Possibilities for equity crowdfunding in Italy

You may also read this publication on the King & Wood Mallesons website

Equity based crowdfunding, generally speaking, is a system that enables investors to fund a company, generally a start-up or a small to medium sized enterprise, in return for equity, usually through the internet.

A comprehensive piece of legislation was approved in Italy in 2012 (D.L. no. 179 of 18 October 2012, so-called “Decreto Crescita 2”) aimed at regulating the equity crowdfunding phenomenon. This law, at first, allowed access to crowdfunding only to companies qualified as innovative start-ups. Subsequent regulatory interventions allowed crowdfunding access also to social enterprises but, above all, to all SMEs (not just the innovative SMEs). They also introduced the possibility to undertake collective investment (i.e. Italian OICR), and for companies investing mainly in innovative start-ups/SMEs to place their capital online through the equity crowdfunding portals.

Although this legislation still presents some elements of rigidity, it has evolved significantly in order to adapt to market requests.

It’s interesting to note that the collection of financial capital through the internet presents many similarities with Initial Coin Offerings (ICO). ICOs have had resounding worldwide media success in the last few months, even though they encountered some regulatory misfortunes. In fact, in some jurisdictions this kind of capital raising has been prohibited (for example in China and South Korea).

An Initial Coin Offering (ICO) is a type of crowdfunding through which an entity places on the market a future cryptocurrency (coin or token) in return for a cryptocurrency already existing (such as Bitcoin) to finance its project, usually described to the public in a white paper. Those who adhere to the ICO and purchase a cryptocurrency bank on the hope that the underlying business will be successful and that the cryptocurrency will appreciate, in order to obtain a profit when the currency is later sold on the market. In ICOs the funding could also be exchanged for an equity token (holding an interest in the issuing company) or a utility token (currency with secondary functions that usually allows benefits to be obtained on the platform financed).

Given the analogous purpose of ICO and equity crowdfunding – both being systems for collecting risk capital for start-ups and small businesses outside regulated markets – and given the total lack in Italy, as of today, of specific regulation dedicated to ICOs, we considered whether the Italian crowdfunding law, briefly described below, could be a potentially useful tool to provide a regulatory framework also for ICOs.

Italian crowdfunding legislation

Equity crowdfunding portals

The “portal” is the online platform which has as its exclusive purpose the facilitation of the collection of risk capital by the investors. The portal is a website with the role of a mediator between the issuing company and the investor. The offer of the financial instruments to the public can be carried out exclusively through one or more registered and regulated portals.

The portal’s manager ensures that, for each raising campaign, the amount necessary for completing the order is available in the account dedicated to the investor opened in the banks and in the investment firms to which the orders are communicated.

Secondary trading

The subscription and the subsequent disposal of shares representing the capital of the issuing company may be carried out through intermediaries authorized to provide investment services purchasing the shares in their own name and on behalf of investors or buyers who adhered to the raising campaign through the portal.

Corporate characteristics

Crowdfunding campaigns are carried out publishing specific offers on website portals, the “online shop window”, through which the issuing company offers a “risk capital instrument” to investors, i.e. quotas or shares having specific rights.

The investment takes place against the investor’s assignment of quotas or shares with special rights that make the investment “desirable”. The practice is to approve a capital increase excluding the option right for existing shareholders.

Cross border crowdfunding

Italian law regulating crowdfunding applies exclusively to companies with registered office in Italy or in a European Union country or in a country party to the Agreement on the European Economic Area, as long as they have a production site or a branch in Italy.

The European Commission has expressed its intention to submit a proposal concerning EU framework on crowd and peer to peer finance during the first months of 2018. To this end, a public consultation was launched focusing mainly on two themes:

  1. cross-border crowdfunding, which consists of carrying out crowdfunding activities outside the country’s borders, without requesting specific authorization in each European country; and
  2. implementation of an effective common risk management framework to mitigate the risks relating to investments in crowdfunding campaigns.

The Italian legislation on equity crowdfunding, in any event, does not prevent foreign companies from accessing the Italian portals. The condition of having an Italian fiscal code, previously required for the registration on an equity crowdfunding portal, further to a very recent regulatory intervention, is no longer required for foreign residents, therefore making easier for these operators the access the Italian market.

Conclusions

Italian crowdfunding legislation could be a useful platform and starting point to think about ICO regulation. The key issue is the regulation and management of cryptocurrencies, including the possibility of creating restricted accounts in which the transfers of cryptocurrencies are tracked via the blockchain platform. This would have the added benefit of facilitating the dialogue between the banking industry and blockchain technology helping Italian operators accelerate their Fintech presence. Tax and regulatory issues related to cryptocurrencies of course need to be assessed.

cropped-foto-stefania-sito-web-3.jpgStefania Lucchetti , foto pietroPietro Boccaccini and foto AlessandroAlessandro Morleo

© 2018. For further information Contact the Authors

Articles may be shared and/or reproduced only in their entirety and with full credit/citation.  This post is for information only and is it is not to be considered legal advice.

