Our understanding of contracts continues to evolve. Electronic contracts that have typically taken the form of shrink-wrap, click-wrap, web-wrap, scroll-wrap, multi-wrap and sign-in-wrap agreements have undergone further developments with the introduction of automation in electronic contractual engagements and, more recently, the advent of the so-called "smart contract". Different types of smart contracts exist, including smart contracts that operate on blockchain technology. Despite these developments in commercial and contractual activities, the South African legal framework does not officially recognise smart contracts. The use of the Electronic Communications and Transactions Act, 2002 (ECTA) as a mechanism for the regulatory oversight of smart contracts in South Africa is, in its current form, woefully inadequate and limited in its application to smart contracts. Other jurisdictions, like the European Union (EU), have passed draft legislative and regulatory documentation called the Data Act to address smart contracts, whilst the UK Law Commission has provided recommendations to regulate smart contracts. As South Africa currently has no equivalent to the EU's draft Data Act and has not considered the operation of smart contracts in South Africa, the position in the EU and United Kingdom (UK) is considered in this paper to provide guidelines as to the aspects that it would be necessary to regulate in a South African context.
The emergence of non-fungible tokens (NFTs) in the blockchain environment has prompted many intriguing questions for private law scholars around the world. A question as basic as whether NFTs can be owned has proven difficult in many countries. This is the first research question of our article, which focuses on NFTs created in the Ethereum system by utilizing standard ERC-721. Because these NFTs are identifiable and distinguishable from all other tokens, the notion of owning an NFT is not unthinkable. Yet no universal answer can be offered. Whether NFTs qualify as objects of ownership must be studied at the level of individual legal systems. We argue that NFTs can be owned under Finnish law, with the same probably applying to many other legal systems. Starting with this notion, we pose two further research questions. As the second research question, we ask what problems of a patrimonial law nature may arise in attempts to connect different kinds of rights, even irrevocably, to owning or holding an NFT. Creditor rights seem relatively easy in this respect because most legal systems allow prospective debtors to obligate themselves as they wish. We also study whether a limited liability company could issue an NFT as a share certificate with legal effects corresponding to those of a physical (paper) share certificate. While an affirmative answer could be justified in some legal systems, Finnish law makes it difficult to tokenize a company's shares other than in the framework of a settlement system within the meaning of the European Union's DLT Pilot Regulation. Even greater difficulties arise in attempts to connect the ownership of a (material) thing and of an NFT so that a person who owns a token also owns the thing. Our third and final research question addresses tokenization of digital art, which gives rise to some special questions. We ask what rights the transferee of an NFT can receive in connection with tokenization of digital art. Here, our main finding is that digital art can be meaningfully tokenized even though digital copies are not regarded as possible objects of ownership.
This chapter considers how DLT could be used in connection with derivatives transactions and the English law and cross-border conflict-of-laws issues that may arise from such use. The chapter addresses more simple use cases for DLT, such as acting as a record keeping function in respect of payments under a transaction or in respect of transfers of collateral, and why conflict-of-laws issues are less likely to arise from such use. The chapter then looks at more complex use cases, in particular the potential use of tokens housed on a DLT system as collateral in respect of derivatives transactions. The chapter considers a number of different types of tokens, from tokens that are backed by a real-world asset to tokens that are native to the DLT system, and addresses the conflicts-of-laws issues that may arise from taking security over such tokens. The chapter also addresses how the law could be developed so as to provide greater legal certainty on these issues.
Due to the modern relevance of blockchain technology, smart contracts present both substantial risks and benefits. Vulnerabilities within them can trigger a cascade of consequences, resulting in significant losses. Many current papers primarily focus on classifying smart contracts for malicious intent, often relying on limited contract characteristics, such as bytecode or opcode. This paper proposes a novel, two-layered framework: 1) classifying and 2) directly repairing malicious contracts. Slither’s vulnerability report is combined with source code and passed through a pre-trained RandomForestClassifier (RFC) and Large Language Models (LLMs), classifying and repairing each suggested vulnerability. Experiments demonstrate the effectiveness of fine-tuned and prompt-engineered LLMs. The smart contract repair models, built from pre-trained GPT-3.5-Turbo and fine-tuned Llama-2-7B models, reduced the overall vulnerability count by 97.5% and 96.7% respectively. A manual inspection of repaired contracts shows that all retain functionality, indicating that the proposed method is appropriate for automatic batch classification and repair of vulnerabilities in smart contracts.
