONAL
ARCHIVES, https://www.archives.gov/ogis.
12 National Mediation Board, Use of ODR for Resolving Conflicts, NATIONAL MEDIATION
BOARD, https://nmb.gov/NMBApplication.
13National Legal Services Authority, LokAdalat, NALSA, https://nalsa.gov.in/lok-adalat.
14 Richa Banka, Lok Adalat Held Online, HINDUSTAN
T. (Aug. 10, 2020),
https://www.hindustantimes.com/cities/lok-adalat-held-online/story-
6HtKmag2TJDKwAPJkYkm2L.html.
1 Vincent Chow, China Pushesfor Increase in Online Dispute Resolution as It Reboots
Economy, LAW.COM (Mar. 19, 2020), https://www.law.com/international-
edition/2020/03/1 9/china-pushes-for-increase-in-online-dispute-resolution-as-it-reboots-
economy.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 65

recently-published guideline highlighted the importance of ODR in

accomplishing the aim of restoring economic growth while also controlling
the spread of COVID-19. It encourages dispute resolution organizations to
improve their online capabilities, such as online case management systems
and interfaces. The recommendations urge arbitration institutions to broaden
their usage to cover disputes arising from a return to work after a lengthy
absence, such as financial concerns, labor disputes, and work injury
compensation.
Furthermore, in recent years China has arguably become a global
leader in the development of ODR+.1 6 However, ODR+ mechanisms have
not been implemented in conjunction with China's Belt and Road Initiative
(hereinafter "BRI") project, meaning dispute settlement lacks a single,
unified and well-structured dispute settlement mechanism ("BRI DSM").17

See e.g., Xu, supra note 1, at 60; Jie Zheng, The Role of ODR in Resolving Electronic
16

Commerce Disputes in China, 3 INT'L J. ODR 41-68 (2016),

https://www.researchgate.net/publication/311669062_The_Role_of_ODR_in_ResolvingEle
ctronic_Commerce Disputes_inChina; Xuhui Fang, Recent ODR Developments in China, 4
INT'L J. ODR 32-37 (2017),
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijodr4&div=20&id=&page=;
JE ZHENG, ONLINE RESOLUTION OF E-COMMERCE DISPUTES : PERSPECTIVES FROM THE
EUROPEAN UNION, THE UK, AND CHINA (1st ed., 2020); Carrie Shu Shang & Wenli Guo, The
Rise of Online Dispute Resolution-Led Justice in China:An InitialLook, 7 ANU J.L. & TECH.
119-48 (2020), https://anujolt.org/article/17429-the-rise-of-online-dispute-resolution-led-
justice-in-china-an-initial-look.
17 See Guiguo Wang, The Belt and Road Initiative in Questfor a Dispute Resolution
Mechanism 25 ASIA PAC. L. REV. 1, 16 (2017),
https://www.tandfonline.com/doi/abs/10.1080/10192557.2017.1321731?journalCode=rplr20;
Olga Boltenko, Resolving DisputesAlong the Belt and Road: Are the Battle Lines Drawn? 19
ASIAN DISPUTE REV. 190, 194 (2017),
https ://kluwerlawonline.com/journalarticle/Asian+Dispute+Review/19.4/ADR2017036;
Yanning Yu, China's Implementation of ts "One Belt One Road" Initiative: Legal Challenges
andRegulation By Law, 16 ASIAN J. OF WTO & INT'L HEALTH L. & POL'Y 121, 133 (2021);
Jiaxing Hu & Jie Huang, Dispute Resolution Mechanisms and Organizationsin the
Implementation of One Belt, One Road Initiative: Whence and Whither, 52 J. WORLD
TRADE 815-837 (2018),
https://kluwerlawonline.com/journalarticle/Journal+of+World+Trade/52.5/TRAD2018035;
JULIEN CHAISSE & JFDRZEJ GORSKI, THE BELT AND ROAD INITIATIVE : LAW, ECONOMICS, AND
POLITICS (2018); JIngzhou Tao & Mariana Zhong, The ChangingRules ofInternational
Dispute Resolution in China'sBelt andRoad Initiative, in CHINA'S BELT AND ROAD
INITIATIVe 305, 305-320 (Wenxiang Zhang et al. eds., 2018); Meng Chen, The Reforming
Chinese Chapterof InternationalDispute Resolution Under the Belt and Road Initiative, 34
PAC. REVIEW 469, 469-89 (2021),
https://www.tandfonline.com/doi/abs/10.1080/09512748.2019.1677749?journalCode=rpre20;
CHINA AND INTERNATIONAL DISPUTE RESOLUTION IN THE CONTEXT OF THE 'BELT AND ROAD
INITIATIVE' (Wenhua Shan et al. eds., 2021); Weixia Gu, Belt and RoadDispute Resolution:
New Development Trends, in 36 CHINESE (TAIWAN) YEARBOOK OF INTERNATIONAL LAW AND
AFFAIRS (2018), 150-69 (Ying-Jeou Ma ed., 2020); Xu Qian, The Legal Legitimacy of the
China InternationalCommercial Court: History, Geopolitics, and Law, ASIA PAC. L. REV.
66 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

This article argues that ODR+ is well placed to fill this gap, especially since
ODR+ is also a natural extension of China's "digital silk road" introduced in
2015.18 As such, the purpose of this article is not to describe the dispute
settlement challenges in the BRI context but rather to kickstart a discussion
of the use of ODR+ as a means of BRI dispute settlement.
Nevertheless, the significant challenges with dispute settlement in the
BRI context can be restated briefly as follows. All of the challenges
generally relate to the fact that there is no specific BRI treaty (such as a Free
Trade Agreement ("FTA")).' 9 Firstly, it is unclear what the concepts of
"BRI" and "BRI disputes" are. 20 Secondly, it is unknown who can
participate in BRI dispute settlement. 21 Thirdly, the optimal means to settle a
BRI dispute has not been defined, especially since the States participating in

(2021), https://www.tandfonline.con/doi/full/10.1080/10192557.2020.1856310; Julien

Chaisse & Jamieson Kirkwood, Adjudicating DisputesAlong China'sNew Silk Road:
Towards Unity, Diversity or Fragmentationof InternationalLaw?, 68 NETHERLANDS INT'L L.
REV (Aug. 2021),
https://www.researchgate.net/publication/354223277_Adjudicating DisputesAlong China's
_NewSilkRoadTowardsUnity Diversityor FragmentationofInternational_Law.
18 See Hong Shen, Building a DigitalSilk Road? Situating the Internet in China's Belt and
Road Initiative, 12 INT'L J. COMM. 2683, 2684 (2018),
https://ijoc.org/index.php/ijoc/article/view/8405; Guo Huadong, Steps to the DigitalSilk
Road, 554 NATURE 25, 27 (2018), https://www.nature.com/articles/d41586-018-01303-y;
Krzysztof Kozlowski, BRI and its DigitalDimension: Twists and Turns, 11 J. SCI. & TECH.
POL. MGMT. 311, 324 (2018), https://www.emerald.com/insight/content/doi/10.1108/JSTPM-
06-2018-0062/full/html; MIREIRA PAULO, CHINA-EUROPE INVESTMENT COOPERATION: A
DIGITAL SILK ROAD IN THE BELT & ROAD INITIATIVE IN THE GLOBAL ARENA (Yu Cheng et al.
eds., 2018); Kerry Brown & Anna Burjanadze, The DigitalSilk Road: Upgradingthe
" 6+I-" Cooperation?,in CHINA AND THE NEW SILK ROAD: CHALLENGES AND IMPACTS ON
THE REGIONAL AND LOCAL LEVEL (Harald Pechlaner et al. eds., 2020); Bora Ly, Challenge
andPerspectivefor DigitalSilk Road, 7 COGENT BUS. & MGMT. 1804180 (2020),
https ://www.tandfonline.condoi/full/10.1080/23311975.2020.1804180.
19 See Heng Wang, China'sApproach to the Belt and Road Initiative: Scope, Characterand
Sustainability22 J. INT'L ECON. L. 29 (2019), https://academic.oup.com/jiel/article-
abstract/22/1/29/5272447?redirectedFrom=fulltext (suggesting that the loose structure of the
BRI is a strength providing "maximum flexibility."); Julien Chaisse & Mitsuo Matsushita,
China's 'Beltand Road' Initiative: Mapping the World's Normative andStrategic
Implications, 52 J. WORLD TRADE 163 (2018).
20See Zeng Lingliang, ConceptualAnalysis ofChina'sBelt and Road Initiative:A Road
Towards a Regional Community of Common Destiny, 15 CHIN. J. INT'L L. 517, 517-541,
(2016), https://academic.oup.com/chinesejil/article-abstract/15/3/517/2555332.
2 See Boltenko, supranote 17, at 192 ("No State ratification is required to become a 'Belt
and Road jurisdiction', no legislation needs to be passed and no government is required to
accept or reject the initiative"'); Heng Wang, The Belt andRoad InitiativeAgreements:
Characteristics,Rationale, and Challenges, 20 WORLD TRADE REV. 282, 282-305 (2021),
https://www.canbridge.org/core/journals/world-trade-review/article/abs/belt-and-road-
initiative-agreements-characteristics-rationale-and-
challenges/03 9DAB52FAB8899C278793 C442F8EA06.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 67

the BRI (hereinafter "BRI Countries"2 2 ) vary significantly in geopolitical

terms. 23 Fourthly (and as a consequence of the preceding reasons), BRI
disputes are not treated in a uniform way; instead, many different types of
BRI disputes can be identified, such as investment disputes or trade
disputes, which may lead to "strategic forum shopping" since BRI disputes
have "overlapping jurisdictions." 24 This means that investment disputes
might go to investment arbitration but trade disputes might go to the WTO,
for instance.
Part II of this article explains further how ODR has evolved as a
concept and introduces how ODR+ can be utilized in the settlement of BRI
disputes. In Part III this article summarizes the developments regarding
ODR+ in China and selected other BRI Countries. Part IV of this article
explains how a BRI smart court would work and then introduces some
examples of smart contracts that are relevant from a BRI dispute settlement
perspective. In Part V, this article examines the potential means for China to
introduce a common ODR+ framework in the BRI, presenting an analysis of
how ODR+ can be assimilated into the existing BRI dispute settlement
framework and introducing some global approaches towards ODR. Part VI
of this article introduces some of the limitations of ODR+ in the BRI dispute
settlement context. Part VII concludes.