Versione in lingua italiana

And the Regulators Arrived: from SEC’s Ruling to the PBOC’s Ban of Initial Coin Offerings

Over the past months, the cryptocurrency market has remained in the spotlight not only for the fluctuations in the major coins’ interest rates (Bitcoin, Ethereum), but also for the emergence and consolidation of a new way of raising capital in the digital token world: Initial Coin Offerings (ICOs).

The reason leading to the launch of an ICO is simple: the need to raise initial or additional funds to start or continue the development of a blockchain-based technology. This funding method consists in issuing a certain amount of digital tokens in what seems increasingly to be a sort of Initial Public Offering: tokens are sold in an auction to investors in exchange for ethers or bitcoins or other cryptocurrencies, or rarely for fiat money as dollars or pounds.

The first example dates back in 2013, with the pioneering Mastercoin’s ICO collected over $7 million, followed by the more famous Ethereum’s in 2014. A significant surge has been observed during this year. In 2017, there has been over 90 ICOs with an overall funds collection of $1.25 billion. For the first time ever, in June the amount of funds raised through ICOs overtook the total early stage Venture Capital funding for companies of the same type. And so also in July.

Regulatory Vacuum

Launching an ICO is a very convenient method to raise funds since it does not require any kind of disclosure obligations or regulatory compliance, and it allows to avoid most of the costs linked to more traditional funding methods such as venture capital. Up to July of this year, promoters of ICOs have been able to operate in the absence of clear and strict regulatory provisions regarding investor protection or market fairness and integrity: for instance, there are no rules establishing which type of investors can put money into an ICO, and thus so fare anyone has been able to participate.

It is also often not very clear what investors gain from participating in an ICO as the investment in most cases does not lead to the acquisition of shares in a company. In the majority of cases, these tokens are directly connected to the project, and are considered necessary to facilitate access to the network and the use of services it promises to offer once fully implemented. Their use can range from buying storage space on a new hosting and e-mail management platform based on blockchain, to ordering products on the company online store.

Although the apparently modest or absent level of usage outside the closed environment of the issuing company, digital tokens often turn into new currencies, which are then traded for cryptocurrencies or fiat money in online platforms, thus giving rise to a secondary market in the full sense of the term. The more the underlying project receives support from investors and market operators, the more its tokens’ exchange rate rises, starting a spiral of tensions and financial speculation mechanisms that often end up not reflecting the effective market fundamentals.

The SEC’s Ruling in The DAO’s Case

The SEC’s Ruling

On July 25th, the U.S. Securities and Exchange Commission (SEC) decided to step in, and released a Report and an Investor Bulletin on The DAO’s ICO, after investigating whether the offering promoted by the organization had violated federal securities laws.

The DAO was a “decentralized autonomous organization”, a virtual entity without a common legal status, run and managed under rules encoded in computer programmes – called smart contracts –  hosted on a blockchain (often, the Ethereum’s one). It operated as a decentralized venture fund, promoting an ICO that resulted in one of the largest in the industry. Started in April 2016, The DAO’s ICO raised approximately $150 million ethers, the cryptocurrency running on Ethereum’s blockchain. More than 11.000 people decided it was worth investing their money in this project.

But on June 17, some hackers exploited a code problem and drained funds from the platform, for a total of 3.6 million ethers (approximately $70 million at the time).

The investigation pursued by the SEC’s Enforcement Division started straight after these events, with the aim of verifying if The DAO, when launching its funding campaing, was subject to the Commission’s jurisdiction amd then must comply with its provisions. The assessment of whether there was such an infringement ended with the conclusion that The DAO tokens were indeed securities, and therefore their sale was subject to federal securities laws. Specifically, the report reads that “Based on the investigation, and under the facts presented, the Commission has determined that DAO Tokens are securities under the Securities Act of 1933 (“Securities Act”) and the Securities Exchange Act of 1934 (“Exchange Act”)”.

Digital Tokens as Securities

The applicability of U.S. federal securities laws does not depend on the corporate form or the organization type of the issuing entity, but is based on “the particular facts and circumstances, without regard to the form of the organization or technology used to effectuate a particular offer or sale”. And in the case of The DAO, in fact, were the “particular facts and circumstances” that gave the Commission the legal certainty that The DAO Tokens presented specific features of securities, and more specifically investment contracts.

The Howey Test

The principle at the basis of this classification of The DAO Tokens as securities derives from a definition established in 1946 in the case SEC v. W.J. Howey Co. Under the Howey Test, whether an investment instrument is a security requires a substance-over-form analysis. Obiouvsly, a stock or bond is a security, but the definition of “investment contract” can be ambiguous, lending itself to different interpetations. The Commission, building on the Supreme Court’s case-law and interpretation, clearly restates that, in deciding whether something is a security, “form should be disregarded for substance, and the emphasis should be on economic realities underlying a transaction, and not on the name appended thereto”. Even if The DAO defined its ICO as a “crowdfunding campaign”, it did not possess the afore-mentioned requisites for being exempted according to the regulations in force.

Scope of the SEC’s Ruling

The SEC has deemed it appropriate to report exclusively on the legal status of The DAO Tokens. This means that in the future not all ICOs will be immediately brought under its jurisdiction and within the federal legal framework. It will be “the facts and circumstances, including the economic realities of the transaction” to determine whether an ICO involve the offer and sale of a security. Where it is established that these conditions are fulfilled, that ICO must be conducted pursuant to US federal securities laws, with the possibile consequence entrepreneurs looking to raise funds through this avenue that compliance costs associated with the ICO may outweigh the benefits of raising money through this funding method.