Internal Auditing (IA) as a profession has reshaped over decades in order to adapt to the constantly changing environment surrounding it. Internal auditors are ongoingly confronted with new technologies and need to be aware of complex digital risks, new fraud schemes, but also hot topics like Internet of Things, Artificial Intelligence and Blockchain. For blockchain a lot of the spotlight was historically on the investment and capitalization aspects of cryptocurrencies whereas the technology itself has evolved from a mere means of payment and value storage to more complex business constructs managed by self-enforcing smart contracts and oracles. In this dissertation the established and internationally recognized standards of internal auditing are applied to the context of newly popping up blockchain-based Decentralized Autonomous Organizations (DAOs) that operate on a series of smart contracts. The tokenized nature of ownership of these distributed ledgers as well as some law experts' assessments imply that they may have to be classified as public capital corporations and therefore be subjected to stricter rules and standards. Not only are internal audit functions highly recommended for large organizations but depending on the corporate laws of a country and the industry they are likely to be mandatory. While DAO-enthusiasts imply that the immutable nature of the blockchain, the recognized consensus mechanism, and strong preventive and automated controls will make internal auditing obsolete, this research sheds light on whether there are conceptual obstacles for IA in DAOs regarding compliance with internationally recognized internal auditing standards and therefore question the overall legality of this type of organization. After an initial analysis of professional and scientific publications as a basis, each IA standard is reviewed for obstacles, benefits, and challenges regarding the respective compliance in a DAO context utilizing an exploratory research method. Because it appears that there may be governance and operational collisions with regard to the strict standards of the Institute of Internal Auditors on the one hand and the conceptual unique setup of blockchain-based DAOs on the other, we evaluate the hypothesis by which standard compliance is impossible and therefore the legality of a DAO in itself may be in question. In addition, we analyze whether and how the use of a DAO can benefit and/or complicate the compliance with each internal auditing standard. This foundational research dissertation may offer guidance on what safeguards DAOs need to implement to comply with certain laws and standards but also addresses policy and standard makers with the assignment to update their rules and offer guidance for implementation. The dissertation may also offer guidance for the mandatory external and internal quality assessments (IIA Standards 1311 and 1312) of internal audit functions in DAOs. Overall, it presents additional insights to related professions like accountants, compliance officers, external auditors, anti-fraud professionals, IT auditors and others while offering a glimpse into what the role of an internal auditor of the future might realistically look like.
Non-Fungible Tokens (NFTs) have become a hot topic, especially during the COVID-19 pandemic. With this new wave of digital assets, comes decisions about how to govern their transfer from user to user. Between common law and the Uniform Commercial Code, depending on the type of NFT that is transferred, there is a sliding scale of when common law would govern and when UCC would govern each respective transaction. In this paper, NFTs are classified into seven distinct categories and the laws that govern their transactions are discussed with examples.
Decentralized Autonomous Organisations (DAOs) can be understood as collective organizations that are run through blockchain-based smart contracts, which allow token holders to participate directly in decision-making processes. By harnessing the key features of distributed ledger technology (DLT), they are increasingly posing tricky questions for policy makers, supervisors, and legal scholars. Even though DAOs are often claimed to be beyond the reach of national jurisdictions, it is clear that a broad array of legal issues need to be solved for DAOs to achieve scalability and widespread application, namely the lack of limitation of liability, governance concerns, and the definition of token-holders’ rights. Our paper delves into these concerns and argues that DAOs can benefit from the solutions provided by corporate law over the past decades in coping with management and moral hazard problems involving all complex organizations.
The emergence of so-called "decentralized finance" (DeFi) and a shadow financial system of cryptocurrency exchanges and stablecoin issuers raises the challenge of how to apply technology-neutral regulation so that similar risks are subject to the same rules. This paper makes the case for embedded supervision, i.e., a regulatory framework that provides for compliance in decentralized markets to be automatically monitored by reading the market's ledger. This reduces the need for firms to actively collect, verify and deliver data. The paper explores the conditions under which distributed ledger data may be used to monitor compliance. To this end, a decentralized market is modeled that replaces today's intermediary-based verification of legal data with blockchain-enabled credibility based on economic consensus. The key results set out the conditions under which the market's economic consensus would be strong enough to guarantee that transactions are economically final, so that supervisors can trust the distributed ledger's data. The paper concludes with a discussion of the legislative and operational requirements that would promote low-cost supervision and a level playing field for small and large firms.
