Decentralized Finance (DeFi), a blockchain-based form of alternative financial markets, has been the focus of public attention in recent months. Even though DeFi has a young history, its smart contract ecosystem already offers multiple opportunities for the design and transfer of crypto assets, establishing market structures comparable to traditional financial markets. The landscape of DeFi projects also increasingly includes insurance protocols offering complex risk transfer mechanisms for hedging DeFi risks, above all smart contract risks. In principle, the projects offer the same value proposition as traditional insurance: risk minimization and transfer, and thus an increase in income predictability through the payment of a premium. At the same time, most of those risk transfer protocols are highly dependent on subjective expectations and decentralized governance structures. This article depicts a first taxonomical understanding of DeFi insurance, demarcates DeFi cover products from well-known insurance concepts, and provides an initial assessment of smart contract risk insurability and commercial opportunities for traditional insurers.
Anthropologists like to tell stories about how they were wrong. These stories are part of our collective identity. Consider Briggs's (1970) classic ethnography, Never in Anger. Briggs tells a story about doing fieldwork in Nunavut (then the Canadian Northwest Territories) in the early 1960s. She showed anger on behalf of the Inuit group she was living with when they were wronged by a white outsider. To her surprise, her Inuit interlocutors reacted by ostracizing her for months. She describes feeling devastated, lonely, and depressed, but in slowly working her way back to personhood with her Inuit participants, she learned in a powerfully embodied fashion a core principle of their culture: that adults never show anger or make demands, and that to lose one's temper is to demonstrate a dangerous lack of control, even insanity. She documents how this emotional control is inculcated in children from a very young age. Thus her awful moment of social failure is transformed into a profound reflection on affect and socialization in Nunavut culture. The resulting ethnography became one of that era's most famous. Even when our failures and mistakes are less obvious than Briggs's and don't threaten to derail our research projects, many ethnographic writings reflect on moments when the author realized they had brought a bad assumption into the field with them and, as a result, learned something from their research participants—something that shifted their methodological or theoretical approach, or changed what they were studying. These stories are particularly prevalent among graduate students returning from their first fieldwork experiences. The stories go something like this: I went to the field planning to study x, and when I was in the field, I listened to my interlocutors and realized that what I really needed to study was y. For example, in her book Food, Sex and Pollution, Meigs (1984) writes about going to the field intending to study divorce, but when she gets there, everyone seems bored and uninterested when she asks about the topic. Instead, they want to talk to her about sex, gender, and the pollution rules that govern what they can and can't eat. It's such a collective concern that she describes their interest in the topic as a “religion.” Responding to this, she changes her research topic and commits to addressing her research participants’ interests, letting them chart the direction of her work. Briggs tells a similar story: she goes to the Inuit planning to study shamanism, but when she arrives, she finds that the small group she is living with have converted to Christianity and don't want to discuss their “pagan” past. That, combined with her attempts to process the social ostracism caused by her angry outburst, leads her to a whole new project on emotions and socialization. Without having systematically reviewed all the different ways that anthropologists have described their “I was wrong” moments, the AE editors suspect that many, if not most, ethnographies include stories like this, even if most are not as dramatic as Meigs's or Briggs's. These stories are not just about ourselves as individual fieldworkers but about anthropology as a discipline. We tell them to remind ourselves and to teach our students about the discipline's orientation toward a radically