II. ODR AS THE FOURTH PARTY IN BRI DISPUTE RESOLUTION

This section presents an explanation of how ODR has evolved as a

concept and then introduces how ODR+ can be utilized in the settlement of
BRI disputes. The ODR industry only began to emerge after 1998 and was
initially understood solely as a means of resolving disputes vis-a-vis "an
online entity rather than a physical entity." 2 5 However, ODR "evolved

22
See STATE INFORMATION CENTER OF CHINA,
Country Profiles,
https://eng.yidaiyilu.gov.cn/info/iList.jsp?cat_id=10076 (listing 143 countries in July 2021).
23 See KENNETH BRANDT & MICHAEL KAN, CHINA IN INTERNATIONAL ARBITRATION
LAW 136
(J. Carter ed., 7th ed. 2016) ("A unified system will undoubtedly promote greater certainty
for parties from legally distinctive geographies in the region that are involved in dispute
resolution"); Patrick Norton, China'sBelt andRoad Initiative: Challengesfor Arbitration in
Asia, 13 U. PA. ASIAN L. REV. 72 (2018), https://scholarship.law.upenn.edu/alr/voll3/iss2/3.
24 Ernst-Ulrich Petersmann, International Settlement of Trade and Investment Disputes Over
Chinese 'SilkRoad Projects' Inside the European Union, in A LEGAL ANALYSIS OF THE BELT
AND ROAD INITIATIVE (2020) 45, 55-56.
25
ETHAN KATSH & JANET RIFKIN, ONLINE DISPUTE RESOLUTION: RESOLVING CONFLICTS IN
CYBERSPACE 2-5, 47 (1st ed., 2001). See also COLIN RULE, ONLINE DISPUTE RESOLUTION FOR
BUSINESS: B2B, E-COMMERCE, CONSUMER, EMPLOYMENT, INSURANCE, AND OTHER
COMMERCIAL CONFLICTS (1st ed., 2002); David Larson, Online Dispute Resolution:
Technology Takes a Place at the Table, 20 NEGOTIATION J. 129, 129-3 5 (2004).
68 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

greatly in its fairly short life," 2 6 and the emergence of dispute resolution via
the internet ("e-ADR" 27) also introduced the idea of technology being the
fourth party in dispute resolution, i.e., stepping away from a triangularidea
of dispute resolution of two disputants and one neutral party towards a
rectangular idea involving two disputants, one neutral party, and one
computer. 28
While the term "ODR" has changed from its original usage, since there
is still a divide between the original understanding of ODR and its modern
equivalent, in this article, we use the term "ODR+" to include all technology
that assists or affects dispute resolution, such as smart courts and smart
contracts, but also artificial intelligence ("Al"), big data and the blockchain
(amongst others). 29 Technology is now the generic term for all of the above
and remains the fourth party in dispute resolution (for now). Over time
technology might become the neutral party, and dispute resolution may
revert to a triangular idea of dispute resolution.
Returning to the BRI, this article will use the concept of ODR+ and
focus on the two distinct innovations of smart courts and smart contracts
(which incorporate all of the technologies mentioned). The concepts of
smart courts and smart contracts will also be considered separately since the
use of both (or either) has the potential to reshape BRI dispute settlement. In
such a way, ODR+ can play a role in building the BRI DSM; there is a

26 Ethan Katsh & Colin Rule, What We Know and Need To Know About Online Dispute
Resolution, 67 S.C.L. REV. 329, 344 (2016),
https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=4166&context=sclr. See also
Arthur Ahalt, What You Should Know About Online Dispute Resolution, 20 THE PRACTICAL
LITIGATOR 21, 21-28 (2009), http://montyahalt.com/know-about-online-dispute-resolution.
27 The first involvement of national governments with ODR was in the e-commerce industry.
See e.g., Ambassador Charlene Barshefsky, U.S. Trade Representative, Electronic Commerce
in American Trade Policy, FTC Conference Remarks in US PERSPECTIVES ON CONSUMER
PROTECTION IN THE GLOBAL ELECTRONIC MARKETPLACE (June 1999),
https://www.ftc.gov/sites/default/files/documents/publicevents/u.s.perspectives-consumer-
protection-global-electronic-marketplace/990609global.pdf; OECD WORKING PARTY ON INFO
SEC. & PRIVACY, Building Trust in the Online Environment: Business-to-ConsumerDispute
Resolution (Dec. 2000),
https ://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DSTI/ICCP/REG/
CP(2001)2&docLanguage=En.
28 KATSH & RIFKIN, supra note 25, at 93.
29See also John Zeleznikow, Can Artificial Intelligence and Online Dispute Resolution
EnhanceEfficiency and Effectiveness in Courts? 8 INT'L J. CT. ADMIN. 30, 30-45 (2017),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999339; Michael J. Dennis, APEC
Online Dispute Resolution Framework, 6 INT'L J. O.D.R. 138, 138-143 (2019),
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijodr6&div=14&id=&page=;
Wendy CarlsonIncreasingAccess to Justice Through Online Dispute Resolution, 6 INT'L J.
O.D.R. 17, 17-31 (2020),
https://www.elevenjournals.com/tijdschrift/ijodr/2020/1/IJODR_2352-
5002 2020 006 001 003.
 2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 69

vacuum in the BRI dispute settlement context, and ODR+ can be a way to
(partially) fill this vacuum.
Please note that this article attempts to highlight the main features of
ODR+; however, more detailed and comprehensive studies of these
technologies can be found elsewhere. 30 Instead, the focus of this article is on
the application of ODR+ to BRI dispute settlement.

A. From the "Multi-DoorCourthouse" in the US, to the "Smart Courts" in

the BRI

Smart courts are the modern equivalent of the "multi-door

courthouse." 3' In his seminal paper, Frank E. Sander introduced the idea that

30
See e.g. RICHARD E. SUSSKIND, ONLINE COURTS AND THE FUTURE OF JUSTICE
(1st ed.
2019); THE CAMBRIDGE HANDBOOK OF SMART CONTRACTS, BLOCKCHAIN TECHNOLOGY AND
DIGITAL PLATFORMS (Larry A. DiMatteo et al. eds., 2020); Melissa A. Kucinski & Colin
Rule, ODR Overview andIntroduction, 59 FAMILY CT. REv. 208, 208-210 (2021),
https://heinonline.org/HOL/LandingPage?handle=hein.journals/fmlcr59&div=23&id=&page
=; Zhu-Mei, S. H. I., & Chongqing Bijun Law Firm, The Quality ofBig Data in the
Construction of Smart Courts, EASTERN FORUM (2019),
https://caod.oriprobe.com/articles/55965981/TheQualityofBigDataintheConstruction
of_Sma.htm; Junlin Peng & Xiang Wen, The Rise of Smart Courts in China: Opportunities
and Challenges to the Judiciaryin a DigitalAge, 1 NORDIC J.L. & SOC. REV. 345, 345-372
(2020), https://tidsskrift.dk/nnjlsr/article/view/122167; Zibin Zheng et al., An Overview on
Smart Contracts: Challenges, Advances and Platforms, 105 FUTURE GEN. COMP. SYS. 475-
491 (2020), https://www.sciencedirect.com/science/article/abs/pii/SO167739X19316280;
Conference Report, Massimo Bartoletti & Livio Pompianu, An EmpiricalAnalysis ofSmart
Contracts:Platforms, Applications, and Design Patterns, (International conference on
financial cryptography and data security (Mar. 18, 2017) (Sep. 06, 2021, 10:30AM)
https://arxiv.org/pdf/1703.06322.pdf; Doron Menashe, A CriticalAnalysis of the Online
Court, 39 U. PA J. INT'L L. 921, 921-53 (2018),
https://scholarship.law.upenn.edu/jil/vol39/iss4/1/; Richard M. Re & Alicia Solow-
Niederman, DevelopingArtificially IntelligentJustice, 22 STAN. TECH. L. REv. 242, 242-289
(2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3390854; Esther Salmer6n-
Manzano & Francisco Manzano-Agugliaro, The Role of Smart Contractsin Sustainability:
Worldwide Research Trends, 11 SUSTAINABILITY 3049 (2019), https://www.mdpi.com/2071-
1050/11/11/3049.
31 See Frank E. Sander, The Multi-Door Courthouse, 3 BARRISTER 18-42 (1976). Following
Sander's seminal work, his ideas were developed by several others including Larry Ray
Anne L. Clare, The Multi-Door CourthouseIdea: Building the Courthouseof the Future
Today, 1 OHIO ST. J. DISP. RES., 7, 7-54 (1985), https://kb.osu.edu/handle/1811/75850;
Gladys Kessler & Linda J. Finkelstein, The Evolution ofMulti-Door Courthouse, 37 CATH.
U.L. REv. 577-590 (1988),
https://scholarship.law.edu/cgi/viewcontent.cgi?article=1897&context=lawreview; Ericka B.
Gray, A Day in the Life of a Multi-DoorCourthouse, 9 NEGOT. J. 215-221 (1993),
https://link.springer.com/article/10.1007%2FBF01000695; Jeffrey W. Stempel, Reflections
on JudicialADR and the Multi-door Courthouse at Twenty: FaitAccompli, Failed Overture,
or FledglingAdulthood, 11 OHIO ST. J. DISP. RES. 297, 297-395 (1996),
https://scholars.law.unlv.edu/facpub/202; Carrie J. Menkel-Meadow, Mothers andFathersof

