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D2LT Thought Leadership

Source: Finance Derivative

Smart Legal Contracts – not a smart direction

Does the arrival of smart legal contracts presage the “Susskindesque end of lawyers”, genuinely creating the scenario of “Code Is Law”?  Of course not, says Akber Datoo, CEO, D2 Legal Technology, rather, it creates both opportunities and challenges as part of the broader digital agenda. 

As both a lawyer and a computer scientist, Akber explains why smart legal contracts increase, not decrease, the need for both the law and lawyers – and calls for legal experts to rapidly extend their skill set to embrace technology and data.

Maturity Curve

There are no specific barriers in English Law to the adoption of smart legal contracts. Defined by the Law Commission as: “A legally binding contract in which some or all of the contractual terms are defined in and/or performed automatically by a computer program”, their work in this area published on 25 November 20211, states: “We have concluded that the current legal framework is clearly able to facilitate and support the use of smart legal contracts. Current legal principles can apply to smart legal contracts in much the same way as they do to traditional contracts, albeit with an incremental and principled development of the common law in specific contexts. In general, difficulties associated with applying the existing law to smart legal contracts are not unique to them, and could equally arise in the context of traditional contracts.”

Clearly, the definition and this statement is just the beginning of the journey, seeking to encourage innovation to fulfil the commercial promise of the Smart Legal Contract – which is compelling. It is expected to revolutionise business over the next decade. Its adoption is, however, not without its challenges – as arguably, is any significant evolution in any field.

The Solution to Trust is not just the Immutable Contract

As soon as a smart legal contract is placed on a Distributed Ledger Technology (DLT), the agreed automation is unchangeable. On the one hand, this is the very attraction – removing the need for trust between both parties – the trust is placed in the code.  But that also means any failure in that code cannot be amended. Essentially, while the smart legal contract is not immune to legal intervention and other forms of governance, resolving a problem is extremely difficult.

For example, what happens if it turns out the smart legal contract was illegal? If there was fraud involved? If someone made a coding error? Or simply that circumstances have changed? The automation cannot be stopped. Even if the courts might rule that it should stop, the technology cannot be halted. The only option will be to set up some form of reverse transaction to make the adjustment. Far from an ideal situation.

The use of DLTs for smart legal contracts highlights a severe lack of ‘after the event protection’. Traditional contracts encourage the growth of trust during relationships between the parties, especially relationship level agreements such as the ISDA Master Agreement (“famously referred to by J Briggs in the Court of Appeal as ‘[…] probably the most important standard market agreement used in the financial world”)2.  They include flexible tools, such as the use of elastic and flexible terms such as ‘acting reasonably’ and ‘good faith’.  In addition to this, there is the ability to seek mutually acceptable outcomes should the truly unexpected occur to the surprise of the parties, through mediation, arbitration – or the backstop of the courts themselves.

These are not concepts that can be applied to the purist “code is law” philosophy that underpins some views of how smart legal contracts ought to evolve.  This results in a language of automation that is restrictive to business and the code unstoppable. Yes, we require a degree of immutability and automation – but the law is king over code, and smart legal contracts need to be designed to allow the law to intervene if we are going to allow the use of smart legal contracts for serious commercial transactions.

Lawyer Imperative

To make smart legal contracts work correctly given their immutability and automated nature, both parties need to know – or attempt to know – every possible event that may happen in the future which is, of course, impractical for most reasonably complex business transactions. Who has the expertise to ensure that every contingency (including mandatory actions ordered by a court of law) are considered and agreed between the parties (in the code)? The truth is, even in order to imagine and provide for some of those scenarios if we are going to empower the code, the role of the lawyer will become more important than ever.

A large part of a lawyer’s job is to tease out the needs and desires of a client, smoothing out contradictions and flagging potential eventualities. Programming a smart legal contract is tantamount to translating those intentions into code – which is great, if both parties are in control of that code. Yet the model being proposed by many in the industry is for lawyers to design the smart legal contract as usual and then hand it over to a developer to draft the code.