inductive and collaborative approach to building knowledge. By telling stories about being wrong, we might seem to be sacrificing our own dignity and authority, but in fact we are shoring up our authority as authentic ethnographers. These stories illustrate our willingness to be humbled by what we don't know, demonstrating our commitment to what Lederman (2007, p. 310) calls anthropology's “systematic openness to contingency.” In short, anthropology is a discipline that has staked its methodological approach on the possibility of mistake and failure. In taking an iterative approach to co-constructing knowledge with our research participants and collaborators, we insist that when we realize we are wrong, we must acknowledge it to move forward. As we were reflecting on this as editors, we thought of our own “I was wrong” stories. For Lisa, it was less a moment and more of a dawning realization. She had been doing research in Egypt on emerging reproductive health technologies, including sildenafil (the generic name for the drug more commonly known as Viagra). As she visited acquaintances and friends in Cairo and Alexandria, she asked them, “Who uses Viagra, and why?” The first time someone mentioned using sildenafil and tramadol (a painkiller) in the same sentence, as if they were synonyms, she dismissed it as ignorance. The man she was interviewing was an illiterate fisherman. He probably didn't use either drug, she assumed, and didn't have the knowledge to realize that they were radically different, having completely different mechanisms of action. Sildenafil produces erections; tramadol, as an opioid narcotic, would be intrinsically erection-wilting, she assumed—and, indeed, recent Egyptian research has demonstrated this (Hashim et al., 2020). The second time someone described using sildenafil and tramadol for the same purpose, she again ignored it. It was not until the third time that an interviewee described the drugs as equivalent that she started to catch on that something significant was afoot. She realized that she had neglected a fundamental point of critical drug studies since at least the 1970s, namely, that a drug's effect is produced not by the drug alone but by the intersection of three elements: the drug and its neuropharmacology; the mindset of the person taking the drug and their expectations about what it will do; and the social context in which they use the drug (Zinberg, 1984). This led Lisa to ask a question that would prove important to her research: Why did people see these drugs as part of a semantic continuum, and what did that say about how Egyptians understand masculinity and its relationship to pharmaceuticals (Wynn, 2022)? In retrospect, I realized that scars were slowly being formed. More precisely, they were being encouraged to form through a communitywide cultivation of silence. Rather than silence being considered an inhibitor of healing, as it is in much of Western medical, psychological, and cultural discourse, this was a case of a community encouraging silence as a means of promoting healing. After several moments when her research participants gently corrected her social blunders, she realized something not just about them and their philosophies of trauma and healing, but about her own deeply held assumption about trauma: that to heal, you need to talk. In contrast, for her research participants, “to break the silence [about past trauma] would be akin to breaking open the wound” (Trnka, 2008, p. 180). Jesse had a key “I was wrong” realization during his PhD research in Aceh, Indonesia (Grayman et al., 2009), where he was studying postconflict humanitarian recovery programs. Jesse was working with an Indonesian medical team that was tasked with providing psychosocial and psychiatric support to civilian survivors of the separatist war (1976–2005). He gave the team a short training on ethnographic methods, with a focus on managing trauma and the ethics of discussing painful conflict memories. Later, during a field exercise, an overeager nurse interviewed a village head about his conflict experience, pressing on despite the man's visible discomfort. As a crowd gathered, the village head recounted horrific torture, evoking tears from an elderly observer. When the conversation ended, the leader quietly remarked, “Sometimes I think there is no need to remember the past like this.” Jesse wondered whether he had misconceived his effort to upskill the medical team with ethnographic