&
70 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

there should be a "screening process" of all disputes, through which disputes

could then be channeled toward the appropriate forum, such as adjudication,
ombudsman, mediation, etc. 32 However, whilst Sander imagined that court
clerks would conduct the screening process, in smart courts, technology
replaces the court clerks. Indeed, smart courts are defined as dispute
settlement, which "relies on computer technologies that enable big data use,
blockchain formation and advisory and determinative forms of artificial
legal intelligence," which truly defines the modern equivalent of the "multi-
door courthouse ."33
In the BRI dispute settlement context, the implementation of smart
courts represents the first way that ODR+ can participate in the BRI. Smart
courts have already been introduced in many places, including China. 34 As a
system of advanced case management, smart courts have massive potential
in the BRI in two main ways. First, smart courts can minimize the
possibility of forum shopping since smart courts can determine the forum
best placed to resolve the dispute. Second, smart courts can increase access
to justice, since in BRI dispute settlement, there is a very real problem of
one State not trusting dispute settlement conducted outside of that State .35
However, with a centralized smart court, the "algorithmic approaches [can
be] even more trusted than human-powered resolutions." 36

B. The PotentialRole of "Smart Contracts"In BRI Dispute Settlement.

Invention: The IntellectualFoundersofADR, 16 OHIO ST. J. DisP. RES. 1-37 (2000),

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1542&context=facpub.
32 Id. See also Sander, supra note 31, at 19. As the "multi-door courthouse" was introduced
around twenty years before the emergence of ODR, ODR was not yet an option to be
included in the "multi-door courthouse." See also KATSH & RIFKIN, supra note 31. In their
second chapter "A Brief History of ODR", they divide the history of ODR into three phases:
(i) pre-1995; (ii) 1995-1998 and (iii) 1998 onwards.
33 Shi et al., supra note 3, at 1. See also Katsh & Rule, supra note 26, at 339 ("[T]he multi-
door courthouse is an apt model for ODR systems designers, because online processes can
offer a nearly infinite range of 'doors' customized for nearly every kind of dispute.").
34 See also Orna Rabinovich-Einy & Ethan Katsh, The New New Courts, 67 AM. UNIV. L.
REV. 165, 189-200 (2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3508460
(presenting examples including the Australian "e-courtroom," the UK's "Money Claim
Online" and "Online Solutions Court," Canada's "Civil Resolution Tribunal," the
Netherlands "Rechtwijzer," the US "Matterhorn" court processes and the New York
"ODR debt collection pilot."); John Sorabji, The Online Solutions Court-A Multi-door
Courthousefor the 21st Century, 36 CIV. JUST. Q. 51, 51-69 (2017),
https ://www.lawlibrary.vic.gov.au/collections/indexed-articles/online-solutions-court-multi-
door-courthouse-21st-century; SUSSKIND, supra note 30.
35 For example, a Chinese party is likely to request Chinese applicable law and jurisdiction
and a non-Chinese party is likely to request either their own domestic law and jurisdiction or
a neutral law and jurisdiction.
36 Katsh & Rule, supra note 31, at 343.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 71

The second way that ODR+ can participate in BRI dispute settlement is
via smart contracts. Although smart contracts originated in Bitcoin and other
cryptocurrencies (independently from ODR), smart contracts are predicted
to be the future of ODR-and even the future of law. 3 7 Smart contracts are
"computer code that is placed on a blockchain," which have a "self-
performing, self-enforcing quality" since the code is immutable, meaning
the code by default cannot be changed, thus ensuring performance. 38
In the BRI dispute settlement context, the use of smart contracts has the
potential to be a game-changer since the use of smart contracts potentially
eliminates the need for courts altogether, i.e., by forcing agreements to be
made through code instead of judges. 39 In particular, since smart contracts
consist of "if/then" clauses in code (which provide for each obligation and
eventuality), once formally created, smart contracts are self-enforcing,
running in the cloud and when an "if/then" clause switches from false to
true, automatic enforcement is triggered. 40 Therefore, smart contracts
potentially go much further than the case management system of smart
courts and generate automatic adjudication by Al. This is also particularly
welcome in the BRI, since: First, there would not be the concern as to which
State is hosting the adjudication since the computer would conduct the
enforcement automatically. Second, there would not be a concern as to the
governing rules, since smart contracts are "the rules that participants have
collectively signed up to that govern the evolution of the 'facts' in the
distributed ledger" (blockchain), allowing the distributed ledger
(blockchain) to be "authoritative with respect to the existence, status, and
evolution of the underlying legal agreements they represent." 41
Smart contracts can also be understood as the equivalent to "escrow-
based dispute resolution." 42 This concept again comes from Bitcoin and is
that the transactions are locked by a multi-signature wallet and only
unlocked by the keys of both parties or by an adjudicator (which is a
computer that makes and enforces an award automatically). 43

III. DEVELOPMENTS REGARDING ODR+ IN CHINA AND SOME OTHER BRI

COUNTRIES

37 See, e.g., Ortolani, supra note 4, at 218 (stating that "Bitcoin... was just the beginning: it
was a proof of concept, showing that self-enforcing ODR is possible).
38 THE CAMBRIDGE HANDBOOK OF SMART CONTRACTS,
supra note 30, at 4.
39 Amy J. Schmitz & Colin Rule, Online Dispute Resolutionfor Smart Contracts,J. DISP.
RES.
40 103, 107 (2019), https://scholarship.law.missouri.edu/facpubs/726.
Id.
41 Barnett & Treleaven, supra note 2, at 403.
42 Ortolani, supra note 4, at 217.
43 See Satoshi Nakamoto, Bitcoin: A Peer-to-PeerElectronic Cash System (2008),
BITCOIN.ORG, https://bitcoin.org/bitcoin.pdf.
 72 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

China is positioned to lead the BRI in dispute settlement via ODR+ and
this section summarizes the development of smart courts and smart contracts
in China.44 Additionally, a summary of the developments in selected other
BRI Countries (namely the United Arab Emirates (UAE), Malaysia, and
Kazakhstan) is also presented to demonstrate that China does not have a
monopoly on ODR+ and can consider the approaches made in its partner
BRI Countries. There are also other BRI Countries (such as Pakistan, 45
South Korea, 46 and Singapore 47 ), and non-BRI Countries (such as
Netherlands, 48 UK, 49 India,50 and the US5 1 ) which have also introduced
aspects of ODR+.52

A. China

Smart courts: Quite apart from the launch of three internet courts5 3
(with Hangzhou reported to be the world's first), the basic structure of a

44 Xu, supra note 1, at 60 (stating that China has been developing ODR since around 2003).
45 See, e.g., Khushbakht Qaiser et al., The Workable Modalities of Online Dispute Resolution
in Pakistan, 5 GLOB. L. STUD. REV. 39-46 (2020),
https://www.researchgate.net/publication/348677082_The_Workable_Modalities_of_Online_
DisputeResolution_in_Pakistan.
46 Hassan et al., supra note 2, at 374.
47 Id. at 374-375.
48 See, e.g., Laura Kistemaker, Rechtwiizer and Uitelkaar.nl: Dutch Experiences with ODR
for Divorce, 59 FAMILY CT. REv. 232, 232-243 (2021),
https://onlinelibrary.wiley.com/doi/abs/10.111 1/fcre.12570.
49 See, e.g., ZHENG, supra note 16.
50 See, e.g., G. Mahibha & P. Balasubramanian, A CriticalAnalysis of the Significance of the
e-CourtsInformation Systems in Indian Courts, 20 LEGAL INFO. MGMT. 47-53 (2020),
https://www.canibridge.org/core/journals/legal-information-management/article/abs/critical-
analysis-of-the-significance-of-the-ecourts-information-systems-in-indian-
courts/B016EE3CE400E922ED6C2F3CBDA93682; John Clammer & Mathew Byrne, The
Village Says "No ": Why Online ADR is Not (Yet) Working in Rural India, 3 LAw, TECH.
HUMANS 133-147 (2021), https://lthj.qut.edu.au/article/view/1564.
51 See e.g., R. James Williams, Taking a Shot: Access to Justice, Judging andE-Court, 59
FAMILY CT. REv. 278, 278-293 (2021),
https://onlinelibrary.wiley.com/doi/abs/10.111 1/fcre.12574.
52 Detailing the ODR developments in these jurisdictions will not add substantially to the
analysis in this article.
53 Hangzhou Internet Court was founded in Aug. 2017, Beijing Internet Court and
Guangzhou Internet Court were founded in Aug. and Sep. 2018. See Xiaohui, supranote 3, at
45. See also Xuhuai Fang, Recent Development ofInternet Courts in China, 5 INT'L J.
ONLINE DIsP. REs. 49-60 (2018), https://www.elevenjournals.com/tijdschrift/ijodr/2018/1-
2/IJODR_2352-5002_2018_005_102_006; Huang-Chih Sung, Can Online Courts Promote
Access to Justice? A Case Study of the Internet Courts in China, 39 THE COMP. L. & SEC.
REP. 105461 (2020), https://en.x-mol.com/paper/article/1306395284937609216.