Traditional contract interpretation is hard enough.  This new world merely exacerbates the difficulties. Does the coder truly understand the law effect being sought by the lawyer? Does the lawyer truly understand the operation of the code being put in place by the developers? Any mistakes, any errors or misinterpretations will have a significant and severe impact because the smart legal contract is (as suggested above), largely immutable. It is now vital for lawyers to understand code and operate in this digital sphere. Lawyers need to be able to test a software program, just as they test scenarios anticipated by a contractual clause today. The difference will be rather than using natural language prose, the testing will be done through the context of high-level programming code – debugging through the code (that does look like natural language – yes, Solidity, Rust, Vyper and other smart legal contract code is not practically written in 1s and 0s, rather resembles natural language by design!).

Limiting Effect

Smart legal contracts are a long way from reaching maturity. There are many issues to address. As noted above, a degree of reversibility will have to be created, otherwise there will be a finite limit on the potential complexity and value of these automated agreements. But the shift is hugely exciting and offers enormous potential to the industry – if the right steps are taken.

Calls from some quarters for smart legal contracts to be based upon natural language so that they can be understood by judges will place a serious limit on the extent to which they can be deployed. Challenges around the management of complexity will constrain the use of automation with any degree of sophistication. It will also create the risk that firms could be sued for negligence due to mistakes in the coding phase leading to contracts failing to achieve the goals of both parties.  Calling for natural language and translation is a short-sighted approach and one that will not only delay the inevitable increasing adoption of automation but also add complex layers of failure.

Smart legal contracts offer a great deal of promise. However, there is a huge amount to be done by the legal community to embrace, explore and understand if that promise is to be realised. Not only will skills and toolkits need to change, but lawyers must play an imperative role in understanding the true limits of automation and determining where good, old fashioned human judgement remains king. The onus is now on lawyers to take ownership of smart legal contracts, discover and embrace new skills and gain the confidence required to accelerate maturity – without that committed smart legal contracts will, at best, fail to deliver on their promise and, at worst, create a global legal mire that could take generations to unpick.

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Business

Why email marketing remains one of the best forms of digital marketing

Crafting a strong email marketing strategy involves a real balance between creativity and making data-driven decisions, which, is just one of the roles undertaken by marketing and data company Go Live Data on behalf of its many clients.

Guiding some of the biggest corporates in the UK including Amazon Business, AxA and Premierline Business Insurance, Adam Herbert, CEO of Go Live Data, advises on the key components to a successful email campaign and why as one of the most effective marketing tools available, email still plays a crucial role in digital marketing:

Forming a direct means of communication, emails provides a and two-way access between businesses and their customers. And it may sound obvious to say, but unlike social media or other digital channels, every email allows marketers to reach their audience straight into their inbox, and this is where individuals are most likely to engage with the content they’re being shown.

Offering a high return on investment,  emails consistently deliver one of the highest ROI’s compared to other forms of digital marketing such as PPC and advertising. According to studies, the average is around £40 for every £1 spent, which is huge; and due to the low cost of email, its ability to drive conversions and to retain customers.

What’s more, with email segmentation and many personalisation techniques available, marketers can tailor their messages to specific groups of their audience, based on demographics, their behaviours, interests, and purchase history making them not only very targeted, but personalised too. The key is to deliver relevant content to subscribers, which means marketers can increase engagement, conversions, as well as customer satisfaction.

There are specific platforms which allow for automation, giving marketers the ability to set up automated workflows triggered by user actions and also means that marketers can deliver timely and relevant messages at scale, by nurturing leads, as an effective way to guide customers efficiently through the sales funnel.

Emails are also an excellent way to build customer relationships, by nurturing over time. By consistently delivering valuable content, exclusive offers, and personalised recommendations, businesses can strengthen the ‘bond’ with their audiences and increase brand loyalty. Email provides a means of two-way communication, which allows customers to send in their feedback, to ask any questions they may have and to  engage with a brand directly.

They are also a great way to drive traffic to your website, blog and social media, or any other digital channels connected to your business. By including attractive or compelling calls-to-action (CTAs) and relevant content, you can encourage subscribers to take action such as making a purchase, signing up for a webinar, or downloading a resource, which in turn will drive conversions and revenue for your business.

Email platforms offer substantial analytics and reporting functions that enable marketers to track the performance of their campaigns in real-time. Monitoring of key metrics such as open rates, click-through rates, conversion rates, and revenue generated, allows marketers to measure the effectiveness of their campaigns and of course make data-driven decisions to optimise and plan future activities.

Overall, emails are an integral component of a digital marketing and by leveraging email effectively, businesses can engage their audience, nurture leads, drive sales, and ultimately grow their businesses.

