Liabilities associated with distributed ledgers: a comparative analysis

Abstract

The transformative potential of distributed ledger technology (DLT) is attracting significant interest around the world. Many institutions are investing heavily in proof of concept demonstrations, pilot initiatives and the rollout of applications of DLT. Part of the attraction of distributed ledger systems, such as blockchain, lies in their perceived ability to transcend law and regulation. Yet, while the law may be dull and the technology exciting, the impact of the law cannot be simply wished away. With data distributed among many ledgers, legal risks will remain. Legal relationships recorded on, or evidenced by, distributed ledgers may give rise to various forms of liability based on contract, tort, partnership or joint venture structures, specific legislation or breach of fiduciary duties. At the same time, despite existing similarities among common law and civil law systems, the sources of DLT-linked liability may vary substantially across jurisdictions.