The Chinese Ban and Other Positions in Europe and Asia

Shortly after, another authority decided to give new emphasis to the issue. On September 4th, The People’s Bank of China (PBOC), the Chinese central bank, declared ICOs illegal, simultaneously banning any similar funding initiative. The decision came after a long investigation. According to PBOC’s statement, Inital Coing Offerings are a serious disturbance in the economy of the country and in its financial market integrity, and therefore must be considered illegal. Consequently, online platforms trading digital tokens are required to stop conversions between coins and fiat currencies, while banks are prohibited from offering financial services related to ICOs. Companies that received money through an ICO will be required to reimburse the funds (this is approximately $766 million). China, with this statement, has become the first country to ban ICOs.

After the PBOC’s move, several other governmental and financial authorities defined their position on Bitcoin and Initial Coin Offerings. Central banks of Indonesia and Ukraine has highlighted that bitcoins will no longer be considered and accepted as a means of payment. The Deputy Chairman of Ukraine’s central bank said at the Ukrainian Financial Forum that global regulators are not taking action moved by fears regarding cryptocurrencies’ growing volume, regulators are instead concerned only with the fact that people can lose money investing in cryptocurrencies. The conclusion of the Ukrainian official was that Bitcoin cannot even be considered a currency, due to the fact that it is not issued by any government body; thus it can’t be used and legally recognized as a means of payment.

Similar observations were made by the Bank of Indonesia: the Indonesian authority stated that Bitcoin transactions are not legally allowed under the Service Provider of Payment System legislation.

The Singapore Monetary Authority and the Hong Kong Securities and Futures Commission took a more open position, stating that under certain conditions ICOs may fall under securities laws but not taking any excessively strong position.

Long-Term Scenarios

After the entry into the field of global regulators as new, active players in the ICO space, it is difficult to predict what could be the likely future scenarios in ICOs and the cryptocurrencies’ market.

The SEC did not await to draw up a complete regulation before addressing the matter. Its decision to circulate some preliminary statements on ICOs in relation The DAO’s case can be interpreted as an early signal given to the market: the SEC’s intention is in all likelihood that of developing a comprehensive legal framework on the issue. A path, however, that might be gradual and targeted to specific occurrences.

The actions taken by the PRC’s central bank on the contrary take a much firmer standpoint on the matter.

An explanation to this strong and drastic decision is offered by Stefano Tresca in an article published on Economyup.it. Tresca is an entrepreneur, co-founder of Canary Wharf’s Level39, Europe’s biggest Fintech accelerator. First of all, Tresca draws a clear distinction between Bitcoin and Ethereum: while bitcoins can be mined in a limited amount, at the opposite ethers – the cryptocurrency of the Ethereum ecosystem – can be issued with no maximum limit. An explanatory comparison could be made between gold and fiat currencies: gold is a finite resource, and owes its value from this feature, while central banks can issued much more dollars or pounds than they can guarantee.

According to Tresca, once this fact has been assimilated, we should answer these two questions: where do the most important miners live? And where is the largest amount of bitcoins in the world located? In both cases, the PRC. By banning ICOs, the PRC – as we’ve just said a fundamental country in Bitcoin geopolitics – obtains two results at the same time: avoid chaos and further instability in its financial market – which has been growing fast already for some years – and prevent the issuing of several new Ethereum-based digital tokens from companies launching ICOs, thereby favouring Bitcoin, the other cryptocurrency where the country is the worldwide market leader. In the short-term, the PRC’s ban has resulted in a sharp fall in Bitcoin’s exchange rate: despite new ICOs lead to the issuance of new Ethereum-based tokens, in fact, these tokens can be bought using bitcoins, pushing up its demand and the already high exchange rate. But in the long-term, the PRC’s ban – together with the SEC’s decision to regulate ICOs in the next future – may generate a positive effect.

The future is uncertain but what is certain is that cryptocurrencies and raising capital through Initial Coin Offerings is increasingly becoming an important way of financing for companies. This means that regulators worldwide will need to find a way to thread this into their rules, and in the long term this might provide a boost for entrepreneurship.

Each country should therefore consider how it can accept, perhaps regulate this space in order to allow it to thrive in safety for market operators and investors, carving out a place for itself on the market.

cropped-foto-stefania-sito-web-3.jpg

foto giacomo b

 

 

 

Stefania Lucchetti and Giacomo Bocale

© 2017. For further information Contact the Authors

Articles may be shared and/or reproduced only in their entirety and with full credit/citation.  This post is for information only and is it is not to be considered legal advice.

 

 

 

Token Sales and ICOs: why and when you need legal advice

Digital token sales are creating a gold rush on the web, with a token sale advertised every day in digital circles and social media and the movement – in some cases – of huge sums of money.

Token sales still move in international waters from a legal and regulatory point of view, however international regulators are increasingly paying attention to the issue and considering how to regulate certain specific risks associated with digital tokens, such as money laundering risks.

What is a token sale?