methods. Afterward, Jesse reflected on this as a moment of failure, noting that confessional narratives, central to many mental health models, are not always therapeutic. While some participants thanked the team for listening, it was nearly impossible to discern the few who might not benefit from talk therapy. Though Jesse turned the experience into a teachable moment, he regrets that the researcher's moment of learning unfolded in a real community, with real people and real leaders, just barely coming to terms with peacetime after living through decades of political violence. Even today, remembering the event makes Jesse anxious and embarrassed. This draws our attention to another key aspect of the way anthropologists process being wrong. We often experience our mistakes as embodied, visceral moments of regret, embarrassment, frustration, or humiliation. Thus, perhaps recounting our mistakes is not just about asserting our ethnographic achievements and authority, but about helping ourselves process our dark, painful feelings and difficult memories of fieldwork. Wanting to reflect more deeply on these issues, we invited anthropologists to submit to a special forum in which they discuss their moments of being wrong and what these can tell us about our discipline. We asked them to recount events when they realized a flaw in their methodological approach, an interpretive error, an ethical mistake, an event that triggered a theoretical paradigm shift, or a realization that their approach to teaching or doing anthropology needed an overhaul. We asked them to address these questions: When did you realize you were wrong? How did you come to that realization? What did you learn? How did you change the way you do or teach or write anthropology? As we read the submissions to this special forum, we were struck by three recurring themes. The first was embodiment and affect. As described in Jesse's and Susanna's stories of being wrong, and in Briggs's powerful ethnography, it can feel like swimming in dark emotions to realize that you are wrong and to process what it means for how we understand our past and our future in a society. Coming to terms with our mistakes is both an intellectual and an affective process, one that is experienced and felt deep in the body, both as we live the moments of mistake and process them later. A second theme was scale. Being wrong can be a tiny realization leading to a subtle reorientation in focus or approach, a microrecalibration of knowledge or of everyday fieldwork practice, or a grand, dramatic moment that causes a seismic shift in perspective. Of course, it's rarely one or the other. As Kuhn (1962) notes of paradigm shifts, they might seem like revolutions, dramatically overthrowing old modes of thinking, but in reality they take place gradually: anomalies slowly accumulate until the dominant paradigm topples under their weight. The third theme is temporality: “I was wrong” can be a light bulb moment or a slow, unfolding realization, a moment in the field or a decades-later discovery. Some “mistakes” do not reveal themselves until several years or even decades after one's fieldwork, reshaping one's sense of not only their research or the people they spent time with, but of themselves. In My Life as a Spy, Verdery (2018) reflects on how state security services labeled her a CIA agent during her three years conducting ethnography in Romania in the 1970s and 1980s. Their mistaken interpretation of her as a foreign agent began, she suggests, through her own error in judgment—motorbiking alone through the Romanian countryside in search of a field site, she inadvertently strayed into a restricted military zone, missing the sign warning “Entry prohibited to foreigners” (“I had made a stupid mistake. It would not be the last time,” Verdery [2018, p. 3] dryly remarks). the way I carried myself was suspect. At least, so it seemed to my friend Emilia, who told me that when she met me in 1990 she immediately thought I might be a spy: “You were dressed very modestly, you didn't hold yourself above us. Your style was to reduce the difference between yourself and Romanians, under-communicating it.” In short, my manner of dress was a form of hiding. Eventually she came to see it as my way of trying to form good relations with villagers, but her first thought was, “Maybe she's a spy. Instead of seeming like someone from a totally different world, you seemed to be one of us”—that is, she thought