&
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 73

nationwide smart court in China has already been formed. 4 This consisted
of three steps: (1) the establishment of a "shared website" for all courts in
China to conduct all operations online, (2) the establishment of a judicial
transparency platform," and (3) the deep integration of technology into the
courts. 56 This occurred following the Outline for National Informatization
Development Strategy introduced in 2016,7 which incorporated the smart
courts construction and two strategic five-year plans.58 These strategies and
reform plans continued the robust reforms regarding the use of technology
in the Chinese Courts (ongoing since the 1990s). 59 To further cement this
structure (and make the system of smart courts public-facing), China has
also already implemented the China Judicial Process Information Online,
China Court Hearing Online, China Judgments Online, and China
EnforcementInformation Online.60
Smart contracts: With regards to smart contracts in China, although
cryptocurrency is banned by the People's Bank of China, the ban did not
affect blockchain research. 6' Therefore, smart contracts are being rapidly
developed by both the public and the private sector. Indeed, in the private
sector especially, smart contracts are widely used, for instance, in financial
services, the food industry, logistics, legal services, intellectual property,
and many other sectors. 62

B. UnitedArab Emirates

5 See The Opinions of the Supreme People's Court on Accelerating the Building of Chinas
Smart Court (April 20, 2017) LAWINFOCHINA.COM,
http://lawinfochina.com/display.aspx?id=063 8cd6db0c2689fbdfb&lib=law&EncodingName=
big5.
5 See Xiaohui, supra note 3, at 33.
56 See id. at 31.
5 The Outline for National Informatization Development Strategy, Unofficial English
Summary (July 27, 2016), http://hk.lexiscn.com/latestmessage.php?id=.
58 ST. COUNCIL P.R.C, State CouncilReleases Five-Year Plan on Informatization, (Dec. 27,
2016),
http://english.www.gov.cn/policies/latestreleases/2016/12/27/content_281475526646686.ht
m; The FourthFive-Year Reform Plan of the People's Courts (Feb. 26, 2014)
CHINALAWTRANSLATE.COM (Sept. 6,2021, 10:30 AM)
https://www.chinalawtranslate.com/en/court-reform-plan.
5 See Xu, supra note 1, at 61-68. Important projects to build the smart court include the

SCALE project in 2015 (System Engineering on National Judicial Information), the Jilin e-
court and the e-commercial court in Zhejiang province.
60
Id. at 41.
61 See Wang & Lei, supra note 4, at 926.
62See id. at 927 ("In China, the blockchain technology is booming. Both public and private
sectors have adopted smart contracts that are run on blockchain systems.").
74 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

Smart courts: The UAE (and Dubai in particular) has a progressive

approach towards smart courts. The UAE has long been the leading country
in e-commerce innovation in the Middle East (demonstrated by its 2002 e-
transactions law) and the UAE is now a leader in smart courts as well. 63
Smart contracts: The UAE (including Dubai) is arguably a world leader
regarding smart contracts, having had a comprehensive blockchain strategy
since 2017 and the world's first blockchain court in 2018.64

C. Malaysia

Smart Courts: Malaysia is a progressive country with regards to smart

courts and had already introduced a "complete E-court system" in 2011.65
Malaysia has also introduced a specific technology court and is also a
pioneer in the Islamic sector, introducing several innovations, including E-
Shariah.66
Smart Contracts: Malaysia is also progressive with its use of smart
contracts (particularly as regards financial transactions). For instance,
despite its ban on Bitcoin, the Central Bank of Malaysia is keen on
developing expertise regarding smart contracts and blockchain (and has
initiated this by promulgating the Financial Technology Regulatory
Sandbox Framework in 2016).67 Immediately afterward several fintech

63 Virginia L. Jeker et al., E-TransactionLaw and Online Dispute Resolution: A Necessity in

the Middle East, 20 ARAB L.Q. 43, 44-50 (2006).
64 Schmitz & Rule, supra note 39 at 108-109. See also Reem Alsayegh & Nicholas
Edwards,
DIFC Courts and Smart Dubai to Launch World's First "Court of the Blockchain," HOGAN
LOVELLS ENGAGE (July 31, 2018),
https://www.engage. hoganlovells.com/knowledgeservices/news/difc-courts-and-smart-dubai-
to-launch-worlds-first-court-of-the-blockchain.
65 Conference Report, Kamal H. Hassan & Maizatul F. Maizatul, The E-CourtSystem in
Malaysia, 2ND INT'L CONF. ON ED. & MGMT. TECH. 240 (2011),
http://www.ipedr.com/voll3/46-T10012.pdf; see also Hassan et al., supra note 2, at 360.
66 Wan Satirah Wan Mohd Saman & Abrar Haider, E-Shariah in Malaysia: Technology
Adoption Within Justice System, 7 TRANSFORMING GOv'T, 94-106 (2013),
https://www.researchgate.net/publication/263556375_E-
Shariah_in_Malaysia _Technologyadoptionwithinjusticesystem; Umar A. Oseni et al.,
The Feasibility of Online Dispute Resolution in the Islamic Banking Industry in Malaysia:An
EmpiricalLegalAnalysis, 60 INT'L J.L. & MGMT. 34-54 (2018),
https://www.emerald.com/insight/content/doi/10.1108/IJLMA-06-2016-0057/full/html; Ani
M. Mohammed et al., Organizational Implications of Technology Adoption at the Malaysian
Civil Courts, 22 J. LEGAL, ETHICAL & REG. ISSUES 1-5 (2019),
https ://www.abacademies.org/articles/organizational-implications-of-technology-adoption-at-
the-malaysian-civil-courts-7947.html
67 See Nor Zain et al., Smart Contract in Blockchain: An ExplorationofLegal Frameworkin
Malaysia, 27 INTELLECTUAL DISCOURSE 595, 602 (2019),
https://www.proquest.com/openview/2f37c6537b5bfc686fdaf1f62dc523 81/1?pq-
origsite=gscholar&cbl=826340; CENTRAL BANK OF MALAYSIA, FinancialTechnology
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 75

companies began developing blockchain and smart contract products,

including in the Islamic finance sector. 68

D. Kazakhstan

Smart Courts: Kazakhstan introduced robust ICT in courts in 2013 and

continues this approach through several national strategies including the
Strategy for Digitalizing the Judicial System of the Republic by 2022 that
was adopted by the Supreme Court in 2019.69 The technologies are very
comprehensive, bringing ICT to every aspect of the Kazakh judicial system,
with the highlight being the Torelik system, a judicial Internet portal with
5,000 daily users.7
Smart contracts: Whilst the public sector is constrained due to
Kazakhstan's national strategies (see above), the development of smart
contract and blockchain technologies is booming in the private sector. For
instance, smart contracts are being developed in the finance sector, 7' the
energy sector, 72 supply chain management, 73 healthcare, 74 tourism, and
hospitality (among others).75

IV. SMART COURTS OR SMART CONTRACTS IN THE BRI-WHY NOT HAVE

BOTH?