A digital token (“token”) is an intangible asset, cryptographically -secured (typically based on blockchain technology). It usually has a monetary value (based on a virtual currency exchange or cryptocurrency) and may entitle the token holder to certain rights (and potentially obligations and liabilities). Such rights and obligations may be set out in "normal" paper documents (such as an offering document or whitepaper) or may be included in a smart contract.

Tokens may be offered to raise funds for a project, in which case the token sale is labelled as "crowdfunding", or may give access to permanent rights and obligations, or even shares (or less regulated "units") of a company, in which case the offering may be labelled  "ICO (Initial Coin Offering)".

Once purchased, the token may or may not be able to be traded or – sometimes with limitations – exchanged back for money.

As token sales gain momentum, aside from obvious financial considerations (extreme volatility) and common sense assessment (whoever trades on the web needs to be able to recognize bogus offers such as Ponzi schemes), participants also need to be aware of a number of legal issues that need to be considered when participating in a sale – including when they need to seek legal advice.

I set out below a few important points to be considered, keeping in mind that the legal and regulatory landscape regarding cryptocurrencies and token sales is rapidly evolving, and the practice is evolving as well.  Recent token sales for examples have restricted participation from certain jurisdictions which raise legal/regulatory issues, eg the US and Singapore.

Do your due diligence

What is the underlying project for which the token is sold? What value does it propose to bring, who are or would be its customers? Is it technically sound, has it been economically analysed, does it have a specific timeline and how is the issuer accountable for the timeline?

Is there an actual organisation behind the project? What kind of organisation is it – a company, fund, trust, a DAO? Who is the team behind  the project? Do the individuals have a track record of successful projects? Is it a dedicated team or a “borrowed” team? Is the project seeking its first funds or does it have some institutional “real-life” investors?

Is the project legal?  Is it based in a specific country (and is it legal in that country) or is it completely virtual? Even in case it is completely virtual, where do the key participants to the project reside?

Is the project legal in your country? Is your participation in the project subject to approval, registration or a license?

And finally, what does the token do? What kind of rights does the token gives access to? What kind of activities does it enable? Is it genuinely attached to a project or does it look like a Ponzi scheme?

Assess the documentation

The token sale will be described and offered through a document (whether an offer document, a white paper, or a descriptive section of the website). Representations and warranties will be asked of the buyer eg as to his/her capacity to participate to the sale.

Some information included in the documents needs to be assessed carefully, in particular:

  • Whether and how you will be able to sell back the tokens
  • The existence of a lock-up period and what parameters it is tied to
  • Whether and how you will be able to trade the tokens to another investor (“secondary market”), always keeping in mind that this may attract other regulatory and legal issues
  • The issuer’s policies about data protection
  • The issuer’s cybersecurity policy
  • Termination events, or what happens if the project is interrupted.

Note that the more reputable issuers conduct anti-money laundering (AML) and know your customer (KYC) checks. It is always a good sign when AML/KYC procedures are set out as it means that the issuer is concerned about regulation.

Be aware of applicable (and evolving) regulations

The legal and regulatory landscape regarding token sales is uncertain and currently evolving. A key concern up to now has been money laundering and terrorist financing risks when transactions are anonymous (less so when the issuer carries out know your client procedures, see above) and the large quantity of funds raised and moved internationally and in a short time.

Other regulations also apply. A number of regulations will apply to the issuer based on where the issuer’s organization is incorporated and certain regulations will apply in jurisdictions where the project is based or where the buyer is based, such as consumer protection and data protection laws.

Most jurisdictions do not (at this stage) regulate virtual currencies per se however a number of international securities authorities are studying how to regulate activities involving digital tokens which do not function exclusively as virtual currencies, such as when they represent ownership or a security interest in an issuer’s assets or property, or represent a debt owed by an issuer so that they may be considered a debenture under certain jurisdictions’ laws.

The Monetary Authority of Singapore (MAS) for example clarified just on 1 August that the offer or issue of digital tokens in Singapore will be regulated by MAS if the digital tokens constitute products regulated under the Securities and Futures Act (SFA).

A lack of compliance by the issuer with applicable regulations may be unsafe for the buyer as well as while liability for compliance may fall on the issuer, lack of compliance may have consequences at best on the value of the token and at worse on the legality of the project.

Token sale may be suspended if the sale should have been approved or registered, any token you have bought may become worthless. If the issuer is investigated, the project may be interrupted. The buyer may be subject to additional obligations that were not set out in the initial documents.

A final note about tax, as tax advice should be obtained when trading tokens as some jurisdictions have stringent capital controls that may apply to cryptocurrencies and tax may be attracted in respect of any capital gains arising from the tokens.

cropped-foto-stefania-sito-web-3.jpg© Stefania Lucchetti 2017. For further information Contact the Author

Articles may be shared and/or reproduced only in their entirety and with full credit/citation.  This post is for information only and is it is not to be considered legal advice.

 

Why Artificial Intelligence Needs to be on Your Board’s Corporate Governance Agenda

Artificial Intelligence means many things at many levels. The most advanced form of Artificial Intelligence – or AGI (Artificial General Intelligence) – may not come to happen for a few years (or decades). However entrepreneurs, investors and board members need to be aware of what it is, what it could be, which changes it could bring about and what it could mean for their business.