I had been specifically trained to fit in. (p. 17) recognize me as a spy because I do some of the things they do—I use code names and write of “informants,” for instance, and both of us collect “socio-political information” of all kinds rather than just focusing on a specific issue. … When I read in the file that I “exploit people for informative purposes,” can I deny that anthropologists often do just that, as Securitate officers do? In 1962 the US Department of Commerce, without authorization or permission from the author, translated from French into English the anthropologist Georges Condominas’ ethnographic account of Montagnard village life in the central highlands of Vietnam. The Green Berets used the document for assassination campaigns targeting village leaders. For years, neither publisher nor author knew this work had been reprinted in English for military ends. How can one accept, without trembling with rage, that this work, in which I wanted to describe in their human plenitude these men who have so much to teach us about life, should be offered to the technicians of death—of their death! … You will understand my indignation when I tell you that I learned about the “pirating” [of my book] only a few years after having the proof that Srae, whose marriage I described in Nous Avons Mangé la Forêt, had been tortured by a sergeant of the Special Forces in the camp of Phii Ko. Condominas's outrage changed how anthropologists think about their writing, their politics, and their ethics of representation. As Price (2007) notes, ethics committees often focus on any immediate risks to research participants, including whether they could be harmed by certain questions (as in Jesse's recounting of interviews about a violent past). Examples like Condominas's, however, show that anthropologists also need to think about the different scales and temporalities of ethnographic work and its possible harms. These themes—embodiment and affect, scale and temporality—come up in fascinating ways in this forum's commentaries. Rejecting the simple binary of right or wrong, Veena Das dismantles the AE editors’ language of “moments” of realization. Instead, she sees anthropological knowledge as a long, dialectical process: the anthropologist slowly finding their way between, on the one hand, the dominant theories and theorists of their time, and on the other, their interlocutors, the “figures of thought” influencing them in the field. She describes a sense of incompleteness or poor fit with existing theories, one that slowly accumulates and eventually compels the anthropologist to see something in a new way, or notice what they haven't been seeing. “By taking a long-term perspective on the vulnerability of knowledge, which reveals itself over time,” Das aims to “draw attention, instead, to the connections between the knowledge of the alien and our own everyday modes of knowing. We miss these connections if we stay with the stark oppositions of truth and falsity, mistakes and correction.” Like Das, Carole McGranahan sees anthropological theory as formed not only in the relationship between fieldworkers and theorists, but also by the theorists in the field. Reflecting on her own training, she writes, “The ethnography often, though not always, came to me pretheorized. People shared stories with me alongside observations, musings, and explanations. Analysis was by no means only the scholar's domain. It belonged to narrator and audience alike.” Gil Hizi thinks through a series of unexpected moments during his PhD research and describes his mistakes as the “naivete of early graduate studies.” In studying practices of among young Hizi learned that after the is no with a but to the that come from interlocutors, in are studying While he at first that they would take no interest in the of an in his Hizi finds the Hizi from these unexpected moments with mistaken come and he through them to his with his realization of his mistakes from to decades He describes feeling early in his during his first with a he he was wrong until interviews when of the difference between the and the [of became account is through with embodied affect. when one to talk with in the of a field at a to being and even more and when he how to his field notes and back to the US without He up with a that … seems of you are wrong, after the when in the field you knew something was but didn't how to with it. writes about finding on an at a in one of which is about