Regulatory Sandbox Framework (2016),

https://www.bnm.gov.my/documents/20124/761691/pd regulatorysandboxframework_Oct20
16.pdf/a37b9018-18ce-6fd4-d948-a0bf682067a7?t=1580452155718.
68
Id. at 604.
69Nail Akhmetzakirov, DigitalizingKazakhstan's Courts: Keeping Up with the Times, 2
LEGAL ISSUES IN THE DIGITAL ERA 173-177 (2020),
https://lida.hse.ru/article/view/11598/12486.
70 Id. at 174-176.
71 Conference Report, Raigul Doszhan et al., Risk Management in the Financing
ofICO
Projects:Prospectsfor the Use ofModern Technologies in Kazakhstan, 15 E3 S WEB OF
CONFS. (2020), https://www.e3s-
conferences.org/articles/e3 sconf/pdf/2020/19/e3 sconf_btses2020_04017.pdf.
72 Conference Report, Dinar Orazgaliyev et al., Towards the Application ofBlockchain
Technology for Smart Grids in Kazakhstan, 21STINT'L CONF. ONADVANCED COMM. TECH.
273, 273-278 (2019), https://ieeexplore.ieee.org/document/8701996.
73 Bulent Sen et al., Supply Chain ManagementImprovement in Kazakhstan E-Commerce, 9
INT. J. SUP. CHAIN. MGMT. 331-337 (2020),
http://ojs.excelingtech.co.uk/index.php/IJSCM/article/view/4903.
7 Rajesh Gupta et al., HaBiTs: Blockchain-BasedTelesurgery Frameworkfor Healthcare
4. 0, INT'L CONF. ON COMP., INFO. & TELECOMM. SYS. (2019),
https://ieeexplore.ieee.org/document/8862127.
7 Umesh Bodkhe et al., BloHosT: Blockchain EnabledSmart Tourism and Hospitality
Management, INT'L CONF. ON COMP., INFO. & TELECOMM. SYS. (2019),
https://www.semanticscholar.org/paper/BloHosT%3 A-Blockchain-Enabled-Smart-Tourism-
and-Bodkhe-Bhattacharya/022ae27dea00abb814e0 1fl622394e321af73938.
76 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

This section explains how a BRI smart court would work and then
introduces some examples of smart contracts that are relevant from a BRI
dispute settlement perspective. China's Supreme People's Court ("SPC") in
2015-16 proposed the introduction of Smart Courts, which, according to
Chief Justice Zhou Qiang, would make full use of ICT, including cloud
computing, internet, artificial intelligence and big data, to modernize the
judicial capability and the trial system in the country. 76 The aim is "to build
a judicial mechanism that is open, dynamic, transparent, and convenient and
improve public understanding, trust, and supervision of the judicature.""

A. BRI Smart Court

Imagine a BRI-wide smart court, which could be set up using

blockchain technology. There could be either (i) a BRI Smart Court Light
("BRI SCL") or (ii) a BRI Smart Court Complete ("BRI SCC") (the features
of both of which are described below). Imagine that any claimant in a BRI
dispute could simply log on to a BRI smart court web-app and register a
claim. The claimant (and defendant) could receive electronic notifications at
every stage of the claim until it is resolved. All correspondence could be
placed on the system, and wherever possible, the computer would generate
an outcome using Al. Does this sound too incredible? Well, it is essentially
the Torelik system (mentioned above) that is currently used in Kazakhstan.78
Of course, the BRI is very different from Kazakhstan, and the
implementation of a BRI smart court (either light or complete) is
problematic for many reasons, such as those mainly relating to the
sovereignty (and confidentiality) of the parties (i.e., how can a party be
compelled to do something with which they disagree). In this regard,
however, international economic law already provides answers (e.g., the
transactional approach). 79 Still other issues include the difficulty to

76 See Informatization Construction:Full-Service OnlineIntelligent Services, SUPREME

PEOPLE'S COURT GAZETTE (Mar. 20, 2018), http://www.court.gov.cn/zixun-xiangqing-
86452.html; Zhou Qiang: Strengthening IntelligentApplication and Promotingthe
Construction of Smart Court, SUPREME PEOPLE'S COURT GAZETTE (Mar. 31, 2016)
http://www.court.gov.cn/zixun-xiangqing-19052.html.
7 Opinion of the Supreme People'sCourt on Deepening Reform of the People's Courts
Comprehensively: Outline of the Fourth Five-yearReform of the People'sCourts (2014-
2018), CHINA LAW TRANSLATE (Feb. 25, 2015), https://www.chinalawtranslate.com/en/court-
reform-plan/.
78 Akhmetzakirov, supra note 69, at 174-176.
9 The transactional method for conceding sovereignty was developed in the field of
international relations by Kenneth Abbot, Robert Keohane, Stephen Krasner and Kenneth
Waltz and informs us that states may give up sovereignty in a transactional way (where the
state may gain by conceding sovereignty). JEFFREY L. DUNOFF & JOEL P. TRACHTMAN,
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 77

synchronize cases with external forums (be they arbitration centers, even
national courts, etc.)
Figures 1 and 2 show the differences in the operation of a BRI SCL and
a BRI SCC.

Figure 1: BRI Smart Court Light (BRI SCL)

The key difference is that the BRI SCC would be linked to an official
register of BRI projects "BRI Project Registry" (hosted on the blockchain).
This would make the BRI SCC far more robust, since it would only accept
claims in relation to projects registered in the BRI Project Registry.
Furthermore, in such a case the authority of the BRI SCC would be
automatic, meaning that if either party acts in contravention of the SCC's
instructions, then the registered project party could be subject to disciplinary
proceedings or punitive measures (for example, struck off the BRI Project
Registry and blacklisted).

RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE

5 (2009). See also William B. Rubenstein, A TransactionalModel ofAdjudication, 89 GEO.
L.J. 371, 371-438 (2001), https://papers.ssm.com/sol3/papers.cfm?abstract id=256041.
78 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

Figure 2: BRI Smart Court Complete (BRI SCC)

This perhaps sounds authoritarian and unrealistic, but nevertheless it is

an idea to implement a robust BRI smart court (and to improve the integrity
of BRI projects). On the other hand, the BRI SCL is a more realistic idea as
BRI project parties can continue as they are at the moment, although the
BRI SCL could help to improve the transparency of BRI dispute settlement.
Furthermore, the BRI SCL could greatly increase access to justice, the
efficiency of the settlement process and lower dispute resolution costs,
which could be especially appealing to smaller-sized enterprises.

B. Smart Contractsin the BRI

With regard to the use of smart contracts in the BRI, many of the
underlying contracts in BRI projects are appropriate for tokenization
(especially with respect to generic documents relating to fields such as
finance, construction, and manufacturing or logistics). 80 Examples of such
contracts in the finance, construction, and manufacturing or logistics sectors
are provided below.

1) Finance
Smart contracts are particularly appropriate for financial transactions.
This is not surprising considering that smart contracts originated from the

80Tokenizing the contract entails entering it into the distributed ledger (blockchain) in a
digital way (i.e., writing it in immutable code) so that every aspect of the contract becomes a
series of if/then clauses.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 79

technology undergirding many cryptocurrencies. The basic premise is that

after the contract is tokenized, the code will be executed automatically and
impartially by computer systems which "significantly decreases transaction
costs" (since there are no traditional trust-building costs due to the use of
blockchain technology), rendering such contracts much more profitable."'
Examples include complicated and costly letters of credit, bonds, and
security agreements. 82 Additionally, in China, there is also pioneering
research in the context of smart loans.83

2) Construction
The construction industry potentially represents a particularly "fertile
area" for smart contracts, frequently because there is often a need for speed
(especially in international construction contracts where time can be of the
essence).8 4 In BRI projects, it can be expected that parties will be prepared
to consider self-enforcing smart contracts, which potentially provide a win-
win rather than risk the cost, delay, and uncertainty involved in conventional
contract disputes. Using smart contracts can also streamline some of the
contract documentation at the time of entering into the contract rather than
at the time of the dispute.

3) Manufacturing and Logistics

Smart contracts are already starting to appear in the manufacturing and
logistics industries out of the desire to move past opaque information flows
that have long hindered traceability and hassle-free trade. Moreover, there is
already a cloud-based supply chain industry developing blockchain and
allied technologies to solve the previous problems of monitoring assets and
securing traceability.85 Nowadays, smart contracts are expected to shorten
the chain of third-party agents greatly and speed up delivery (which in turn
can reduce the price for the consumer and reduce wastage due to practically
flawless data and process integrity). Many of the manufacturers and logistics
providers deploying or developing such technology are already in BRI
Countries.

81 Wang & Lei, supra note 4, at 924.

82 Schmitz & Rule, supra note 39, at 406.

83 Hao Wang et al., LoC: A New FinancialLoan Management System Based on Smart
Contracts, 100 FUTURE GEN. COMP. Sys. 648-655 (2019).
84 Barnett & Treleaven, supra note 2, at 406.
85
Ajay Kumar et al., Secure Smart Contractsfor Cloud-Based ManufacturingUsing
Ethereum Blockchain, TRANSACTIONS ON EMERGING TELECOMM. TECH. (2020),
https ://onlinelibrary.wiley.com/doi/abs/10.1002/ett.4129.
80 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

V. THE MODALITIES TO IMPLEMENT A COMMON ODR+ FRAMEWORK IN

THE BRI

This section examines the modalities for China to implement a

common ODR+ framework in the BRI and presents an analysis of how
ODR+ can be assimilated into the existing BRI dispute settlement
framework. This section primarily explores China's leadership of the BRI
(from an ODR+ perspective), including the BRI law-making process,
China's network of FTAs, the CICC, and the establishment of new ODR+
organizations. Additionally, we examine the steps made by the United
Nations Commission on International Trade Law ("UNCITRAL") and the
EU towards implementing a common framework for ODR and the World
Bank's approach towards "increasing connectivity" and "outsourcing
justice" via the small states, smart solutions project.

A. China's leadershipof the BRI (from an ODR+ perspective)

Although China only officially began developing the digital silk road in
2015, already by October 2017, China had been perceived as utilizing it to
position itself as a "cyber superpower" (and ODR leader).8 6 Indeed, this
theme was made evident by Chinese President Xi's words that "there can be
no modernization without information technology." 87 In the following
section, we consider whether this leadership contributes to lawmaking in the
BRI.