At a more daily level, Artificial Intelligence is already part of our lives, and more specifically, of business.  Artificial Intelligence at its most basic level – or Artificial Narrow Intelligence as it is called (ANI) – is software which can process huge amounts of data (“big data”) based on a set of rules or instructions (“algorithms”) and turn it into meaningful information and problem solutions.

Artificial Intelligence is everywhere, most notably in smartphones and on a daily basis we interact with algorithmic based services such as Spotify, Amazon, Facebook, Netflix.

Some AI driven organizations like Facebook, Google (Alphabet), Amazon, IBM and Microsoft are investing greatly on AI development.  Algorithms drive their business.  However all other “traditional” industries are also being greatly impacted by AI: the automotive industry is facing a revolution with AI powered self driving cars (see my previous post Why Artificial Intelligence Will Need a Legal Personality), the retail supply chain is becoming increasingly efficient thanks to data and AI.

Not everyone is eager for AI to develop and although there are scientists (like Ray Kurzweil) eager to push the development of AI to the next level, some influential personalities in the field (notably Stephen Hawking and Elon Musk) have raised warnings about the need to thread carefully in the rush to develop and deploy AI.  Whatever your personal position on the matter, it is however undoubtedly true that all companies will adopt or continue to adopt increasingly sophisticated AI technologies at some level in the coming months or years to stay abreast of the market, be it to implement Industry 4.0 production and logistics solution or to meet their customers’ needs.

This is why boards of any industry cannot at this stage ignore the impact of Artificial Intelligence and what it means for their business, for their competitors’ business, what kind of opportunities it may bring and what kind of challenges and risks, and need to include a discussion about it in their corporate governance agenda.

What should a board be talking about when discussing Artificial Intelligence?

First of all, cybersecurity – which I have already discussed in a previous post (see Cybersecurity and board responsibilities). I will reiterate that data is one of the most valuable assets a company has – be it its customers’ data, its know how and IP, its historical records, data about its business operations and any kind of data that flows through the company’s servers.

Secondly, implementation of AI technology to the company’s core business – what kind of technology to purchase and what to use it for. This involves all industries (including the very traditional legal industry which is now being targeted with increasing demands to purchase expensive AI due diligence and disclosure technology).

Purchasing an AI based technology often involves processing and sharing data with the technology provider, and this again goes back to the point about cybersecurity and solid data infrastructure.

Finally, the need to update its language skills to understand the language of AI. I have discussed in a previous post (Self Aware Contracts) the language gap between traditional industries powered by natural language and the new developments brought about by AI powered enhancements which create the need for communication which was carried out in traditional language (eg, contracts) to be “translated” into machine language.

This means that developing those language skills, much like learning a second language, or bringing to the board table someone who has those language skills can and should be an important corporate governance priority for a company’s board of directors.

cropped-foto-stefania-sito-web-3.jpg© Stefania Lucchetti 2017. For further information Contact the Author

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Self Aware Contracts enabled by Ledger Technology (or Smart Contracts on Blockchain)

On 17 July Estonian legal tech Agrello went public with a cryptocurrency-based crowdfunding campaign structured as a token sale. Leaving aside the issues raised by token sales which will the the subject of a separate post, it is interesting to explore the value proposition of Agrello’s business, which is a legal tech aiming to change the market of commercial contracts.

Agrello was founded by a team of Estonian lawyers, academics, and information technology experts, with the vision of creating digital contracts that will change the way contractual parties interact with each other and interface with legal authorities.

Agrello-framework proposes what it defines as “blockchain-driven self aware agents-assisted contracts for a decentralized peer to peer economy”.

In plain words, smart contracts.

Agrello’s proposition is that while the traditional understanding of conventional contracts is an exchange of commitments by identified parties that are enforceable by law, formalized by a written document as evidence, when the commitments formalized under the contract are performed, the status of such commitments changes overtime and the agreement needs to be constantly updated to keep track of the evolving relationship between the parties, in particular whether the parties have or not complied with their obligations under the contract.

A blockchain based system would instead allow for an intelligent contract, which can keep track of the parties’ commitments and evolve over time. The blockchain is a ledger based technology which enables a trustworthy collaborative process because no single entity is in control and information is recorded through a programming language in an irreversible manner and confirmed once it is recorded in a number of different locations.

The parties would record their interactions as they progress all through the phases of negotiation and conclusion of the contract, performance and eventually termination of the contract – for example in the case of a tenancy agreement or a services agreement.

The idea is enticing and a few law firms have already signed up for the beta version of the technology.  The project is ambitious not only because it is new both from a technology and cultural point of view, but especially because it aims to bridge a large and perilous language gap: that between the traditional legal industry and the cutting edge blockchain technology.

Also the technology would certainly be beneficial from certain points of view but it also will need to address a number of difficult issues.

