smart contracts – FinTech and Blockchain Law Watch

UK JURISDICTION TASKFORCE STATEMENT ON CRYPTO ASSETS AND SMART CONTRACTS – A “WATERSHED MOMENT”

Dec 19 2019

On November 18, 2019, Geoffrey Vos, Chancellor of the UK High Court, announced the launch of a “Legal Statement on Crypto Assets and Smart Contracts,” which he described as a “watershed moment” for English Law. The statement, which can be found here, brings new clarity to the likely status of both smart contracts and cryptocurrencies under English law.

A committee of experts has prepared the statement and, although technically it carries no binding legal authority, it is likely to be regarded as the most authoritative position available until the matters it covers are dealt with specifically by the English courts or by revised legislation.

K&L Gates Becomes One of First Major Law Firms to Implement Own Private Blockchain

Oct 25 2017

Contact: Jeffrey J. Berardi

K&L Gates has undertaken plans to establish an internal, private and permissioned blockchain to assist in the exploration, creation, and implementation of smart contracts and other technology applications for future client use.

“We are hearing from our lawyers globally who are excited about getting hands-on experience working with blockchain applications,” commented K&L Gates Global Managing Partner James Segerdahl. “By investing in this technology that is expected to significantly impact the practice of law, K&L Gates is committed to finding practical and timely solutions that benefit both our clients and the firm.”

Some Limits on Smart Contracts

Mar 16 2017

By Susan P. Altman

Amid the excitement about the promise of smart contracts comes a wet towel over their use. Milos Dunjic argues that the Capabilities of Smart Contracts are Overblown because most people misunderstand the fundamental properties of smart contracts and propose ideas that are not implementable on a practical level. Dunjic addresses the scalability and privacy issues presented by smart contracts.

As for scalability, smart contract code must produce the identical outcome in every node that executes it. Dunjic questions whether a large number of distributed nodes all hitting a “funds transfer” API at the same time might look like a self-inflicted DDOS attack on the API. Would each call to the API receive exactly the same response from the API? Reliability must be absolute in a smart contract.

As for privacy, replicating and storing data on each blockchain participant’s computer does not look like the best way to prevent data breaches. The reality of decentralized networks is that they expand the opportunities for breach. Not surprising, Dunjic’s conclusion is that smart contracts should be used mainly for management of transactions with one database and that interaction with external environments and services should be avoided. For another viewpoint on the privacy problem with suggestions for partial solutions, see Privacy on Blockchain. We’ll watch how the smart programmers address these issues.

Smart Contract Code versus Smart Legal Contracts

Jan 24 2017

By Susan P. Altman

In a recent CoinDesk Op-Ed, Josh Stark makes a useful distinction between smart contract code and smart legal contracts. He describes smart contract code as a program or script executed on a blockchain—this code being what many commentators misleadingly refer to as “smart contracts.” This (mis)use of the phrase has led lawyers to quip that smart contracts are neither smart nor contracts, they’re just code. The better term for blockchain code-enabled legal contracts is “smart legal contracts.”

Although Stark helps us a lot with terminology, his argument goes a little askew in suggesting that smart contract technology enables machine to machine commerce without enforcement by legal entities and therefore is a new tool for solving the problem of trust between trading parties. Individuals and companies are legal entities and at least two of them hold an interest behind every machine operation executing smart contract code. Just because there is no intermediary between the two (or more) parties to the transaction does not mean that traditional legal contract principles do not apply. Smart contract code speeds up and increases integrity in trading transactions by reducing friction in forming, executing and enforcing a contract. It is a new tool in our toolkit, but the toolkit is for building traditional legal contracts. Offer and acceptance, coupled with consideration, are still the basic principles of contracts, whether they are smart, stupid, oral, written or digital.

Building Smart Contracts Trust in 2017-The Lawyer’s Role

Jan 09 2017

By Susan P. Altman

In 2016 we saw a flurry of discussion, a lot of interest, and a little bit of actual experimentation with smart contracts, the computer programs that automatically execute the terms of a contract on a blockchain. What do we need to firmly launch smart contracts into the mainstream and what is the lawyer’s role? A recent article in Coindesk by executives at Tezos argues that we need to conquer three remaining barriers: 1) implementation of formal verification of the smart contract code—a mathematical technique of verifying the integrity of software code; 2) enablement of transparency of the smart contract code by using interpreted code rather than compiled code (a concept meaningful to developers that permits them to more easily inspect code on the blockchain); and 3) development of clear governance mechanisms for the smart contract.