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Business

Conflicting with compliance: How the finance sector is struggling to implement GenAI

By James Sherlow, Systems Engineering Director, EMEA, for Cequence Security

GenerativeAI has multiple applications in the finance sector from product development to customer relations to marketing and sales. In fact, McKinsey estimates that GenAI has the potential to improve operating profits in the finance sector by between 9-15% and in the banking sector, productivity gains could be between 3-5% of annual revenues. It suggests AI tools could be used to boost customer liaison with AI integrated through APIs to give real-time recommendations either autonomously or via CSRs, to inform decision making and expedite day-to-day tasks for employees, and to decrease risk by monitoring for fraud or elevated instances of risk.

However, McKinsey also warns of inhibitors to adoption in the sector. These include the level of regulation applicable to different processes, which is fairly low with respect to customer relations but high for credit risk scoring, for example, and the data used, some of is in the public domain but some of which comprises personally identifiable information (PII) which is highly sensitive. If these issues can be overcome, the analyst estimates GenAI could more than double the application of expertise to decision making, planning and creative tasks from 25% without to 56%.

Hamstrung by regulations

Clearly the business use cases are there but unlike other sectors, finance is currently being hamstrung by regulations that have yet to catch up with the AI revolution. Unlike in the EU which approved the AI Act in March, the UK has no plans to regulate the technology. Instead, it intends to promote guidelines. The UK Financial Authorities comprising the Bank of England, PRA, and FCA have been canvassing the market on what these should look like since October 2022, publishing the results (FS2/23 – AI and Machine Learning) a year later which showed a strong demand for harmonisation with the likes of the AI Act as well as NIST’s AI Risk Management Framework.

Right now, this means financial providers find themselves in regulatory limbo. If we look at cyber security, for instance, firms are being presented with GenAI-enabled solutions that can assist them with incident detection and response but they’re not able to utilise that functionality because it contravenes compliance requirements. Decision-making processes are a key example as these must be made by a human, tracked and audited and, while the decision-making capabilities of GenAI may be on a par, accountability in remains a grey area. Consequently, many firms are erring on the side of caution and are choosing to deactivate AI functionality within their security solutions.

In fact, a recent EY report found one in five financial services leaders did not think their organisation was well-positioned to take advantage of the potential benefits. Much will depend on how easily the technology can be integrated into existing frameworks, although the GenAI and the Banking on AI: Financial Services Harnesses Generative AI for Security and Service report cautions this may take three to five years. That’s a long time in the world of GenAI, which has already come a long way since it burst on to the market 18 months ago.

Malicious AI

The danger is that while the sector drags its heels, threat actors will show no such qualms and will be quick to capitalise on the technology to launch attacks. FS2/23 makes the point that GenAI could see an increase in money laundering and fraud through the use of deep fakes, for instance, and sophisticated phishing campaigns. We’re still in the learning phase but as the months tick by the expectation is that we can expect to see high-volume self-learning attacks by the end of the year. These will be on an unprecedented scale because GenAI will lower the technological barrier to entry, enabling new threat actors to enter the fray.

Simply blocking attacks will no longer be a sufficient form of defence because GenAI will quickly regroup or pivot the attack automatically without the need to employ additional resource. If we look at how APIs, which are intrinsic to customer services and open banking for instance, are currently protected, the emphasis has been on detection and blocking but going forward we can expect deceptive response to play a far greater role. This frustrates and exhausts the resources of the attacker, making the attacks cost-prohibitive to sustain.

So how should the sector look to embrace AI given the current state of regulatory flux? As with any digital transformation project, there needs to be oversight of how AI will be used within the business, with a working group tasked to develop an AI framework. In addition to NIST, there are a number of security standards that can help here such as ISO 22989, ISO 23053, ISO 23984 and ISO 42001 and the oversight framework set out in DORA (Digital Operational Resilience Act) for third party providers. The framework should encompass the tools the firm has with AI functionality, their possible application in terms of use cases, and the risks associated with these, as well as how it will mitigate any areas of high risk.

Taking a proactive approach makes far more sense than suspending the use of AI which effectively places firms at the mercy of adversaries who will be quick to take advantage of the technology. These are tumultuous times and we can certainly expect AI to rewrite the rulebook when it comes to attack and defence. But firms must get to grips with how they can integrate the technology rather than electing to switch it off and continue as usual.