1) Law-making through BRI leadership

The first way for China to implement a greater role for ODR+ in the
BRI is by directly creating a legislative pathway. This is part of how China
can use the BRI to create international law."" Indeed, it is logical that China
develops law via the BRI. In fact, the BRI includes developments in the law
that are expected to enhance international trade, and ODR is part of that,

86 See Sophie Hunter, China'sInnovative Internet Courts and Their Use of Blockchain
Backed Evidence, CONFLICTOFLAWS.NET (May 28, 2019),
https ://conflictoflaws.net/2019/chinas-innovative-internet-courts-and-their-use-of-
blockchain-backed-evidence; Xinhua, China Reforms JudicialCourts Using Internet
Technologies: White Paper, XINHUANET.COM (Dec. 2019),
http://www.xinhuanet.com/english/2019-12/05/c_138605955.htm.
87 Chinese President Xi Jinping stated this in Feb. 2014 at the opening ceremony of the Office
of the Central Leading Group for Cyberspace Affairs. See Xiaohui, supra note 3, at 32.
88 See e.g., Julien Chaisse & Jamieson Kirkwood, One Stone, Two Birds: Can China
Leverage WTO Accession to Build the BRI?, 55 J. WORLD TRADE 287, 287-308 (2021),
https ://kluwerlawonline.com/journalarticle/Journal+of+World+Trade/55.2/TRAD2021011
(discussion in the WTO context).
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 81

although these measures are also criticized for being primarily designed to
"improve China's image" and to enlarge China's "economic and political
role" in the other BRI Countries."
However, since the BRI exists without a treaty,90 and is made up of
dozens of independent and sovereign States, 91 China is not able to legislate
(on its own) for a more significant ODR+ framework across the BRI.

2) Investment Treaties
Another way for China to implement a greater role for ODR+ in the
BRI is via a free trade agreement. China has an extensive network of FTAs.
According to the UNCTAD database, China currently has 126 active
investment treaties (including 107 Bilateral Investment Treaties and 19 other
Treaties with Investment Provisions). 92 This network is one of the world's
largest, and it has been substantially analyzed. 93 However, none of the
existing investment treaties refer to ODR (or ODR+), meaning that China
would need to either update the existing treaties (which is unrealistic) or
negotiate a new BRI FTA (which seems unlikely). Alternatively, China
could also propose a specific ODR+ treaty, and BRI Countries would be free
to accept or reject such treaty.

3) The China International Commercial Court

A third possible way for China to implement a greater role for ODR+
in the BRI is through updating the procedural rules of the China
International Commercial Court ("CICC"), which was established in 2018

89 Ronald A. Brand, Online Dispute Resolution 17 (U. Pitt. Legal Stud. Rsch. Paper, Working

Paper No. 2019-31, Dec. 2019), https://scholarship.law.pitt.edu/facarticles/457.

90 See Wang, supra note 19.
91 See Norton, supra note 23. Implementation via legislation would be more straightforward
in a customs union like the EU.
92 See InternationalInvestment Agreements: China,
UNCTAD,
https ://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china.
93 Heng Wang, The RCEP and Its Investment Rules: Learningfrom Past Chinese FTAs, 3
CHIN. J. OF GLOB. GOVERNANCE 160, 160-81 (2017),
https://papers.ssm.com/sol3/papers.cfm?abstract_id=2902926; Lai Huaxia & Gabriel M.
Lentner, Paving the Silk Road Bit by Bit: An Analysis of Investment Protectionfor Chinese
InfrastructureProjects Under The Belt & Road Initiative in Julien Chaisse & Jgdrzej G6rski
eds. THE BELT AND ROAD INITIATIVE: LAW, ECONOMICS AND POLITICS 250, 250-283 (2018);
Yuwen Li & Cheng Bian, China's Stance on Investor-State Dispute Settlement: Evolution,
Challenges, andReform Options, 67 NETHERLANDS INT'L L. REV. 503, 503-551 (2020),
https://link.springer.com/article/10.1007/s40802-020-00182-3; Julien Chaisse & Jamieson
Kirkwood, Chinese Puzzle: Anatomy of the (Invisible) Belt And Road Investment Treaty, 23 J.
INT'L ECON. L. 245, 245-269 (2020), https://academic.oup.com/jiel/article-
abstract/23/1/245/5734951.
82 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

as a part of China's SPC. 94 The procedural rules issued in 2018 are quite
brief and do not specifically allow for ODR (or ODR+). 95 Nevertheless, the
CICC was actually designed to operate in some ways as a multi-door
courthouse. This is because the CICC was designed to operate as a "one-
stop shop" for BRI disputes, wherein disputes could be "allocated" to
arbitration or mediation institutions. 96

4) The establishment of ODR+ organizations

Another possible way for China to implement a greater role for ODR+
in the BRI is to establish new organizations. For example, in 2018, Hong
Kong's justice department supported the establishment of eBRAM.hk, a
dedicated online dispute settlement tool for major BRI infrastructure
projects, as an alternative method of resolving BRI disputes online. 97
eBRAM, which stands for Electronic Business Related Arbitration and
Mediation, is however run as a private organization and does not aim to
operate as a public smart court or to specifically support the use of smart
contracts. eBRAM instead has a two-fold objective: first, to cost-effectively
facilitate business negotiations and prevent disputes involving enterprises
worldwide, including in China's BRI region as well as the Greater Bay Area
and Mainland-focused enterprises; second, to meet the demand (driven by
the expansion of e-commerce) for legal and dispute resolution services
across borders to be resolved online utilizing innovative technology and Al.
Nevertheless, eBRAM is an example of a new organization that could be

9 See Provisions of the Supreme People's Court on Several Issues regarding the
Establishment of the International Commercial Courts (effective July 1, 2018), CICC,
http://cicc.court.gov.cn/html/1/219/208/210/817.html; Provisions of the Supreme People's
Court on Several Issues Regarding the Establishment of the International Commercial Court
(Court Explanation No 11 of 2018), CICC, http://www.court.gov.cn/zixun-xiangqing-
104602.html (for English translation see STANFORD, https://cgc.law.stanford.edu/belt-and-
road/b-and-r-texts/20 180701-provisions-re-intl-commercial-courts/); see also Sheng Zhang,
China'sInternationalCommercial Court: Background, Obstacles and the RoadAhead, 11 J.
INT'L DIsP. SETT. 150-174 (2020), https://academic.oup.com/jids/article-
abstract/i1/1/150/5717925/
9 See Procedural Rules for the China International Commercial Court of the Supreme
People's Court (For Trial Implementation) (effective Dec. 5, 2018), CICC,
http://cicc.court.gov.cn/html/1/219/208/210/1183.html; see also Julien Chaisse & Qian Xu,
Conservative Innovation: The Ambiguities of the ChinaInternationalCommercialCourt 115
AM. J. INT'L L. UNB. 17-21 (2021), https://www.canbridge.org/core/journals/american-
journal-of-international-law/article/conservative-innovation-the-ambiguities-of-the-china-
international-commercial-court/CC 1670B2A6771A3115CF2628046E9B73.
96 See Notice of the Supreme People's Court on Inclusion of the First Group of International

Commercial Arbitration and Mediation Institutions in the "One-Stop" Diversified

International Commercial Dispute Resolution Mechanism (effective Dec. 5, 2018), CICC,
http://cicc.court.gov.cn/html/1/219/208/210/1144.html.
97
See EBRAM INTERNATIONAL ONLINE DISPUTE RESOLUTION CENTRE,
https://ebram.org/index.html.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 83

established within the BRI vis-i-vis ODR+ (and eBRAM also has the
potential to evolve and fit into a BRI-wide ODR+ system).

B. GlobalApproaches to ODR (andsimilarinnovations)

This section examines some global approaches to ODR (and similar

innovations). It focuses on three dimensions: (1) UNCITRAL Technical
notes on ODR, (2) the EU's "Consumer ODR" platform, and lastly, (3) the
World Bank's approach towards small states. Firstly, the section discusses
how the fact that UNCITRAL technical notes are mere guidelines, not
regulations, did not help it achieve its desired objective. UNICITRAL was
also perceived to be too early to develop a single ODR regulatory
framework. Secondly, the section discusses the Consumer ODR platform
introduced by the European Union ("EU"), which is user-friendly and runs
parallel to domestic courts. Lastly, it considers the World Bank initiative to
enable some small states to use international trade and telecommunications
technology to outsource various services, including justice.

