Source: Twitter

Meanwhile, Nikolay Storonsky, CEO of Revolut, has been frustrated by the FCA “for its tardiness in dishing out a UK banking licence for the firm”. Storonsky has complained that UK regulators were slower to grant regulatory approval compared to other jurisdictions: “I definitely see the process is slower compared to other regulators,” he stated, adding, “I’ll give you an example - so we applied for 48 licences across the globe and we received 44, and three of the licences that we haven’t received are actually in the UK.” Storonsky is not alone, with 80% of firms having applied to the FCA to be on the crypto register now having withdrawn their applications. It seems to many that the Bank of England and FCA have been dragging their feet. The FCA, whilst not regulating crypto assets, keeps reminding the public of the risks and volatility of this assets class (and correctly so). The FCA defines crypto assets to be: “Cryptoassets are cryptographically secured digital representations of value or contractual rights that use some type of distributed ledger technology (DLT) and can be transferred, stored or traded electronically”. This could be interpreted as denoting that firms dealing or issuing NFTs would potentially need to register with the FCA, since NFTs would appear to meet the FCA definition. Meanwhile, the Bank of England is calling for more regulation correctly, arguing that “technology cannot remove all financial risk”. Yet behind the scenes there could, indeed, be more going on than some realise - the stakes are high and furthermore, as the UK economy faces the spectre of stagflation and rising interest rates, the embracing of blockchain technology and the digital assets that they can create could hold some powerful benefits for the country. Estimates suggest that the value of the UK’s goods and services could expand by as much as £41.5bn by 2025 and create a further 678,000 jobs. There are certainly plenty of jobs for those looking to work in the digital asset sector already - the UK is ranked second only to the US with almost 1,000 jobs for people to work on crypto projects being advertised. 

Back in April 2021, when announcing that it was going to allow omnibus accounts, the Bank of England’s explanation of these new accounts was that: “an operator of a payment system can hold funds in the omnibus account to fund their participants’ balances with central bank money. This will allow them to offer innovative payment services while having the security of central bank money settlement.” In addition to this, HMRC issued a consultation paper on 5th July 2022 “ to consider if costs could be reduced for taxpayers who participate in DeFi, and could tax treatment might be more aligned with the transactions' fundamental economics thus making tax collection more efficient?” The UK government does seem to be listening to those engaged in digital assets and supporting Sunak’s wishes as it has issued its Financial Services Bill as recently as on 20th July 2022. Included in this are stablecoins, together with how the Financial Market Infrastructure (FMI) Sandbox could be for the tokenisation of real assets and thus issuance of digital securities such as digital equities, debt instruments, commodities and even digital mutual funds. Interestingly, the parliamentary bill would appear to be following the UK’s traditional regulatory approach so, rather than being prescriptive and driven by legislation (which is more common in the US and Europe), it seems to be encouraging parties to be flexible and empower regulators. The bill takes a broad-brush approach including stablecoin service providers such as the issuer, custodians, platforms, exchanges, wallet providers and entities that offer services or support the transfer of money. At the same time, the Treasury has also issued a payments consultation to extend the regulatory scope for payment systems and to include more parties in the payments chain.

This more proactive stance would appear to have been supported by the action itself. The current Chancellor of the Exchequer, Nadhim Zahawi, has announced that the UK plans to be one of the first G20 countries to issue debt instruments using blockchain technology. However, this target has already been met since the European Investment Bank (in conjunction with Banque De France) had issued €100million of bonds earlier this year and, in 2019, the World Bank issued $50million of kangaroo bonds with the Australians. Irrespective of this though is that the UK is a key jurisdiction for financial services and fintech innovation and investment, with over $9billion being invested in the first half of 2022 - second only to the US and more than the entire EU combined. Furthermore, there certainly seems to be no lack of support from the UK Treasury for digital assets. At a recent speech in the City of London, John Glen, treasury minister, said: “If there is one message I want you to leave here today with, it is that the UK is open for business - open for crypto businesses.” The challenge will be how such warm words and positive sentiment toward blockchain and the digital assets this technology can create, will truly foster regulatory clarity and thus encourage further engagement from regulated institutions?

Technology where legal firms are investing

Source: PwC

As PwC has reported: “Tech needs now cost the partners almost as much as half of what a firm’s premises cost. This just shows how central tech is now to the functioning of law firms.” Law firms rank Improve use of technology as their top priority for business support. Furthermore, blockchain software technology company, ConsenSys, believes: “Lawyers can leverage blockchain technology to streamline and simplify their transactional work, digitally sign and immutably store legal agreements”. Back in 2017, the 26th PwC annual Law Firms’ Survey revealed that 70% of surveyed law firms would utilise smart contracts for transactional legal services, 41% would use blockchain for transactional legal services, 21% for legal support and 31% for high-value legal services.

Benefits of blockchain technology in the legal sector

• accessibility - by leveraging blockchain technology, lawyers can streamline and simplify their transactional work, and digitally sign and permanently store legal agreements. With the use of smart contracts, scripted texts and automated contract management, the time spent preparing, personalising and maintaining standard law documents is reduced. This is cost-saving for both the legal industry and the customers.

• transparency - blockchain-based contracts have baked-in compliance thereby providing no room for ambiguity. Being a distributed ledger technology, blockchains create a shared ledger which is accessible by all relevant parties.

• automation - according to CLIO’s Legal Tends Report 2018, lawyers spend about 48% of their time on administrative work. Utilising pre-designed smart contracts will automate non-billable administrative tasks and transactional work whereby offering greater efficiency in legal proceedings.

