{"title":"Blockchains, Private Ordering, and the Future of Governance","authors":"Jonathan Rohr, A. Wright","doi":"10.1093/OSO/9780198842187.003.0003","DOIUrl":"https://doi.org/10.1093/OSO/9780198842187.003.0003","url":null,"abstract":"Ten years ago Satoshi Nakamoto published the Bitcoin white paper and launched the first Bitcoin protocol. Since then, blockchain’s potential to impact upon a wide variety of relationships and transactions has become evident. Blockchain-based governance is now possible, and as technologists, entrepreneurs, and legal professionals refine its implementation, it will likely become more mainstream. It is no exaggeration to say that a blockchain revolution has begun. Although not as attention-grabbing as blockchain’s earliest uses to facilitate cryptocurrency, the technology’s potential to transform the way business enterprises are governed is no less ground-breaking. This chapter considers blockchain-based governance from an American business law perspective. It argues that, despite the possibility that it will allow parties to rely less on the governance arrangements currently provided by traditional business organizations, it is nonetheless consistent with American business law’s ‘enabling’ approach and the significant room it leaves for private ordering. Furthermore, substitution of blockchain-based for traditional governance does not obviate the need for limited liability and the other advantages of separate legal personhood. Consequently, state-level efforts to accommodate blockchain-based governance in the context of limited liability entities are already appearing. The chapter concludes with a short discussion of some of the challenges that blockchain-based governance presents under American business law.","PeriodicalId":205528,"journal":{"name":"Regulating Blockchain","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123863462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Regulation of Blockchain Token Sales in the United States","authors":"Houman B. Shadab","doi":"10.1093/OSO/9780198842187.003.0014","DOIUrl":"https://doi.org/10.1093/OSO/9780198842187.003.0014","url":null,"abstract":"This chapter provides an overview of how US securities regulation applies to the sale of cryptographic tokens using a distributed ledger, so-called initial coin offerings. Token sale transactions that meet the definition of ‘investment contract’ qualify as regulated securities transactions following the seminal 1946 court decision in the Securities Exchange Commission’s lawsuit against the W. J. Howey company. Currently, there exists substantial legal uncertainty regarding the regulatory classification of token sales involving utility tokens that provide their holders with non-financial, software-based functionality. As implied in a June 2018 speech by a high-ranking SEC official, sales of tokens may initially qualify as regulated securities transactions, yet later fail to qualify as regulated investment contracts if the tokens’ underlying network becomes sufficiently decentralized. Distributed ledger technology is disrupting the nature and operation of early-stage fundraising and access to software services and enabling the sale of digital tokens that operate as a cryptocurrency or provide access to a software service through the use of a blockchain or distributed ledger. The sale of such tokens, so-called initial coin offerings (‘ICOs’), is often in exchange for cryptocurrencies, such as Ethereum or Bitcoin (however, tokens could be sold in exchange for fiat currency). From January to May 2018, globally US$13.7 billion in tokens were sold by 537 companies or projects, an amount greater than all previous time periods combined. This chapter discusses under what circumstances US securities law applies to the sale of such tokens.","PeriodicalId":205528,"journal":{"name":"Regulating Blockchain","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123364544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Smart Contracts","authors":"R. Brownsword","doi":"10.1093/OSO/9780198842187.003.0018","DOIUrl":"https://doi.org/10.1093/OSO/9780198842187.003.0018","url":null,"abstract":"The main purpose of this chapter is to sketch two principal ways in which lawyers are likely to engage with new transactional technologies (such as smart contract applications of blockchain technologies), each form of engagement being characterized by its own questions and conversations. Whereas one form of engagement, ‘coherentism’, focuses on the fit between particular new technologies and the covering law of contract, the other, ‘regulatory-instrumentalism’, focuses on whether the law (relative to particular new technologies) is fit for regulatory purpose. The sketch is refined by drawing further distinctions between ‘transactionalist’ and ‘relationalist’ variants of ‘coherentism’ and ‘rule-based’ and ‘technocratic’ variants of regulatory-instrumentalism. With a view to decoding legal debates about emerging transactional technologies, this sketch is then applied to questions concerning smart contracts in, respectively, business-to-consumer, business-to-business, and peer-to-peer transactions.","PeriodicalId":205528,"journal":{"name":"Regulating