Benefits:

  • proof of action, in that the ledger can keep proof of payments made, actions taken, however only if they are digitally recordable
  • in traditional contracts, lawyers need to review the contract to check if an obligation was not performed, eg a deadline was missed. With a smart contract, the contracting parties and the lawyers no longer need to read and interpret the contract as the software agent transforms the contract obligations into logical machine readable obligations
  • permanent archive accessible by the parties without the need to refer to physical archives or an individual’s memory
  • information about payments can be cross referenced directly into other relevant ledgers, such as the company’s financial records
  • no need for intermediaries in the management of the contract (provided that the contracting parties can use the technology)

Issues:

  • monitoring of communications and keeping a ledger of interactions might make the relationship more crystallized and create further problems in contexts where a fluid relationship
  • the creation of smart contracts involves the use of a programming language (at this time the language used for programming contracts is Solidity) which legal professionals do not understand. And at the same time programmers do not understand legal language. It will therefore be very difficult to translate legal concepts into a programming language, also it will be difficult to litigate the contracts in front of a court, or even an arbitrator, as the programming language used does not allow for articulate language or nuances of expression.
  • the program risks becoming the judge of the contract and not only the keeper of the contract
  • the absence of nuances creates a crystallized relationship with no scope for human intervention in facilitating a soft resolution of problems

Other benefits and issues for sure will arise with adoption of the technology. Certainly, blockchain ledgers applied to contracts have the potential to lower costs and time spent on creation, update and archive of relevant information.  Automation also has a huge benefit in facilitating legal interactions and transparency, as information would be more easily available to interested agents eg tax authorities.   The risks are those generally explored of the limits of artificial intelligence, and the boundaries over which interactions facilitated exclusively by artificial intelligence can replace human judgment and human negotiation. The UK experiment of establishing online courts will run concurrently with smart contracts technology in verifying the limits of artificial intelligence applied to a legal context.

cropped-foto-stefania-sito-web-3.jpg© Stefania Lucchetti 2017. For further information Contact the Author

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Africa’s Digital Acceleration

The first time I visited Kenya and Tanzania it was at the beginning of year 2008 and I was surprised to see how countries with no phone lines had bypassed the need for infrastructure with mobile connection which was at times more widespread than in rural areas of Asia or even Europe.

Several years went by and in my second trip to Kenya (and first of many) in 2016 I discovered a country that rather than only accept deployment of existing technologies from US or Europe is also striving to be at the forefront of increasing innovation. Take M-Pesa (M – of course – for mobile, pesa meaning money in Swahili).  M-Pesa is a mobile phone – based money exchange platform, launched at the end of last decade by Safaricom and Vodacom in Kenya and Tanzania.  The service allows users to deposit money into an account stored on mobile phones, and transfer money on a direct peer-to-peer exchange through text messages, completely doing away with bank services or other intermediaries.

Mobile-based payment is a technology that has not quite taken off in Europe, US or Asia – though Apple pay is trying to push it through, with limited success – but has been transformative for microeconomy in Kenya, where there is still a large slice of population which does not have a bank account (and I might add – for those who do – ATM machines do not work as often as one might expect or hope for).

Since then, M-Pesa has spread wings also in a number of other countries in Africa, Middle East and Eastern Europe.  In the meantime, the appetite for digital services has grown. In May this year, Telkom Kenya launched a – very appreciated by its users – free whatsapp service.  The move could steer users from Telkom Kenya’s competitors, while at the same time allowing time for digital services powered by mobile apps (such as Amazon and Amazon Prime – which are not yet available in Kenya but hopefully soon will) to grow and spur data use.

Other African countries have joined the bubbling pot: in late 2016 Senegal announced the launch of eCFA Franc: a digital currency. It is not yet clear what kind of success eCFA Franc is having, but the idea and potential of it are certainly a promising start.

Education is not lagging behind: in April this year for example the Rwanda government announced a partnership with Microsoft with the intention to digitise Rwanda education through a “smart-classroom” project.  Nairobi schools offer very advanced programs fully integrating solid academics with access to technology.

What is the source of the wind behind Africa’s innovation streak?

Most African countries are developing economies with great potential for growth. In the past decades progress was halted for lack of  traditional old economy infrastructure (eg roads and landlines). However by doing away with the need to invest capitals and work in building infrastructure, and jumping straight to digital, there is now space to experiment with new technology without being weighted down by bottlenecks of existing infrastructure and its regulatory constraints.

Disintermediation is also the key to new possibilities. Where intermediation finds its bottle neck in bureaucracy and corruption, the possibilities offered by peer to peer technology (such as M-Pesa) and disintermediating technology such as blockchain are infinite.

Urban planning is another area where innovation would be of great benefit to Africa. Take the city of Nairobi, where a very modern lifestyle battles with the absence of modern and well connected roads while the Jomo Kenyatta International Airport is better connected than our (sadly) decreasingly connected Milan airports and the small and surprisingly efficient Wilson airport serves flights to a number of regional touristic and business destinations. A futuristic approach might do away with the need for roads and jump straight to drone transportation for logistics or even – with a further technological acceleration – experimenting with flying cars.

It is to be expected that a further acceleration in innovation will appear when entrepreneurs gain wider access to financing via venture capital funds or also non traditional means, such as crowdfunding.

cropped-foto-stefania-sito-web-3.jpg© Stefania Lucchetti 2017. For further information Contact the Author

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Do the risks of AI derive from AI being more human than we think?