The author argues that commentary on the Second Circuit's 1989 Lessinger decision involving section 357(c) has not clearly identified the tax logic issues that are at stake in the case. He agrees that the controlling shareholder's obligation is not section 351 "property" and should not be accorded basis in the shareholder's hands. Instead, the obligation should be treated as a purchase money obligation that affords basis in the shareholder's stock unless it is properly viewed as contingent. In any event, proper structuring of section 351 exchanges of property subject to debt in excess of the property's basis for stock in order to reflect an actual retention of liability on that debt by the shareholder should prevent shareholder gain recognition under section 357(c).
Non-Fungible Tokens (NFTs) built in the blockchain are quietly revolutionizing ideas around digital assets despite their questionable status under current law. Furthermore, the smart contracts that control many NFTs are disrupting the way deals are done. At the same time, disputes regarding NFTs and smart contracts are inevitable, and parties will need means for dealing with these highly technical issues. This chapter tackles this challenge and proposes that parties turn to online dispute resolution (“ODR”) to efficiently and fairly resolve NFT and smart contract disputes. Furthermore, the chapter acknowledges the benefits and challenges of current means for addressing blockchain issues and proposes ideas for how designers could address those challenges and incorporate ODR to provide efficient and fair resolutions.
This article provides an overview of the non-fungible tokens (NFTs) as an investment class. The first part focuses on the NFT infrastructure including the NFT primary and secondary markets, different types of NFT exchanges, NFT aggregators, NFT borrowing and landing, NFT staking, and finally NFT fundraising. The second part investigates the leading blue-chip NFT collections and their performance in the short- and long-term, both during the bull and bear markets. Analyzing close to two million NFT transactions, we find that profile picture (PFP) NFTs dominate the NFT market and yield exceptionally high returns both on the raw and market-adjusted basis. For example, NFTs from the collection Bored Ape Yacht Club (BAYC) deliver a buy-and-hold return of close to 2,000%. Furthermore, NFTs from other categories (art, gaming, metaverse) do not perform as well as PFPs, however, they outperform the cryptocurrency market by roughly 100%.
Goldfinger-Attacken zielen darauf ab, den Wert einer Ziel-Kryptowährung zum Absturz zu bringen, indem die Mehrheit der Stimmrechte im System genutzt wird das zu Grunde liegende Konsensprotokoll untergraben. In einem Proof-of-Stake-Kontext, in dem die Stimmkraft auf der Menge der gehaltenen Kryptowährung basiert, kann dies in Form eines Buy-out-Angriffs erreicht werden, bei dem eine Mehrheit der Zielwährung gekauft wird. In diesem Zusammenhang wurde der Race to the Door (RTTD)-Effekt beschrieben, der dazu führt, dass immer mehr Inhaber aus der Zielwährung aussteigen, bevor diese wertlos wird. Dieser Effekt senkt den Preis für weitere Stimmenanteile, wodurch der Angriff billiger wird, je weiter er fortschreitet. Diese Arbeit soll zeigen, dass ein Angriff im Stil von Race to the Door auch in einem Proof-of-Work (PoW)-Kontext technisch möglich ist, ohne eine Mehrheit der Stimmrechte (d. h. der Hash-Rate) zu erlangen. Zu diesem Zweck werden die technische Machbarkeit und die Kosten eines solchen Angriffs am Beispiel von Ethereum untersucht. Zunächst wird ein Systemmodell für RTTD-Angriffe auf PoW-basierte Kryptowährungen vorgestellt, um einen Überblick zu geben. Der Angriff wird dabei in die Phasen Vorbereitung, Rennen und Angriff unterteilt. Um die technische Machbarkeit zu demonstrieren, werden diese Phasen in Form von Smart Contracts auf Ethereum umgesetzt. Für die Angriffsphase werden drei Varianten vorgestellt, die jeweils einen unterschiedlichen Denial-of-Service-Angriff realisieren. Dazu werden In-Band-Zahlungen genutzt, um entweder das Auslösen zusätzlicher Transaktionen oder die Erzeugung leerer Blöcke durch Miner zu incentivieren. Um die Kosten der vorgeschlagenen Angriffsvarianten abzuschätzen, wird eine empirische Analyse durchgeführt, bei der Transaktionsdaten von historischen Überlastungsphasen der Ethereum-Blockchain untersucht werden. Anhand der Ergebnisse werden die Kosten der Angriffsvarianten geschätzt und verglichen. Die stündlichen Kosten für das Blockieren von Transaktionen durch das auslösen weiterer Transaktionen betragen etwa 870 Ether. Die Incentivierung von Minern, die ein Drittel der Blöcke leer lassen, kostet etwa 790 Ether pro Stunde. Die Arbeit zeigt, dass Race to the Door-Attacken auch im Kontext von PoW-basierten Kryptowährungen technisch durchführbar sind. Die Kosten des Angriffs hängen dabei von seiner Intensität und Dauer ab. Die Intensität kann in der Angriffsphase konfiguriert werden und die Dauer hängt von der für den Angriff verfügbaren Geldmenge ab.