• cost reduction - automating manual tasks significantly reduces the time spent on drafting and amending legal documents. Since clients pay the documentation cost, introducing smart contracts will cause a reduction in transaction costs for both parties.

• efficiency - blockchain can streamline and automate many processes in the legal industry without losing any of the judicial authority. Also, cost and friction can be reduced by optimising administrative and critical tasks.

• data integrity - legal documents are vulnerable to ill-intentioned hackers who seek to steal, destroy or manipulate critical information. However, to preserve data integrity, data can be stored in decentralised locations. If there is an alteration of evidence the associated hash value will not match, making it obvious that a change has occurred. Also, given that data is held on a blockchain in a cryptograph manner and on multiple servers, the use of blockchain-powered platforms offers improved cyber security and potentially better disaster recovery properties. 

Different uses for blockchain technology in the legal sector 

• document management system (DMS) - DMS is specialised software for storing, accessing and managing files. This first step towards digitised documentation was created to simplify and accelerate office processes. It has great security with customisable access rights, data backup, and maintains regulatory compliances by simplifying data classification. DocFlow is just one example of a blockchain-powered DMS platform available for lawyers to improve the ability to track documentation, be more trustworthy and accelerate the whole document management process.  Although DMS has several advantages in the legal industry, some drawbacks have necessitated the need for a more efficient technology - i.e. blockchain. DMS is a methodology proven to be insufficient in handling legal documentation due to its inability to track changes and vulnerability to document duplication. The legal industry functions on the principle of integrity, security and confidentiality and so blockchain, being a distributed ledger with attributes such as immutability, precision, transparency and security, can uphold the values of the legal industry. 

• smart contracts - the current legal contracts are written with physical signatures. This manual processing is both time-consuming and vulnerable to human error. Blockchain technology can solve this by making legal documentation accessible and transparent. The cost and friction of generating and securing legal agreements are reduced by creating a contract that can automatically execute based on pre-specified criteria.

• intellectual property (IP) - in 2017, the US Patent and Trademark Office (USPTO) filed 440,000 new applications. As revealed by the annual report of that year, it took USPTO about 16.3 months to complete one patent registration procedure. The approval process is lengthy, making it challenging to examine who created an intellectual property first. Blockchain brings solutions to this by creating ledgers for IP owners; these ledgers can be smart contracts, setting up terms and conditions and types of remuneration. Through this, copyright cases ought to be able to be processed more quickly as data can be made available in almost real-time so that, in theory, disputes can be settled faster.

• document notarisation - firms such as Stampd, Blocksign and Stampery have developed blockchain technology to provide notary services to prove the existence of a document at a particular point in time that can be verified independently. Blockchain technology can facilitate proof of existence through hashing the document and storing the value in the blockchain. It also enables proof of ownership by hashing the record retrieved by the transaction ID and this enables seamless transfer of document ownership, security to stored documents and deeds, and creates open transactions for the data network.

• property rights - blockchain technology enables real estate transactions to use fewer intermediaries, thereby the selling and buying property in a transparent and immutable way can be more efficient. Blockchain-based ledgers offer a new form of property rights management by being able to both time and date stamp and record when the intellectual property (IP) has been lodged/ sent to a third party. Fileprotected, based in California, is a good example of a blockchain platform where owners of IP can register their IP and a history of how, when and with whom it was shared.

• chain of custody - gathering evidence is the core of any investigation; validating the findings and proper documentation is essential, particularly when a case lasts for many years, and along the line of a case evidence gathered at the beginning may become critical in the later stages. Correct and regular documentation (paper-based or electronic) of the chain of custody will make it easier for the legal authorities to identify the vital information whenever required. Paper-based documentation is cumbersome but equally security concerns have been raised about electronic evidence because it is stored in a centralised database. Blockchain brings auditability and traceability to the system by allowing time-stamped cryptographic records.

Challenges of blockchain technology in the legal sector   

• the legal industry is complex - because of the importance of evidence and documentation, hard copies can take precedence over digital copies and this may create a barrier for greater use of blockchain.

• technological indifference - historically, there has been a lack of investment in technology in the legal industry. In 2019, the law society’s LawTech report showed that interest remained low even with the increase in the use of technology in many sectors. Moreover, legal stakeholders are not in a hurry to adopt any change with their apprehension appearing to stem from the drawn-out legal proceedings. Although they seem not willing to let this pass, these attitudes would appear to be changing (as highlighted by the PwC 2021 survey mentioned above).

• legal issues - blockchain is a widely accepted technology in many countries but some are still finding it hard to trust it. The lack of central governance and the fact that the legal aspect of the decentralised approach both present a challenge in some jurisdictions.

• scalability - this has been cited as a reason why blockchains cannot be used in the legal industry, although as blockchain technology develops this is becoming less of an issue.

So, blockchain technology offers the legal industry both opportunities and threats. There is certainly considerable work for lawyers involved in advising those firms which are now using blockchain technology and, to do so, the lawyers often need to have a sound appreciation of not only the legal issues, but the technology itself. Furthermore, with their ability to automate processes, the advent of smart contracts is likely to mean many industries will be using these contracts and, as Forbes has reported: “In general, smart contracts are enforceable as long as they follow the basic rules of contractual agreements”. Accordingly, it is important to understand how the blockchain works and the risks and challenges associated with its incorporation. In spite of this, further advances to blockchain-powered platforms potentially offer the legal industry even greater benefits by improving both capabilities and workflow and the potential litigation of organisations miss use of  blockchains or the digital assets this technology can create has not even been mentioned here ….