On 12 June, Magic Circle firm Slaughter and May jointly with ASI Data Science published a white paper (the “Paper”) titled Superhuman Resources – Responsible Deployment of AI in Business , dedicated to exploring the benefits, risks and potential vulnerabilities of AI.

The Paper is well written, well researched and very interesting and I strongly recommend to read it.

It offers some elements of history of AI and a clear and simple definition of much used (and abused) terms such as Static v dynamic machine learning, General v narrow AI, Supervised v unsupervised machine learning.  It defines AI as a “system that can simulate human cognitive processes” and also goes as far as to define the human brain as a “computer on a biological substrate”.

The Paper then goes on to identify the already well known potentials of AI – ability to synthesize large volumes of data, adaptability and scalability, autonomy, consistency and reliability, as well as the less known or acknowledged potential for creativity.  Machines have in fact in recent years shown a surprising ability to produce creative works in the area of art, writing and design. News writing bots have already made their appearance in news articles such as Washington Post’s AI journalist Heliograf and other works of AI produced visual and expressive art have been widely published.

The key message of the Paper however is that while commentary on and investments in AI and machine learning seem so far to have focused on the potential upsides, a critical point (according to the authors) is missing: that AI can “only ever be useful if it can be deployed responsibly and safely”. The Paper then goes on to identify, and analyse in some depth, 6 categories of risk, 1. Failure to perform, 2. Social Disruption; 3. Privacy; 4. Discrimination (ie data bias); 5. Vulnerability to misuse; and 6. Malicious Re-Purposing.

Although the analysis is excellent, I do not agree with the Paper’s claim that the risks of AI have so far been ignored. The risks of AI have on the contrary often been magnified, if not only in innumerable well constructed science fiction movies, and regulators are not oblivious to AI. As already mentioned in a recent post, the EU Parliament has already set out, albeit not with such rigorous scientific approach and structure, a number of legal issues which AI raises and will raise and that need to be address for reliability and safety (see my earlier post Why Robots Need a Legal Personality ).

What struck me most from the Paper however was however that in providing a structured and detailed list of potential risks and pitfalls of AI, it also highlights that the key issue underlying them all derives from the fact that automated processes, as the report itself says by quoting Ian Bogost [2015, The Cathedral of Computation] “carry an aura of objectivity and infallibility” – yet AI is not infallible. Specifically it isn’t if : the system fails (Failure to Perform); it handles data disregarding privacy laws; it makes decisions having been exposed to data which is limited or biased. AI also can create- like any innovation – social disruption, it could be manipulated to be used [by humans] for mean purposes, or it could be maliciously re-purposed in the wrong hands.

So we learn that AI is subject to system errors or application errors, may make wrong judgments if it is only exposed to limited data, and may be subject to manipulation.

In essence, the key risks of AI derive from the fact that AI behaves more like a human than humans would think or hope for!  But then, if AI is a “system that can simulate human cognitive processes” wouldn’t fallibility be an intrinsic characteristic of AI, only perhaps with a degree of fallibility lower than that of humans?

The Paper recommends that businesses “be forward thinking and responsible” in designing and deploying AI which by design has systems that mitigate or restrict potential negative effects, and in particular to set out procedures, such as risk assessment and risk register, monitoring and alerting, audit systems to determine causal processes and accountability frameworks for algorithms.

This is all very valuable and very important. I still believe however that it misses the key point, exciting and risky at the same time, and that is that by allowing a machine to develop cognitive processes (and I deliberately use the word “develop” as I am not sure if “simulate” would correctly represent machine learning or creative expression) a new intelligent entity is created, which at some point will, or might, develop to the point of not being limited to being an instrument to be used at the hands of humans in accordance to human instructions, but will, or at least might, be self directed.  As I have already pointed out in my other earlier post AI legal issues, one of the key issues relating to the next AI generation is that they will have the ability not just to operate on big data based on algorithms designed and built in by humans, but to create their own algorithms.

And this brings me back to my original point, which is that one of the key legal issues to be addressed is to determine in which cases and at which point of development an AI needs to be provided with a legal personality.

cropped-foto-stefania-sito-web-3.jpg© Stefania Lucchetti 2017.  For further information Contact the Author

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Big Data and the Music Paradox

It is recent news that Spotify has settled a complex licensing dispute involving mechanical licensing rights, allegedly in order to clean up its affairs in view of a prospective IPO.

Mechanical rights under US law must be obtained (in addition to performance rights) when reproducing a piece of music onto a physical or digital support.  It is not clear if Spotify willingly avoided to pay mechanical rights or – as it claimed – it had no availability of the data necessary to sort out which publishers had legitimate claims over songs (there isn’t a central and reliable database covering all music rights to all songs).

Music licensing is a complex and disarticulated. Different countries have different nuances of copyright applicable to music (and different ways and means of collecting royalties). In some countries, particularly the US, the music publishing sector has traditionally licensed the performing rights and mechanical rights separately through different entities. This means that music distributors need to have license covering both the song and the recording, and both performing and mechanical rights. In the US this issue is partially addressed through a compulsory licence covering mechanical rights with a pre-set statutory rate to be paid, so streaming services are not required to negotiate terms and price with each right holder. However, often the owner can’t be identified, as while there are collecting societies that licence performing rights, mechanical rights are not represented by a single society nor is there a single publicly accessible database providing this information, therefore – according to Spotify – making it impossible (or too burdensome) for a streaming music provider to comply with mechanical rights obligations for all songs.

