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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

Empowering banks to protect consumers: The impact of the APP Fraud mandate

Source: Finance Derivative

Thara Brooks, Market Specialist, Fraud, Financial Crime & Compliance at FIS

On the 7th October last year, the APP (Authorised Push Payment) fraud reimbursement mandate came into effect in the UK. The mandate aims to protect consumers, but it has already come under immense scrutiny, receiving both support and criticism from all market sectors. But what does it mean for banks and their customers?

Fraud has become a growing concern for the UK banking system and its consumers. According to the ICAEW, the total value of UK fraud stood at £2.3bn in 2023, a 104% increase since 2022, with estimates that the evolution of AI will lead to even bigger challenges. As the IMF points out, greater digitalisation brings greater vulnerabilities, at a time when half of UK consumers are already “obsessed” with checking their banking apps and balances.

These concerns have contributed to the implementation of the PSR’s (Payment Systems Regulator) APP fraud mandate, which was implemented to reimburse the victims of APP fraud. APP fraud occurs when somebody is tricked into authorising a payment from their own bank account. Unlike more traditional fraud, such as payments made from a stolen bank card, APP fraud previously fell outside the scope of conventional fraud protection, as the transaction is technically “authorised” by the victim.

The £85,000 Debate: A controversial adjustment

The regulatory framework for the APP fraud mandate was initially introduced in May 2022. The maximum level of mandatory reimbursement was originally set at £415,000 per claim. The PSR significantly reduced the maximum reimbursement value to £85,000 when the mandate came into effect, however, causing widespread controversy.

According to the PSR, the updated cap will see over 99% of claims (by volume) being covered, with an October review highlighting just 18 instances of people being scammed for more than £415,000, and 411 instances of more than £85,000, from a total of over 250,000 cases throughout 2023. “Almost all high value scams are made up of multiple smaller transactions,” the PSR explains, “reducing the effectiveness of transaction limits as a tool to manage exposure.”

The reduced cap makes a big difference on multiple levels. For financial institutions and payment service providers (PSPs), the lower limit means they’re less exposed to high-value claims. The reduced exposure to unlimited high-value claims has the potential to lower compliance and operational costs, while the £85,000 cap aligns with the Financial Services Compensation Scheme (FSCS) threshold, creating broader consistency across financial redress schemes.

There are naturally downsides to the lower limit, with critics highlighting significant financial shortfalls for victims of high-value fraud. The lower cap may reduce public confidence in the financial system’s ability to protect against fraud, particularly for those handling large sums of money, while small businesses, many of which often deal with large transaction amounts, may find the cap insufficient to cover losses.

The impact on PSPs and their customers

With PSPs responsible for APP fraud reimbursement, institutions need to take the next step when it comes to fraud detection and prevention to minimise exposure to claims within the £85,000 cap. Customers of all types are likely to benefit from more robust security as a result.

The Financial Conduct Authority’s (FCA’s) recommendations include strengthening controls during onboarding, improving transaction monitoring to detect suspicious activity, and optimising reporting mechanisms to enable swift action. Such controls are largely in line with the PSR’s own recommendations, with the institution setting out a number of steps in its final policy statement in December 2023 to mitigate APP scam risks.

These include setting appropriate transaction limits, improving ‘know your customer’ controls, strengthening transaction-monitoring systems and stopping or freezing payments that PSPs consider to be suspicious for further investigation.

All these measures will invariably improve consumer experience, increasing customers’ confidence to transact online safely, as well as giving them peace of mind with quicker reimbursement in case things go awry.

Going beyond the APP fraud mandate

If the PSR’s mandate can steer financial institutions towards implementing more robust security practices, it can only be a good thing. It’s not the only tool that’s shaping the financial security landscape, however.

In October 2024, the UK government introduced new legislation granting banks enhanced powers to combat fraud. An optional £100 excess on fraud claims has been introduced to encourage customer caution and combat moral hazards, while the Treasury has strengthened prevention measures by handing out new powers to high street banks to delay and investigate payments suspected of being fraudulent by 3 days. The extended processing time for suspicious payments may lead to delays in legitimate transactions, making transparent communication and robust safeguards essential to maintain consumer trust.

Further collaborative efforts, such as Meta’s partnership with UK banks through the Fraud Intelligence Reciprocal Exchange (FIRE) program, can also aid the fight against fraud. Thanks to direct intelligence sharing between financial institutions and the world’s biggest social media platform, FIRE enhances the detection and removal of fraudulent accounts across platforms such as Facebook and Instagram, not only disrupting scam operations, but also fostering a safer digital environment for users. The early stages of the pilot have led to action against thousands of scammer-operated accounts, with approximately 20,000 accounts removed based on shared data.