The first two barriers must be solved by software developers. It’s the last item—development of clear governance mechanisms—that will require joining the lawyer’s legal skills with the software developer’s coding skill. Software on the blockchain is immutable, but there has to be a mechanism for correction of the inevitable software error. Here is where the lawyer will tailor the governance processes learned so well in significant outsourcing transactions: governance and committee structure, issue escalation procedures, and change request process. Smart contracts are intended to be part of real contracts, and we lawyers already know the building blocks of well-crafted contracts. Here’s to 2017!

Developing smart contracts for the financial services industry

Nov 03 2016

By Jim Bulling and Meera Sivanathan

With promised benefits such as risk reduction (through blockchain execution), cost reduction and enhanced efficiencies it is easy to understand why the use of smart contracts in the financial services industry is highly anticipated.

The Commonwealth Bank of Australia has successfully used smart contracts in relation to trade finance and the ASX is considering there use in clearing and settlement systems. However, before smart contracts can operate successfully, a few factors must still be addressed:

Immutability: ‘Immutability’ is a key feature of a smart contract stored on a blockchain. A smart contract’s program code does not change once stored on the blockchain – in essence it is permanent. While immutability creates certainty in a smart contract, it does not allow for flexibility. Methods to modify and correct terms of smart contracts are being developed.
Due diligence and accuracy: One risk presented by smart contracts is the possibility that the terms and conditions agreed upon by the contracting parties are not accurately programmed in the smart contract code. In this respect, it is likely that the due diligence process for smart contracts may evolve to be collaboration between both legal and IT professionals.
Legal recognition and framework: In Australia, there is uncertainty about enforceability of a smart contract. A hybrid model using smart contracts for verification and performance combined with using traditional contracts to record the terms and conditions of an arrangement could be a possible solution.
Contractual confidentiality: While smart contracts on a public blockchain generally preserve the anonymity of the contracting parties, it is possible that terms of the smart contract, including those that are highly confidential may be accessible to third parties. Possible solutions, such as the use of private blockchains, are currently being explored.

Blockchain 101 for Asset Managers

Oct 12 2016

By C. Todd Gibson and Tyler Kirk

Over the last two years, it has been difficult to attend any asset management-related event or seminar without hearing the term “FinTech,” and in particular, “robo-advice” and “blockchain.” What is apparent, though, is that many industry participants have little understanding of what blockchain technology is and how it works. This understanding is important in order to identify creative ways of leveraging this technology to increase efficiency.

In the October 2016 edition of The Investment Lawyer, K&L Gates partner Todd Gibson and associate Tyler Kirk published an article intended to give those with a limited understanding of blockchain a baseline of knowledge and to provide an update on current trends with respect to the use of blockchain by fund managers and their service providers. In case you missed it, the full article can be found here.

Blockchain–powered contract management and outsourcing

Sep 28 2016

By Susan P. Altman

Add outsourcing services to the long list of industries that face disruption directly attributable to blockchain, which list already includes financial services, supply chains, IoT, risk management, digital rights management and healthcare. It is well-known that blockchain technology, that is, technology enabling distributed ledgers with continuously maintained and verified blocks of records, promises huge savings and disruption in the financial services industry. IBM has now partnered with the Bank of Tokyo-Mitsubishi UFJ (BTMU) to apply blockchain technology to the design, management and execution of contracts between businesses. IBM and BTMU are piloting a blockchain project to test its usefulness in automating business transactions for which one party has contracted with the other to provide goods or services. Initially, the technology will be used to monitor delivery and usage of equipment with a sensor that embeds information into the blockchain. The information will then automate invoicing and payment processes between the two companies.

Of especial interest to outsourcing lawyers is the announcement that IBM and BTMU will develop smart contracts on a blockchain to improve the efficiency and accountability of service level agreements in multi-party business interactions. It appears the technology is intended to be used in the increasingly common and complex environment of multi-party, multi-vendor services. Lawyers can expect to see more robust service level agreements with service providers within that complex environment, certainly in terms of accountability. However, it remains true that service levels are only as valuable as the relevancy of what is being measured. And that is still a decision that, for now, requires human input.

Tag:smart contracts