Whatever the reasons for Spotify’s legal lapse, certainly, it is a fact that digital distribution of music and particularly streaming needs to take a further leap forward in its ongoing legal catch-me-if-you-can race which has been going on for the past 20 years – since the time of 1999 Napster.

I have been a late adopter of Spotify but their theme-based compilations, and especially their running compilations which select songs matching your personal running beat were recently a revolutionary discovery for me.  As a lawyer and a mom of two boys, time for listening to music – or especially time for discovering new music and updating my playlists has been one of the first to disappear on my schedule, with the effect that music slowly started disappearing from my life. Yet, discovering new music and enjoying music had always been one the most fundamental and joyous artistic experiences for me.

Then I discovered Spotify. Just this morning, while I was running to one of Spotify’s compilation which offers songs matching the user’s running beat, I listened to about 15 songs that I had never heard of, of artists I have never heard of.  This certainly was not possible in pre-digital ages, where buying a tape or a CD was so expensive that you would listen to the same music or playlist over and over again for months on end until a boyfriend/girlfriend would introduce you to some new playlist of his/hers by copying it on tape or CD. And you would listen to that for months on end.  But it wasn’t so even in the iTunes years – iTunes made buying music affordable, but in order to listen to a song a user still had to know it, select it, download it. The only way to discover new music was the radio, with advertising and limited availability of choice and customisation as songs were selected by a human mind – the radio host.

With services like Spotify, music enters the realm of big data and a seemingly infinite number of music pieces are available and playlists for all tastes, moods, desires and functional needs are created by algorithmic configurations.  This is a new radical change in the dynamic of the music industry – particularly the relationship between listeners and music is revolutionized.  The magic of data-driven approach applied to streaming is that music is available in such quantity and variety, that paradoxically the relationship between user and music is disinter-mediated and direct because the algorithmic data stream allows for more nuanced experiences and choice.

The consequence of this is that an average user can access music and artists that s/he would perhaps have never considered before – and at the same time artists that would have had no clout are heard of by a greater audience. This certainly is a boost for the music industry, and for any single musician who wishes to expand the reach of her/his music.  At the same time, disintermediation necessarily bypasses those structures that had been put in place in previous eras to protect legal interests.

It is certainly necessary to create new structures where music can be discovered without getting caught up in legal tangles, while at the same time compensating an artist for beautiful music.

As data driven services emerge in the music industry, a data driven approach needs to be adopted by music societies as well. I am imagining a universal music society with a database to which artists and music labels sign up and songs and recordings are matched by a Shazam-type service (with conflicts resolved through an online dispute resolution service).  All streaming and downloading services would link to this database and payment to the relevant right-holder would be automatic and immediate. I go further by imagining different levels of payments, where for example new songs by unknown artists are remunerated based on a rating level by listeners, so that copyright compliance can be a boost to music discovery rather than a gateway to its distribution.

cropped-foto-stefania-sito-web-3.jpg

© Stefania Lucchetti 2017.  For further information Contact the Author

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AI legal issues

Al WiredNextFest di questi giorni si è accennato alle tematiche giuridiche sollevate dall’evoluzione del AI.
E’ mancato però uno spunto importante: i problemi giuridici che riguardano la prossima generazione di AI, in particolare per quanto riguarda la responsabilità, derivano dalla capacità di un AI di create i propri algoritmi e non solo di operare sulla base di quelli impostati dal costruttore. 

At WiredNextFest held in Milan these past few days there were conversations about legal issues deriving from the development of AI.  There was a key point missing however: one of the key issues relating to the next AI generation is that they will have the ability not just to operate on big data based on built in algorithms, but to create their own algorithms

https://lawcrossborder.com/2017/05/22/why-robots-need-a-legal-personality/

A proposal for a Family Business Corporate Governance Code

On 23 May at Bocconi University’s campus AIdAF-EY and Bocconi University presented their proposal for Family Business Voluntary Corporate Governance Code.

The Code was prepared by prof. Alessandro Minichilli and prof. Maria Lucia Passador.

Adherence to the Code would be voluntary. Its purpose is to create a reliable governance structure for non listed family businesses.  In recent years, several European countries, such as Belgium, Spain and Finland have promoted corporate governance codes for non listed companies.  IFC (World Bank Group) in 2011 published a Family Business Governance Handbook.

The benefits of adopting a reliable and transparent corporate governance structure are numerous for a non listed company.  A corporate governance structure not only protects the company’s business and assets, but it also makes the company more reliable to third party business partners and potential investors, especially international businesses.  It also attracts outside talent – as outside managers are often reluctant to join a close knit family business.

This is very good news especially in Italy, where family businesses contribute 94% of the national GDP (source: FFI Datapoints), however they often struggle on succession planning and expansion, which transparency and clear rules.

cropped-foto-stefania-sito-web-3.jpg© Stefania Lucchetti 2017.  For further information Contact the Author

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