Additionally, education and awareness are crucial measures to protect consumers against APP fraud. Several high street banks have upgraded their banking channels to share timely content about the signs of potential scams, with increased public awareness helping consumers identify and avoid fraudulent schemes.

Improvements in policing strategies are also significantly contributing to the mitigation of APP fraud. Specialized fraud units within police forces have enhanced the precision and efficiency of investigations. The City of London Police and the National Fraud Intelligence Bureau are upgrading the technology for Action Fraud, providing victims with a more accessible and customer-friendly service. Collaborative efforts among police, banks, and telecommunications firms, exemplified by the work of the Dedicated Card and Payment Crime Unit (DCPCU), have enabled the swift exchange of information, facilitating the prompt apprehension of scammers.

How AI is expected to change the landscape

The coming months will be critical in assessing these changes, as institutions, businesses and the UK government work together to shape security against fraud in the ever-changing world of finance.

While fraud is a terrifyingly big business, it’s only likely to increase with the evolution of AI, making it even more critical that such changes are effective. According to PwC, “There is a real risk that hard-fought improvements in fraud defences could be undone if the right measures are not put in place to defend against fraud in an AI-enabled world.”

Chatbots can be used as part of phishing scams, for example, and AI systems can already read text and reproduce sampled voices, making it possible to send messages from “relatives” whose voices have been spoofed in a similar manner to deepfakes.

Along with other innovations, tools and collaborations, however, the APP fraud mandate, UK legislation and FIRE can all contribute towards redressing such technological advances. Together, this can give financial institutions a much-needed boost in the fight against fraud, providing a more secure future for customers.

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Business

After the tax deadline: Next steps for accountancy firms

Source: Finance Derivative

By Cameron Ford, UK General Manager of Silverfin

For many accountancy firms, tax season has ended. Now, leaders have a chance to reflect on their firm’s performance, how their people are feeling after the busiest period of the year, and consider how they might optimise people, processes and technology for the future.

As a former CFO with experience in senior accountancy roles across multiple firms, I know first-hand the challenges the year-end crunch presents. The intense weeks and months leading up to HMRC deadlines put immense pressure on infrastructure, exposing the limitations of legacy systems and the bottlenecks caused by manual workflows.

The post-busy-season presents a valuable opportunity to reassess and prepare for the next one. It’s also a time for firms to reflect on evolving client needs and proactively take action to deliver improved future outcomes. Firms should also evaluate whether their current technology is alleviating pressure during peak periods – or adding to the strain.

The risk of inaction

We are living in an era of profound technological change and fast-paced innovation. Firms that fail to evolve with the times will be left behind as more flexible and adaptive competitors race forward. The risk for slow movers is not just reduced competitiveness – its industry consolidation locking them out altogether.

For today’s leaders, the choice is no longer whether to transform – but which technologies to adopt. Accountancy firms now have access to an extensive array of powerful solutions. Data analytics tools are delivering insights to power better decision-making. Automation is streamlining workflows, reducing errors and freeing up valuable time to focus on strategic tasks. And the demand for fast, secure access to accurate and timely data is only growing.

Yet, as accountancy technology matures, new challenges are emerging that extend beyond traditional tech solutions as regulators become increasingly zealous. In the UK alone, two-thirds of current business taxes were introduced in the past decade, according to Thomson Reuters. That’s 13 out of 19 business taxes. The sheer pace of regulatory innovation demonstrates the need for accountancy firms to be agile and capable of transforming at speed, as their clients face an ever evolving and intricate tax landscape.

Future success depends on equipping firms with the ability to meet the demands of both customers and regulators, striking a balance that not only satisfies current expectations but also lays the groundwork for evolving future requirements.

Growing complexity

Corporate tax management illustrates the complex nature of today’s accounting landscape. Changing regulations, new post-Brexit tax requirements and global initiatives – such as the Organisation for Economic Cooperation and Development’s (OECD) Pillar Two, which introduces a global minimum corporate tax rate of 15% – are placing unprecedented demands on tax and accounting professionals.

The most effective response is to adopt specialised software that is designed to manage compliance and evolving regulatory requirements. While adopting new technology can seem daunting, it should be seen as an opportunity, not an obstacle. Yes, there may be initial friction and deployment challenges during the early stages of transformation, but these are temporary. As firms adapt to new tools and workflows, they unlock significant benefits – including streamlined processes, improved accuracy, and the ability to stay ahead of future changes in an increasingly dynamic tax environment.