1) UNCITRAL
In 2010 the UNCITRAL directed its Working Group III to formulate
proposals to implement a global system of ODR in relation to "cross-border
electronic transactions." 98 UNCITRAL had become concerned that
consumer disputes submitted to national courts were becoming increasingly
difficult to handle mainly because of the low-value, high-volume claims,
resulting in a significant disconnect between the low values of the
transactions and the high costs of litigation. 99 The outcome of the Working
Group was a set of Technical Notes on ODR that UNCITRAL finalized and
adopted in 2016. 10 The Technical Notes on ODR were a non-binding
descriptive document and did not generally achieve what was anticipated. 101
The fact that UNCITRAL produced a set of technical notes and not a set of
regulations was seen as a "failure to produce concrete results"-and an

98 See Rep. of UNCITRAL on its Forty-Third Session, U.N. Doc. A/65/17 (2010); Rep. of
UNCITRAL on its Forty-Third Session, U.N. Doc. A/65/17 (2009); 65 U.N. GAOR, Supp.
No. 17 (2010).
99 Philippe Mireze, ODR Redress System for Consumer Disputes, 1 INT'L J. OF O.D.R. 57, 61
(2014),
https://www.elevenjournals.com/tijdschrift/ijodr/2014/1/IJODR_2014_001_001_004.pdf.
100 See UNCITRAL, Technical Notes on ODR,

https ://uncitral.un.org/sites/uncitral.un.org/files/media-
documents/uncitral/en/v1700382_english technical_notesonodr.pdf.
101 See Ronald Brand, PartyAutonomy andAccess to Justice in the UNCITRAL Online
Dispute Resolution Project, 10 LoY. U. CHI. INT'L L. REv. 11-12 (2012),
https ://lawecommons.luc.edu/cgi/viewcontent.cgi?referer=&httpsredir= 1&article=1163&cont
ext=lucilr.
84 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

acknowledgment that it is still not feasible to intertwine national legal

systems, culture, and the needs of countries in various stages of
development and historical experiences "in a single, coherent and consistent
ODR regulatory framework." 0 2 This is something that the BRI should
consider.

2) The EU Approach
The EU introduced an EU-wide "Consumer ODR" platform in 2016,
managed by the European Commission and with instructions in all European
languages.1 03 The platform was established as a "Consumer ODR" platform
(i.e., to assist in resolving e-commerce disputes between European
consumers and European traders) and runs in parallel to national courts as it
does not seek to "deprive consumers or traders of their rights to seek redress
before the courts." 0 4 The platform, which is reported to be easy to use, fast,
and inexpensive, operates via EU traders providing links on their websites to
the EU ODR platform and to certified ODR providers to resolve cross-
border transactions e-commerce disputes in the EU. 0 5 The promulgation of
the EU ODR regulation and the establishment of the EU ODR platform
could also be considered a "pilot" scheme in the EU for the later
introduction of smart courts.1 06

102 See Constantina Sampani, Online Dispute Resolution in E-commerce:

Is Consensus in
Regulation UNCITRAL 's Utopian Idea or a Realistic Ambition?, 30 INFO. & COMM. TECH. L.
1, 3-5 (2021),
https://www.tandfonline.com/doi/abs/10.1080/13600834.2021.187553 9?journalCode=cict20;
Melissa Cole & Robert M. O'Keefe, Conceptualising the Dynamics of Globalisation and
Culture in Electronic Commerce, 3 J. GLOB. INFO. TECH. MGMT. 4-17 (2000),
https://www.tandfonline.condoi/abs/10.1080/1097198X.2000.10856269.
103 Urga Jeretina, Consumer Online Dispute Resolution (ODR): A Mechanism for Innovative

E-Governance in EU, 16 CENT. EUR. PUB. ADMIN. REv. 45, 55 (2018),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3315321. See also Emma Van Gelder,
The EUApproach to Consumer ODR, 6 INT'L J. O.D.R. 219-226 (2019),
https://repub.eur.nl/pub/127104; EUR. COMM'N, Online Dispute Resolution Platform,
https://ec.europa. eu/consumers/odr/main/?event=main.home2. show&lng=EN.
104 Jeretina, supra note 103, at 56. See also Commission Regulation 524/2013 of May 21,
2013, Online Dispute Resolution for Consumer Disputes and Amending Regulation (EC)
No 2006/2004 and Directive 2009/22/EC, https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32013R0524&from=EN; Directive 2013/11, of the
European Parliament and of the Council of 21 May 2013 on Alternative Dispute Resolution
for Consumer Disputes and Amending Regulation (EC) No 2006/2004 and Directive
2009/22/EC, https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32013 L0011 &from=EN.
105 Jeretina, supra note 103,
at 55.
106 See also Julia Hrinle, Encouraging Online Dispute Resolution in the EU and Beyond:
Keeping Costs Low Or Standards High? in RESOLVING MASS DISPUTES 293-314 (Christopher
Hodges & Astrid Stadler eds., 2013),
https://papers.ssrn.com/sol3/papers.cfm?abstractid=2154214; Pablo Cortes & Arno R.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 85

3) "Small States, Smart Solutions" - Proposal of the World Bank

Several international organizations, but chiefly the World Bank, have
been examining the means of increasing the connectivity of so-called "small
states" (countries with a population of less than 2 million). 0 7 In particular,
the World Bank has been considering how some small states use
international trade and telecommunications technology to outsource various
services, including justice, but also banking supervision, public utilities
regulation, medicine, and education. For instance, the World Bank notes
how small Caribbean nations have largely and successfully outsourced
"justice" to two supra-regional courts-the Caribbean Court of Justice and
the Eastern Caribbean Supreme Court.10 In an ODR context, this is notable
because both of these courts have robust e-filing/e-litigation portals.1 09 With
regards to the BRI, the case could be made that the smaller BRI Countries
might be better served by outsourcing BRI dispute settlement to a BRI smart
court.

VI. THE LIMITATIONS OF ODR+ IN BRI DISPUTES

This section introduces some of the limitations of ODR+ in the BRI

dispute settlement context. Here we attempt to organize these limitations
into (A) inherent limitations (for instance, the fact that BRI projects are
often complex); (B) technological limitations (divided into (1) lack of
flexibility, (2) lack of retroactivity, and (3) lack of infrastructure); and (C)
political limitations. However, it must be acknowledged that the limitations
overlap between categories. Also, there is no hierarchy of limitations
intended, as each limitation is important. ODR as a dispute settlement
mechanism has been described as "stinky, repugnant and drab," and

Lodder, Consumer Dispute Resolution Goes Online: Reflections on the Evolution of

European Law for Out-of-CourtRedress, 21 MAASTRICHT J. EUR. & COMP. L. 14-38 (2014),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414098; Maria J. Schmidt-Kessen et
al., Success or Failure? Effectiveness of Consumer ODR Platforms in Brazil and In the EU,
43 J. CONSUMER POL'Y 659-686 (2020), https://link. springer.com/article/10.1007/s10603-
020-09448-y.
107 Other organizations include the UK Commonwealth and the Australian Agency for
International Development. See also SMALL STATES, SMART SOLUTIONS: IMPROVING
CONNECTIVITY AND INCREASING THE EFFECTIVENESS OF PUBLIC SERVICES (Edgardo M. Favaro
ed., World Bank 2008).
108 See CARIBBEAN COURT OF JUSTICE, https://ccj.org/; EASTERN CARIBBEAN SUPREME COURT,
https://www.eccourts.org.
109 See CARIBBEAN COURT OF JUSTICE, E-Filing, https://ccj.org/e-filing-portal/; EASTERN
CARIBBEAN SUPREME COURT, E-Litigation, https://elp.eccourts.org/chrysalis/login.
86 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

therefore it is also to be expected that there similarly will be substantial

criticism of ODR+ mechanisms." 0

A. Inherent Limitations (Highly Complex Projects)

The current understanding of the parameters necessary for the

operation of smart courts and smart contracts is the ability to reduce disputes
down to "single issues . . . resolved [or allocated] acceptably by
algorithms.""I However, it is asserted that only certain kinds of disputes,
namely routine, standardized, uncomplicated, local, and two-party disputes,
could be reduced in such a way, and such simple disputes are rarely to be
found in BRI projects. This is because BRI projects often consist of a
multitude of complicated and connected agreements and frequently involve
several parties with mostly cross-border transactions. Additionally, smart
courts and smart contracts are largely untested with regards to cross-border
transactions, and hence (without implementing legislation) it is hard to see
how the decisions of smart courts and smart contracts in BRI projects could
be relied upon (see also Section C on Political Limitations).
Furthermore, the "self-enforcement" mechanism, an essential feature of
smart contracts, could also prove to be unsuitable for complex and cross-
border BRI projects as the mechanism of escrow (which relies on keeping
the funds stored until the contract has been performed) may be difficult to
reconcile with high-value BRI contracts. In this context, it has been
suggested that the blockchain technologies involved could be used instead
only as case management tools.I 2

B. Technological Aspects

This section introduces the technical limitations of ODR+ in the BRI

dispute settlement context. These limitations are broadly divided into (1)
lack of flexibility, (2) lack of retroactivity, and (3) lack of infrastructure.
Firstly, we argue that frequent alteration or interpretation of terms with
multiple meanings is restricted in smart contracts. This leads to a rigid
process that might not be compatible with legal agreements in BRI projects.
Secondly, this section discusses smart contracts' lack of retroactivity as they
only provide a dispute resolution option if used at the start of transactions.

110 See Robert J. Condlin, Online Dispute Resolution: Stinky, Repugnant,

or Drab?,
18 CARDOZO J. CONFLICT RES. 717, 717-758 (2017),
https://digitalcomnnons.law.unmryland.edu/cgi/viewcontent.cgi?article=2580&context=fac_p
ubs.
" Id. at 723.
112 Ortolani, supra note 4, at 218.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 87

Lastly, it argues that there is a lack of systematic infrastructure and human

resources within the industry as a whole.