Blockchain","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124035231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Blockchain Paradox","authors":"Paolo Tasca, Riccardo Piselli","doi":"10.1093/OSO/9780198842187.003.0002","DOIUrl":"https://doi.org/10.1093/OSO/9780198842187.003.0002","url":null,"abstract":"Abstract This contribution deals with the problem of interoperability of blockchain technologies. Building on the framework offered by Lawrence Lessig, it will be argued that interoperability cannot be viewed as a simple matter of technological design. Blockchain technologies, in fact, give rise to complex ecosystems, which are shaped by both the architecture and social and market forces. The literature has mainly focused on the effects that the blockchain code has determined on the law of contracts. However, the action of the other modalities, in particular those of market and social forces and their interaction with the code has not been deeply investigated. By isolating the reciprocal effects of the different modalities of regulation—in particular, blockchain code and the law, blockchain code and the market, and blockchain code and social norms—this paper intends to fill this gap and sheds some more light on the internal dynamics of public blockchain. Finally, building on the insight so gained, we will explore the problem of interoperability between ledgers by analysing the pros and cons of the solution proposed so far.","PeriodicalId":205528,"journal":{"name":"Regulating Blockchain","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127310484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Global Currencies and Domestic Regulation","authors":"G. Dimitropoulos","doi":"10.1093/oso/9780198842187.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198842187.003.0007","url":null,"abstract":"This chapter identifies cryptocurrencies and other virtual currencies as global currencies that could have a major impact on national jurisdictions. Regulation concerning cryptocurrencies can be described in the terms of the ‘double movement’ that Karl Polanyi identified for the expansion of the market society in the nineteenth and twentieth centuries. Cryptocurrencies have been developed by anti-establishment individuals and groups, and other opponents of the global financial system that—in Polanyi’s terms—belong to a collectivist counter-movement. The effect they have produced, though, is rather to expand global markets and the market system. This has spurred a counter-movement to the counter-movement, or what could be called the ‘anti-countermovement’. The response of the anti-countermovement to the expansion and influence of the global currencies is paradoxical, if not schizophrenic. The anti-countermovement treats global currencies both as currencies and as a technology. This has led to various regulatory measures in different jurisdictions. When viewed as currency, cryptocurrencies are regulated both as money and commodities, leading to an indifferent approach to their regulation or a command-and-control approach or various intermediate approaches. When viewed as a technology, different jurisdictions have taken an enabling approach to the regulation of cryptocurrencies by establishing ‘innovation hubs’ and ‘regulatory sandboxes’ for FinTech companies. This chapter concludes by discussing the dangers of embedding cryptocurrencies through enabling them, namely the problem of more finance, and possibly an internal clash of domestic agencies. The way to mitigate the dangers of embedding through enabling is by regulating the new cryptocurrency intermediaries.","PeriodicalId":205528,"journal":{"name":"Regulating Blockchain","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130001472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Crypto-Security","authors":"P. Hacker, C. Thomale","doi":"10.1093/OSO/9780198842187.003.0013","DOIUrl":"https://doi.org/10.1093/OSO/9780198842187.003.0013","url":null,"abstract":"This chapter analyses the interplay between initial coin offerings (‘ICOs’) and securities regulation, with a particular focus on EU law. ICOs have come to dwarf traditional venture capital funding in the blockchain space. However, the US Securities and Exchange Commission (‘SEC’) has determined that a number of token types constitute securities under US law, with potentially far-reaching consequences for initiators in terms of liability. Under EU law, explicit regulatory or court guidance is lacking at the moment. Against this background, this chapter develops a taxonomy of tokens by differentiating between investment, utility, and currency tokens. It shows that only investment tokens typically qualify as securities under EU law. Currency tokens are exempted because of their proximity to payment services regulation; and utility tokens will, for the most part, fall under EU consumer law, not securities regulation. These results derive from a functional analysis of EU securities regulation and arguably amount to a comparative advantage of EU law vis-à-vis US law in terms of the regulatory burden for token developers.","PeriodicalId":205528,"journal":{"name":"Regulating Blockchain","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123958743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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