Blockchain, the underlying technology used by Bitcoin, has implications that reach far beyond the financial services community and banks. This is where new development and implementation may have focussed so far. However, as the technology and its implications become better understood, it will rapidly expand to new industries and verticals.
Blockchain systems operate as a kind of distributed database that store immutable (that is, non-changeable and verifiable) transactional records stored as “blocks” of information. Each block contains a timestamp and is linked or referenceable to a previous block and hence forms part of a larger “block chain”. Blockchains can either be public, private, or a combination of the two, with information accessible to users via “keys”.
Blockchain also works very much like a large distributed, non-centralized network. Each “node” of the network is a processor (or computer server in other words) that stores each block of information processed by that node. Once processed or verified, a transaction record can then be shared with other nodes in the network. This could be anyone in the case of a public blockchain, or only authorized users in the case of a private blockchain.
Blockchain technology has been applied in the finance industry in the payments space. Ripple, for example, allows banks to transact between themselves and with individuals globally by creating a payment platform that allows banks to settle payments in different currencies in real time. Individual payments and currency settlement calculations are made by a decentralized network of processors located at the banks and clients all over the world using Ripple’s payment protocol.
However the technology has many other uses – starting with the ability to better monetize alternative energy to the digitisation of insurance contracts. The insurance industry, in particular, is starting to get serious about investigating, if not yet implementing, blockchain solutions in order to streamline paperwork, manage supply chain issues if not insurance contracts overall, accelerate the processing of insurance claims, and improve the auditability of transaction records.
In fact, the real juice behind blockchain is not bits and bytes, but in fact how events are triggered by electronic code that translates contractual relationships into action – or so-called “smart contracts” that are executed within blockchain networks.
Smart contracts – or the computer protocols that facilitate, verify and enforce agreements – are actually the heart of this revolution. They represent a unique blending of technology and law, usually with regard to payments – but not limited to them. Smart contracts are actually coded binary language triggers along the network that cause certain things to happen when specific conditions are met. For example, Customer A authorizes payment to buy a convertible bond. When market conditions warrant, the bond “smart contract” will then automatically pay Customer A the required coupon payment, convert the bond into a certain pre-determined number of shares, or take some other required action.
Despite the hype, however, there are still vast unknowns – namely the ability of coders to accurately translate legal requirements into transactions that can be understood and retranslated by people – starting with regulators. In terms of payment or other easily defined contractual obligations (such as trade confirmations), the concepts are relatively straightforward. However, as anyone who has looked at even the simplest contract knows, there are many parts of a contract that are not easy to translate into code from natural language – much less decipher downstream. This includes everything from indemnities, warranties, covenants, confidentiality, digital signatures and enforceability if not other pieces in between.
What happens, for example, when the convertible bond bought by Customer A does not react to the right market conditions? Or what happens if the electronic triggers in the smart contract for this convertible bond are activated by the wrong set of market conditions? How will lawyers without coding experience be able to catch such errors? And how will coders without a legal background know what to look for to find them?
While understanding whether payment has been made (for example) is relatively easy to understand by all parties, understanding whether a service has been correctly provided, particularly when translated into and out of digital code, represents a quagmire that is already coming – and with no easy answers.
The legal enforceability of at least part of what smart contracts represent is not far away. Payment and exchange of services or data is the easy part. Redefinition of contractual relationships, however, is where the entire conversation starts to get murky. That is nowhere more obvious when applied to a specific part of “contract” law – namely civil rights.
For those who do not believe that civil rights are in fact a contractual relationship relating to basic property rights (including payment), values, and perhaps even the meaning of citizenship itself, then look no further than perhaps one of the most overlooked parts of civil rights and contract law in the United States.
The Civil Rights Act of 1991, also known as 42 U.S. Code §1981, is a United States labour law and the most recent codification of civil rights in America. In effect, it equates the contractual value of minorities and people with disabilities with that of white men.
In other words, civil rights are the mandatory equalizing of the contractual value of individuals enforced by the state. But that state is only one country.
What happens if there is a contract, for example, between an English multinational and an American citizen for work being performed in Hong Kong?
Do American civil rights laws apply?
Which set of laws should govern a smart contract?
If smart contracts expressly choose New York law, for example, this could mean that the best of American labor and civil rights laws are automatically exported to other countries. But it could also mean that contractual inadequacies, due to a failure to expressly choose a governing law, lead to unexpected results and ultimately undermine basic notions of equality and civil rights.
Further, what is the appropriate forum for resolving disputes under a smart contract?
In a world where contracts that affect payments as well as the terms of employment are becoming increasingly undecipherable, will smart contracts, which can also be used to govern labour agreements, be literally rewritten to eviscerate the concept of equal pay, access to healthcare, and perhaps even the right to negotiate a contract in the first place? And if smart contracts hide or distort important contract terms, how will consumers actually be able to tell if they have gotten what they paid for?
These are some of the big issues which face the entire discussion around blockchain. They are not widely part of the vernacular so far. However, just as bitcoins are electronic “digital currency”, block chain, the master regulator of such systems, could easily become a place where the contractual elements of pay, consumer and civil rights are either enshrined, or eviscerated.
Marguerite Arnold is an entrepreneur, author and third semester EMBA candidate at the Frankfurt School of Finance and Management.
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