the impossible of a The of this with about medical issues, such as the of back into old anthropological about the to and is certain that the only to that the is from the on an from This to the of her and, like Das, her by asserting the of and the of knowledge. writes a account that a different to the of the anthropologist as about being as an and from and working to open up to the makes a that leads her to being Afterward, she her in terms of a intersection of gender, and also with In an dark and that many of us will she that she is not to for being she can't over what she did wrong. She to how it so that she can make in the one be wrong without being at and In her we the of stories about being wrong that don't stories that people don't feel powerful to or that don't to our authority, that are or or the of trauma among who work in of political and violence. In research with in US knew this work might trauma and health was in not other, more and ways to both for individual such as and for the discipline as a which could do more to PhD students and a new of who are ethnography, for as work. forum are a of names and finding their in the field. Their on both recent mistakes and made over not only tell individual but also describe both subtle and dramatic of what ethnographic fieldwork and ethical research the of writing, and and the of old theoretical even as we to think in new reflect of things we have wrong as as the realization of in as Das it. are stories and perhaps the most that all these is their on and to our research and participants’ for to participants’ to who offered after the own The the anthropological in terms of and the willingness to be Thus, an “I was wrong” realization is the of a commitment to It anthropology as a discipline that is and to
최근 탈중앙화자율조직(“DAO”: Decentralized Autonomous Organization)이 등장하면서 블록체인 기술이 영리조직의 결성수단으로 활용될 수 있는지 관심을 끌게 되었다. 이 글은 DAO가 전통적인 회사법제에 던지는 몇 가지 의문에 나름의 생각을 덧붙인 것이다. DAO 사례가 축적되면 그 탄력성에 비추어 더 많은 논점이 등장할 것이기에, 이 논의의 성격은 잠정적이고 시론적이다.DAO에 대한 상세한 규율 및 입법은 ‘분산’되고 ‘자율’적인 조직을 상정하는 DAO의 개념 자체와 충돌한다. 다만 중심기관이 없다는 것이 구조가 없다는 것은 아니기에, 어느 정도의 입법적 뒷받침은 불가피해보인다.첫째로 DAO가 단순히 협동조합 수준에 그치지 않고 영리조직으로 성장하려면 적어도 구성원들의 유한책임(이른바 소유자격리)은 보장되어야 할 것이다. DAO를 일종의 유한책임회사(LLC)로 규정함으로써, 법인격을 부여함과 동시에 재산분리(asset partitioning)을 인정하는 와이오밍, 버몬트주 등 입법례가 참조될 수 있다. 다만 우리법제가 DAO를 수용하려면 기본 유한책임조직과의 정합성을 고려할 필요는 있을 것이다.둘째로 DAO의 이상은 모든 구성원의 의사가 전부 반영되는 민주적인 운영이다. 이에 따라 DAO의 원형에는 별도 집행기관도 설치되지 않는다. 다만 이렇듯 직접 민주주의적 운영은 주로 펀드나 소규모 기업에 더 적절할 수 있다. 다른 업종에서도 DAO의 투명성, 탈중앙성 등 특장점을 일부나마 반영하려는 수요가 있을 수 있다. DAO 관련 입법이 이루어진다면 구성원들간 협의에 따라 집행기관을 둘 수 있도록 열어두는 것도 대안이 될 것이다.셋째로 DAO 구성원 사이의 법률관계는 기본적으로 구성원들이 자치적으로 규율하도록 하면 족하다. 투표권의 배분 방식, 구성원들 상호간 신인의무 등도 내부적으로 정하도록 하고 다만 법적으로 디폴트룰을 제시할 수는 있을 것이다. 특히 DAO 운영에서 구성원의 총의가 중요하므로 투표권 배분 및 행사 방식에 대한 다양한 실험이 가능하고 또 필요하다.넷째로 DAO 관련 블록체인 프로토콜 등 오류로 인한 개발자의 책임의 문제이다. 아직 이를 명시적으로 규율하는 입법도 없고 학계 논의도 숙성되었다고 보기 어렵다. 특히 공개형 블록체인 프로토콜은 개발자 그룹이 고정되어 있지 않고, 자칫 그들의 개발욕구를 저하시킬 수도 있으므로 엄격한 책임을 부과할 수는 없다고 판단된다. 당장의 입법적 조치보다는 일반적인 불법행위 법리 등에 의지하면서 개발자 그룹의 성격, 관리범위 및 그에 따른 이득 등 사례를 유형화할 필요가 있다고 하겠다.
S ubrzanim razvojem tehnologije i informatike u 21. stoljeću dolaze velike promjene u načinu ljudskog življenja i djelovanja. Svakodnevni život postaje sve brži i dinamičniji zbog razvoja računala i interneta, a ljudi objeručke prihvaćaju nove tehnologije i pokušavaju ih maksimalno implementirati u svakodnevni život. Decentralizirane autonomne organizacije (dalje DAO) su računalni programi bazirani na blockchainu koji omogućuju sudionicima da kroz predlaganje i glasanje o odlukama koje dođu na dnevni red odlučuju o načinu korištenja resursa organizacije (upravljanje community walletom) te samim time upravljaju s budućnosti organizacije. Koliko koji član ima prava glasa u DAO-u ovisi o količini upravljačkih (governance) tokena koje posjeduje. Ovaj način određivanja količine prava glasa donekle podsjeća na ustroj u dioničkom društvu, no zbog nedostatne pravne regulacije DAO-a i nedostatka mogučnosti inkorporacije kao društva kapitala zakonodavac u Hrvatskoj i svijetu ima tendenciju DAOe smatrati ortaštvom u slučaju spora. Podvođenje DAO-a pod definiciju ortaštva može biti naročito opasno za članove jer ne uživaju zaštitu zida pravne osobnosti . U svom radu obradio sam pravni status DAO-a, osnivanje DAO-a i sudjelovanje članova u DAO-ima, a ponajprije su objašnjeni termini kao što su decentralized finance (DeFi), blockchain i pametni ugovori.
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).