1) Lack of Flexibility
Whilst ODR+ mechanisms promote greater certainty in BRI dispute
settlement, the certainty comes from a less flexible and more rigid process.
This is especially the case with regard to smart contracts, where rigidity has
potential disadvantages. For example, if the project data is already registered
in a smart contract, it will be technically challenging to make alterations or
corrections.'i3 However, legal agreements in BRI projects, which could be
multi-year contracts, will often require flexibility to make changes and the
need for open-ended terms that outline performance obligations.
Additionally, in cross-border BRI projects, different legal systems
attach different meanings to common terms or use very different
terminology. For instance, it might be difficult to define what constitutes
appropriate performance (or to foresee the most cost-effective or efficient
manner of performance), and hence one contracting party may promise to
act in "good faith," while another party may promise to use "best efforts." In
such cases, the value of keeping contracts open-ended or ambiguous
(producing more efficient contracts by providing flexibility and smoothing
the negotiation process) might be lost."i4
In the same vein, there might be some open-ended or unstructured
terms that are still "not suitable for being memorialized into the strict logic
of code" (such as representations and warranties), since such terms might
not be able to be fulfilled "solely by referencing data stored or managed
within a blockchain-based network.""' Indeed, such terms (in their current
form) are neither binary nor standard and are perhaps impossible to capture
via the current smart contract apparatus. Instead, it is stated that smart
contracts can only suitably deal with straightforward matters and are "less
capable in dealing with commercial scenarios which may be so complex and
unpredictable that the code would fail to embed all possible answers to all
possible questions."1i6

2) Lack of Retroactivity in Smart Contracts

113 Wang & Lei, supra note 4, at 924-925.

114
Id. at 928-29.
115
Id. at 933.
116 Id. at 940-41.
88 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

Smart contracts only provide a dispute resolution option if used at the

start of transactions (and at all stages throughout the transaction)." 7 This is a
significant limitation, which stems from the fact that (i) smart contracts
consist of "the rules that participants have collectively signed up to"; (ii)
these rules govern the evolution of the "facts" in the distributed ledger
(blockchain); and (iii) accordingly, the distributed ledger (blockchain) can
only be "authoritative with respect to the existence, status, and evolution of
the underlying legal agreements they represent."118

3) Lack of Infrastructure
Besides the other technical limitations, the implementation of ODR+ in
BRI dispute settlement currently faces a significant lack of infrastructure
and human resources especially within the courts, and within industry. If the
infrastructure is substandard, mistakes could be introduced into the ODR+
system and make it less reliable-not to mention that there would be
increased security risks. For example, the code in smart contracts needs to
be written perfectly and precisely (and void of any mistakes). If humans
make "clerical errors while writing the code or entering data," then the
"whole system could be endangered." "9 In the BRI dispute settlement
context, this means that it is essential that future generations of court staff
and lawyers are increasingly technologically savvy. It also requires that a
unified system that can communicate with different countries' courts
systems is established, especially for cross-border transactions. Further, it
would likely also modify the role of third-party agents in BRI projects since
project parties (and lawyers) may have to consult specialist coders of smart
contracts when making new kinds of contracts.

C. PoliticalAspects

There are also several limitations that relate to the political aspects of
implementing ODR+ in BRI dispute settlement. Many of these limitations
are practical and relate to the requirement of BRI-wide implementation,
such as a BRI ODR+ treaty.
Firstly, a substantial limitation regarding the implementation of a BRI-
wide ODR+ dispute settlement system is that there is no BRI-wide
instrument for regulating ODR+. This means that the use and jurisdiction of
ODR+ is subject to national law, and there is no enforcement mechanism.

"1 See also Eliza Mik, Smart Contracts:Terminology, Technical Limitations and Real World
Complexity, 9 LAw, INNOVATION & TECH. 269, 269-300 (2017),
https://papers.ssm.com/sol3/papers.cfm?abstractid=3038406.
118 Barnett & Treleaven, supra note 2, at 403.
119 Wang & Lei, supra note 4, at 924-25.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 89

Although, on the one hand, ODR+ decisions are meant to be self-enforcing,

while on the other hand, smart court and smart contract decisions are
generally not recognized by law.120 This means that ODR+ decisions are still
unreliable (and not enforceable). For instance, the conundrum would likely
lead to complications in cross-border situations in BRI projects, since
"without a meaningful way to enforce a judicial decision, any judicial
decision is almost without real effect." 121 One possible option to make
ODR+ decisions enforceable would be to render such decisions enforceable
in the same way as arbitral decisions (under the New York Convention) or
mediation decisions (under the Singapore Convention).
Secondly, even if the decisions were enforceable, this does not mean
they would be considered fair. Indeed, since the dispute settlement of BRI
projects will often require "complicated legal, moral, and political
judgments to determine outcomes" it is nonetheless difficult to understand at
present "how software algorithms can make the reasonableness
determinations needed" to make and justify the judgments required in cross-
border BRI project disputes.1 22 Additionally, if the BRI ODR+ system is to
be trusted by BRI project parties, it will need to produce outcomes that are
visibly fair and just, and not only convenient, efficient, and cheap. In this
regard, the question of whether an ODR system can deliver will depend on
"whether the algorithms used to run the systems can be programmed to be
reasonable, caring, and fair." 123 Otherwise, the more efficient and less
expensive processing of disputes might be considered "a capitulation to the
conditions of modern society more than a superior system for administering
justice."124
Finally, there are a plethora of remaining practical issues, as follows.
(i) Consent: In connection with the enforcement of ODR+ decisions,
there is a significant issue of consent. It is unrealistic to believe that BRI
project parties can be forced to use smart contracts or take their disputes to a
BRI smart court, but what happens when one party takes the case to a BRI
smart court while the other party rejects the decision? Or, similarly, what
happens if there is partial use of smart contracts?

120Hassan et al., supra note 2, at 371-72 ("Although ODR has created many advantages for
consumers and business alike and has helped e-commerce grow, the absence of uniform laws
has created certain issues for consumers.").
121 Wang & Lei, supra note 4, at 934. For example, consider Licra v. Yahoo, 433 F.3d 1199
(9th Cir. 2005), where a US court refused to enforce the judgment made by a French court
that held the sale of Nazi memorabilia over the Internet to be in breach of the French criminal
code. The judgment created reluctance in France to bring Internet cases before local courts.
122 See Condlin, supra note 110, at 723.
123 Id. at 734.
12
4 Id. at 721.
90 STANFORD JOURNAL OF BLOCKCHAIN LAW & POLICY [Vol. 5.1

(ii) Data protection and privacy: There might be issues due to the
anonymity frequently used in smart contracts where the parties cannot easily
be identified, or conversely, when parties are submitting their information
into the blockchain. There may also be problems produced due to judicial
transparency.
(iii) Jurisdiction: There is also the substantial question of who should
host the smart court. For instance, would the BRI countries be willing to
ratify a treaty where the smart court sits in China? Moreover, would China
be willing to ratify a treaty where a BRI smart court sits in a neutral country,
for instance Singapore?

VII. CONCLUSION

This article has presented a critical assessment of ODR+ mechanisms

to settle BRI disputes (primarily smart courts and smart contracts), and as
the first article to address such emerging dispute settlement technologies in
the BRI context, has suggested some guidance for policymakers and
practitioners.
We have suggested that implementing ODR+ mechanisms in the BRI
can result in more convenient and efficient processing of BRI disputes.
Examples of recent proposals in China and certain other States that
participate in the BRI were given; however, it is acknowledged that there is
a huge difference between implementing ODR+ mechanisms under national
law versus implementing ODR+ mechanisms in accordance with
international law.
The idea of a BRI smart court was distinguished from the use in the
BRI of smart contracts. The two mechanisms could (and should) run in
parallel so as not to exclude non-users of smart contracts from a BRI smart
court. Indeed, a BRI smart court can be implemented immediately, although
it might only have low usage in its early years. Specific suggestions of how
a BRI Smart Court Light could be implemented were made. Use of the BRI
Smart Court Light would be voluntary, and over time, the capacity of (and
confidence in) the institution would grow. It is suggested that to encourage
non-Chinese users, the smart court could be hosted outside of China, for
instance in Singapore (or via Singapore and hosted in the Cloud). Proposals
for a more robust version of a BRI smart court i.e., a BRI Smart Court
Complete, were also made, although it is acknowledged that such a complete
smart court could probably not operate easily without a specific BRI-wide
smart court treaty. This is because it cannot be expected that a BRI smart
court could realistically apply in cases where the BRI project partner's
parent state (in other words, the country where the party has legal
personality) has not signed up to a BRI-wide smart court treaty.
2022] SMART COURTS, SMART CONTRACTS, AND ODR+ 91

The use of smart contracts should be encouraged in the BRI. Although

the use of smart contracts will face many hurdles, largely due to attempts to
condense "open-ended and flexible terms" into "binary, rigid options," it is
believed that smart contracts will improve over time. Additionally, where
flexibility is necessary, there is no reason why the code should not select the
option of a specialist third-party expert. At least in such cases, the contract
would still remain a "self-enforcing" smart contract, as the third-party expert
could be selected by Al (and the expert decision inserted into the
blockchain), and the contract could still be adjudicated smoothly in a binary
fashion. Therefore, embracing ODR+ in the BRI would not necessarily be a
vanity project, but rather a potential means to continue the development of
the digital silk road by distributing justice via Al.