CHOICE OF LAW IN INTERNATIONAL COMMERCIAL CONTRACTS: TACIT AND EXPRESS CHOICE IN DIGITAL TRADE

Abstract

This article addresses the complex issues of choosing legal principles in international commercial contracts in the context of globalization and the rapid development of digital commerce. It analyzes the fundamental principle of party autonomy, in particular its explicit (expressly stated in the contract) and implied (determined based on the circumstances) forms. The paper considers the adaptation of traditional legal approaches to modern challenges such as smart contracts, decentralized autonomous organizations (DAOs) and jurisdictional uncertainty. The immutability of smart contracts, while providing commercial certainty, simultaneously gives rise to legal paradoxes and regulatory gaps, as demonstrated in the case of Van Loon v. US Treasury. The need to obtain legal entity status for DAOs creates a market of “legal shells” offered by various jurisdictions (e.g., Wyoming, Switzerland). The emergence of innovative mechanisms such as multi-signature arbitration in dispute resolution leads to the privatization of enforcement proceedings. The aim of the study is to examine the adaptation of traditional legal approaches to modern challenges such as smart contracts, decentralized autonomous organizations, and jurisdictional uncertainty. The paper uses legal analysis and case study methods. The results show that the immutability of smart contracts creates legal paradoxes, while mandatory public law rules limit the voluntary autonomy of the parties.