Abstract The intrinsic complex nature of Contracts in the Energy sector leads to frequent international disputes. The complexity is generated by (i) the involvement of multiple stakeholders with potentially conflicting interests (Multinational Companies, State-Owned Companies, Host States and their citizens); (ii) transnational jurisdictions divergence (local laws, investor’s country laws, international practices and regulations); and (iii) changes in the laws and regulations over time (long-term nature of Energy contracts). Therefore, not surprisingly, traditional litigation in the Energy sector is often replaced with Alternative Dispute Resolution (ADR) through the recurrent application of Arbitration clauses. This article aims to improve dispute management in the Energy sector by encouraging best ADR practices. Modelling and Conceptual research approaches are adopted to encourage the introduction of the smart contract. The analyses triggered the drafting of a model for contractual automation. Recurring top clauses are mapped and associated with Equity solutions. Moreover, a comprehensive, efficient and feasible ‘Electronic ADR’ framework is shaped to prevent (or automatically settle) disputes in the Energy sector.
The paper discusses whether and to what extent the key constituencies of a ‘typical’ DAO can be qualified as a partnership under English law. It explores the defining features of a ‘typical’ DAO and its key constituencies; gives a brief overview of the various types of business organization available under English law; addresses the question of private international partnership law; and then analyses whether the key stakeholder constituencies in a DAO meet the conditions set out in the Partnership Act 1890 for qualifying as a partnership.
Abstract This chapter covers the innovative concept of decentralized autonomous organization (DAO). DAO refers to a system or arrangement for distributed decision-making which typically relies on or is underpinned by a computer program or a compilation of computer programs. The DAO essentially consists of computer codes that exist virtually on the relevant blockchain or other distributed ledger which codes are typically open sourced. The chapter then provides an overview of the potential legal and regulatory implications for the DAO and other DAOs within the context of UK and EU investment fund regulation. It highlights the considerable uncertainty regarding how the DAO should be treated from a legal and regulatory perspective.
Dirk Andreas Zetzsche, Linn Anker-Sørensen, Maria Lucia Passador, Andreas Wehrli
Financial law and regulation have, to date, assumed that regulated activities and functions are concentrated in a single legal entity responsible and accountable for operations and compliance. Even with regard to financial market infrastructure where the regulatory perspective acknowledges the need for interoperability of many entities as a system, each entity is subject to its own rules and regulations, and can thus meet its own compliance requirements independent of other system participants. The entity-focused regulatory paradigm is under pressure in the world of DLT-based payment arrangements where some ledgers, and thus the performance of the services as such, are distributed. DLT arrangements could provide an alternative to the traditional reliance on a mutually trusted central entity to transfer funds and enable the creation of new foundational infrastructures by distributing technical functions or linking existing systems. As such, we identify and outline concepts for use cases where DLT is potentially improving the efficiency of cross-border payments, namely a Best Execution DLT, a DLT application for a Network of Central Banks, a DLT as an AML/KYC utility, as well as DLT arrangements for an Identity Platform, a Small Payments Platform and, finally, an Interoperability Platform connecting multiple closed-loop and proprietary banking systems. Despite the wide-ranging interest in DLT-based payment systems, research so far has focused on technical concepts and lacked legal details. This article seeks to fill this gap by providing an initial analysis of the legal challenges related to DLT-based payment systems. From a legal perspective, the distribution of functions in DLTs comes with new risks created from the joint performance of services and functions as main characteristic of a distributed ledger, and the need for additional agreements, ongoing coordination across, and governance arrangements among the nodes. Further, in a cross-border context, multiple regulators and courts of various countries (asking for compliance with their own set of rules and regular reporting) will be involved. All of these must decide whether for compliance with any single rule they look at the DLT as a whole (herein called ‘the ledger perspective’) or each individual node (that is each institution participating in the DLT, herein called ‘the node perspective’). Moreover, financial and private law must provide for risk allocation, liability, responsibility and accountability for all legal obligations related to each function and activity. This article examines the extent to which the ledger perspective or the node perspective should prevail against the backdrop of a range of DLT use cases, resulting in policy recommendations for regulators. In this article, we propose the adoption of what we call an enabling approach for payment systems: ledger operators must specify in a Plan of Operations subject to regulatory approval to which rights and obligations the ledger perspective applies; in the absence of such a stipulation, rules apply based on the node perspective. However, for systemic risk controls, AML/CFT, data protection and governance, as well as DLT governance, we propose a reversed default rule in which the ledger perspective prevails in the absence of rules stipulating that the node perspective applies. Finally, in private law matters, we propose protecting consumers and SME clients through a standardised payment services contract structure, without mandating details.
