Укладення договорів із використанням алгоритмів: старі проблеми та нові виклики в контексті застосування ШІ
Contract Formation Using Algorithms: Old Problems and New Challenges in the Context of AI Application

Summary/Abstract: The relevance of the topic of this article is determined by the widespread practice of contract formation with the use of various algorithms (bots, digital or virtual assistants, etc.) in the modern world. This issue has been studied in legal doctrine since the late 90s, but today, due to the development of artificial intelligence (AI) technologies, contract law faces new challenges, since scenarios may occur where a contract is concluded on different terms than those which the party using the algorithm intended or wished to include in the contract, or even when a contract is formed even though the party did not want it to happen. The purpose of the article is to identify the main challenges arising in modern contractual practice caused by the use of algorithms in the course of contract formation, and to outline the ways to address them. To achieve this purpose, the author has used general scientific and special legal methods of cognition: dialectical, empirical, formal logical, comparative and formal legal methods. The article analyzes the US legislative acts which, for the first time in the world, introduced regulation of the use of algorithms in contractual practice. Particular attention is paid to the analysis of the latest developments of the United Nations Commission on International Trade Law (UNCITRAL) and the European Law Institute (ELI), which have been thoroughly studying the issue of use of algorithms in contractual practice in recent years. Based on the comparative legal analysis, the author formulates recommendations for the regulation of these issues in Ukrainian legislation. Based on this analysis, the author concludes that there is a need to introduce into Ukrainian legislation provisions on: (a) the validity of contracts concluded as a result of the use of algorithms by one or more parties to the contract; (b) attribution of actions performed by an algorithm to the party that applied the relevant algorithm; (c) the consequences of an algorithm performing an action that the party that applied it did not and/or could not foresee.

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