There is an increasing commercial imperative to automate various <br/>components of the construction contract administration process, including <br/>technologies such as sensors, common data environments, machine learning <br/>frameworks and smart contracts. These technologies of automation augment <br/>the role of the superintendent that administers construction contracts and <br/>impact how the superintendent exercises discretion in relation to legal <br/>obligations captured in the construction contract. This article analyses the <br/>discretionary aspects of a superintendent’s legal obligations as articulated in <br/>Australian standard form construction contracts. It argues that the exercise of <br/>superintendent discretion in a fair and reasonable manner signals <br/>trustworthiness to the construction industry and positions the superintendent <br/>as a trusted intermediary on the construction contract. Consequently, the <br/>augmentation of the trusted role of a superintendent requires a deeper <br/>understanding of how automation of contract administration processes can <br/>support the signalling of trustworthiness. To do so, this article adopts a <br/>conceptual framework of trustworthiness to examine how the exercise of <br/>superintendent discretion signals trustworthiness in three ways: ability, integrity <br/>and benevolence. The article concludes that care must be taken when <br/>deploying technologies of automation in the contract administration process in <br/>order to ensure that superintendent discretion is exercised fairly, reasonably, <br/>and in good faith
Explores the implications of transactional scripts used in situations where there is less than total trust between the parties. In particular, this Article asks the question of how parties to these next generation transactional scripts can seek redress and remedies in the event that the transactional script does not perform according to the parties' intent. Until parties feel safe that any errors can be corrected, large-scale implementation of transactional scripts will be hobbled. Part II of this Article articulates why the term "transactional scripts" is preferable to "smart contracts" and describes the utility and potential of transactional scripts. Part III identifies several factors that hinder greater expansion of the use of transactional scripts. It goes on to identify uncertainty of enforcement as the most important barrier to transactional script innovation, finding that parties will be reluctant to entrust bigger and more complex transactions to transactional scripts until the parties are comfortable that an external mechanism is capable of correcting errors in the execution of the transaction. This lack of reliable enforcement mechanisms is a problem exacerbated by the characteristic of distributed ledger technology, which is to move only forward, preventing revisions or reversals of preexisting entries. Part IV explores and critiques possible mechanisms that may be able to provide error correction, including statutory law, private law, online dispute resolution, public/private regulatory partnership, and common law. Part V concludes the Article, noting that the expansion of transactional scripts' utility will be tethered to the security provided by available error-correction mechanisms. Only as contracting parties become assured that the integrity of their transactional intent will be effectuated will transactional scripts be adopted for use.
Abstract This chapter explores the English law as an example of a particular model for the analysis of intermediated securities. It analyzes the rights of investors through the lens of trust law rather than through bailment and highlights the advantages and disadvantages of the no-look-through model. It also reviews cases where individuals hold a relatively small number of securities through a financial service provider, including the Duomatic principle that gives license to the court to override the formal requirements for shareholder decisions contained in the Companies Act. The chapter demonstrates why the intermediated holding structure that has evolved across the world does not sit comfortably with English law. It cites the recent scoping study conducted by the UK Law Commission combined with the UK Government’s ambition to attract a global pool of investors, which suggests that the UK Government is motivated to address the problem with the English law.