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Business

Recognising the value of protecting intellectual property early builds strong foundation for innovators

Innovation Manager at InnoScot Health, Fiona Schaefer analyses an essential facet of developing ideas into innovations

Helping the NHS to innovate remains a key priority during this period of recovery and reform. Even within the current cash-strapped climate, there is the opportunity to maximise the first-hand experience of the healthcare workforce and its knowledge of where new ideas are needed most.

Entrepreneurial-minded, creative staff from any discipline or activity are often best placed to recognise areas for improvement – the reason why a significant number of solutions come from, and are best developed with, health and social care staff.

NHS Scotland is a powerful driver of innovation, but to truly harness the opportunities which new ideas offer for development and commercialisation, the knowledge and intellectual property (IP) underpinning them needs to be protected. That vital know-how and other intangible assets – holding appropriate contracts for example – are key from an early stage.

Medical devices can take years to develop and gain regulatory approval, so from the outset of an idea’s development – and before revenue is generated – filing for IP protection and having confidentiality agreements in place are ways to start creating valuable assets. This is especially important when applying for patent protection because that option is only available when ideas have not been discussed or presented to external parties prior to application.

Without taking that critical initial step to protect IP, anyone – without your permission – could copy the idea, so anything of worth should be protected as soon as possible, making for a clear competitive advantage and ownership in the same sense as possessing physical property.

The common theme is that to be successful – and ultimately support the commercialisation of ideas that will improve patient care and outcomes – the idea must be novel, better, quicker, or more efficient than existing options. Furthermore, to turn it into a sound proposition worth investing in, it must also be technically and financially feasible. It isn’t enough to just be new and novel – the best innovations offer tangible benefits to patient outcomes and staff working practices.

Of course, even more so in the current climate of financial constraints, the key question of ‘Who will pay for your new product or service?’ needs to be considered up front as well.

Whilst development of a strong IP portfolio requires investment and dedicated expertise, when done well and at the appropriate time, then it is resource well spent, offering a level of security whilst developing an asset which can be built upon and traded. There are various ways commercialisation can progress and whilst not all efforts will be successful, intellectual property is an asset which can be licensed or sold to others offering a range of opportunities to secure a good return.

In my experience, however, many organisations including the NHS are still missing the opportunity to recognise and protect their knowledge assets and intellectual property early in the innovation pathway. This is partly due to lack of understanding – sometimes one aspect is carefully protected, whilst another is entirely neglected. In other cases, the desire to accelerate to the next stage of product development means such important foundational steps are not given the attention required for long-term success.

Good IP management goes beyond formally protecting the knowledge assets associated with a project, e.g. by patenting or design registration, however. When considered with other intangible assets such as access to datasets, clinical trial results, standard operating procedures, quality management systems, and regulatory approvals, it is the combination which will be key to success.

Early securing of IP protection or recognition of IP rights in a collaboration agreement, demonstrates foresight and business acumen. Later on, it can significantly boost negotiating power with a licensing partner or build investor confidence.

Conversely, omissions in IP protection or suitable contracts can be damaging, potentially derailing years of product development and exposing organisations to legal challenges and other risks. Failing to protect a promising idea can also mean commercial opportunities are missed, thus leading to your IP being undervalued.

Ideas are evaluated by formal NHS Scotland partner InnoScot Health in the same way whether they are big or small, a product, service, or new, innovative approach to a care pathway.

We encourage and enable all 160,000 NHS Scotland staff, regardless of role or location, to come forward with their ideas, giving them the advice and support they need to maximise their potential benefits.

Protecting the IP rights of the health service is one of the cornerstones of InnoScot Health’s service offering. In fact, to date we have protected over 255 NHS Scotland innovations. Recently these have included design registration and trademarks for the SARUS® hood and trademarks for SCRAM®, building and protecting a recognised range of bags with innovative, intuitive layouts. Spin outs such as Aurum Biosciences meanwhile have patents underpinning their novel therapeutics and diagnostics.

We assist in managing this IP to ensure a return on investment for the health service. Any revenue generated from commercialising ideas and innovations from healthcare professionals is shared with the innovators and the health board through our agreements with them and the revenue sharing scheme detailed in health board IP and innovation policies.

Fundamentally, we believe that it is vital to harness the value of expertise and creativity of staff with a well-considered approach to protecting IP and knowledge input to projects from the start.

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