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.
The decentralized structure and automated operations of decentralized autonomous organizations (DAOs) raise complex questions about the determination of applicable law, corporate status, and external actions that cannot be adequately answered using classical theories. This article draws up the different current legal possibilities for structuring DAOs.
Blockchain applications begin to transform both companies and company law. At Member State level, for example, the German government has recently commissioned a study to examine the suitability and need for reform of company law in view of blockchain applications. The European Commission also takes a close look at the intersection of blockchain and company law, and is currently considering “additional company law measures to facilitate cross-border expansion and scale-up by SMEs”. At the same time, the High-Level Forum on Capital Markets Union is discussing company law measures to make internal company processes more efficient with the help of distributed ledger technologies. Digitalization is likely to trigger further reform steps under company law, and blockchain and distributed ledger technologies represent fundamental challenges for this field of law. The present paper therefore tries to shed some light on the intersection of blockchain and corporate law. A brief explanation of the technology lays the ground for measuring the potential for its use in company law practice.
The digital economy has had a profound impact on society, including the global business landscape and market dynamics. New phenomena such as online platforms, social media, distributed ledger technology (such as blockchain), big data and online service providers affect business models and our understanding of what a “business” is. The links between digitalisation and Responsible Business conduct (RBC) are manifold. New digital tools can help firms accelerate their contribution to sustainable development, and enable businesses to strengthen their efforts to meet standards of RBC. At the same time, digitalisation can also cause business to violate human rights, or contribute to social and environmental harms in new ways. This paper discusses the links between RBC and digitalisation. It aslo summarises the key issues and findings emerging from the stocktaking and analysis of current initiatives.
Most of the applications and uses of digital assets are improved and expanded with well-functioning and well-governed DAOs. The article evaluates the technical and internal governance solutions promulgated by DAO projects. Particular emphasis is placed on the duality of feedback effects between internal DAO governance and external DAO legal designs.
The article focuses on whether it is possible to use new technologies such as distributed ledger technology (DLT) in shareholder ledger maintenance systems. The article uses Estonia as an example to describe the shortcomings of shareholder ledger maintenance regulation and possible suggestions for reform and applies the principle of technology-neutrality to the subject matter to assess whether the regulation allows the adoption of new technologies, such as DLT, in ledger maintenance. The aim of the principle of technology-neutrality is to secure that the regulator does not create regulation that prefers any particular technology and discriminates against other technologies. Any regulation that is built around a pre-existing technology could suffer from preferring the use of that particular technology and consequently hinder innovation. In the article it is examined whether the ledger maintenance models used in Estonia are benefitting or suffering from the non-existence of technology-neutral technical standards for ledger maintenance and whether the differentiation of treatment of shareholder ledger administrators is justified on the basis of the principle of technology-neutrality.
As noted above (see for example paras. 38 to 40), business registration can be implemented through many different organizational tools that vary according to jurisdiction. States embarking on a reform process to simplify registration will have to identify the most appropriate and efficient solutions to deliver the service, given the prevailing domestic conditions. Regardless of the approach chosen by the State, aspects such as the general legal and institutional framework affecting business registration, the legal foundation and accountability of the entities mandated to operate the system and the budget needed by such entities should be carefully taken into account. Reform efforts rely to different extents on a core set of tools, including: the use of technology; the establishment of a one-stop shop; and interconnectivity between the different authorities involved in the registration process (with the possible adoption of a unique identifer). States should also ensure that their reform efforts do not inadvertently exclude the adoption of emerging technologies that might further improve the operation of the business registry (e.g. the use of distributed ledger technology).