AI transformation 

AI is rapidly emerging as a game-changing technology for many industries, including accountancy. It’s true value lies in acting as a partner and collaborator, taking on the heavy lifting of repetitive manual tasks, freeing up valuable hours so accountants have more time to focus on building stronger client relationships.

To be effective, AI relies on accurate real-time financial data that is easily accessed and stored in a standardised format. But before even considering training a model, firms must solve their lingering data issues. With multiple bookkeeping and large volumes of inconsistent and duplicated data, firms often struggle to extract meaningful insights.

Resolving these issues requires integrating data from various bookkeeping systems using techniques such as cloud syncs and AI enrichment tools. Data must also be stored in a unified format, properly catalogued and free from duplication to maximise its value.

By deploying AI on a foundation of clean, reliable and up-to-date data, accountancy firms can enhance their performance during peak seasons and better manage the pressures of increased demand. Plus, digital transformation and the deployment of advanced accountancy and compliance software also put firms in a stronger position to respond to new complexities and challenges that will inevitably emerge in this dynamic marketplace.

Peak season may be over, but now it’s time to plan for the next one, anticipating customer needs and proactively adapting to shifting demands.

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Business

Future-proofing financial services investment

Source: Finance Derivative

Adrian Ah-Chin-Kow, Global Commercial Director at leading software escrow company, Escode, discusses how the financial services sector can prepare for the increasing investment ahead of the government’s industrial growth strategy, Invest 2035, ensuring resilience against technological risks.

The UK’s proposed Invest 2035 strategy sets a bold vision: to elevate the UK as a global leader in high-growth sectors. Financial services are at the heart of this roadmap, tasked with driving innovation, sustainability, and competitiveness. But as we look towards the future, it’s critical that the sector strikes a careful balance between embracing strategic investments and maintaining operational resilience in the face of an increasingly complex technological risk landscape.

The digital transformation currently underway in financial services is set to accelerate even further as organisations adopt new technologies like artificial intelligence, blockchain, and cloud computing. These innovations hold immense potential for growth and efficiency, but they also introduce new layers of vulnerability. For financial services to thrive in this environment, firms need to ensure their technology infrastructure is resilient, reliable, and capable of withstanding disruption.

Growing risks in a digital-first world
As government and industry push forward with initiatives to digitise the financial services ecosystem, the sector is becoming more dependent on technology than ever before. With this reliance comes the inevitable rise of new risks—risks that can threaten operations, customer trust, and even the stability of markets.

We’ve seen first-hand the consequences of technology disruptions in this space. When key software providers experience outages or security breaches, the ripple effect can be significant, disrupting not just the companies involved but entire networks of financial institutions that depend on those systems. The impacts of such disruptions, particularly in a sector where reliability is paramount, can extend beyond the immediate downtime, eroding investor confidence and creating long-term reputational damage.

In a world that is becoming more interconnected by the day, it’s crucial that financial services organisations are prepared for these challenges. Protecting against technology failures and ensuring business continuity must be top priorities for any firm that wants to remain competitive in the years to come.

Operational resilience: The foundation of future growth
The ability to withstand and recover from disruption is at the core of what will define successful financial services firms in the future. Operational resilience is no longer just a regulatory requirement—it’s a business imperative that builds trust with investors, customers, and stakeholders. The strategies needed to build this resilience are varied, but there are a few critical components every organisation should consider.

  • Software Escrow: As financial institutions increasingly depend on digital tools, software escrow becomes a fundamental safeguard. We know how crucial escrow agreements are for protecting access to essential tools. If a provider fails or encounters insolvency, escrow ensures that critical software and intellectual property (IP) are held securely by a third party, ready to be released to the firm. In a sector where continuous access to technology is crucial, this arrangement offers peace of mind, ensuring core operations are protected from unexpected interruptions.
  • Stress-testing and Business Continuity: Regular stress-testing and comprehensive business continuity plans are essential components of any resilience strategy. By simulating disruptions, firms can identify weaknesses in their operations and put in place measures to address them. Continuity planning ensures that businesses can continue to operate, even under extreme circumstances, helping to mitigate the impacts of unanticipated events and minimise disruption to clients and markets.
  • Collaborative Resilience Standards: The interconnectivity of today’s financial ecosystem demands industry-wide standards. We’ve seen collaboration across both the private sector and with government initiatives become increasingly important. The UK’s Invest 2035 strategy offers an excellent foundation for fostering these partnerships, helping to establish resilience as a shared priority across the sector. We’re already seeing frameworks like the EU’s Digital Operational Resilience Act (DORA) lead the way in embedding resilience into the financial services supply chain. This kind of regulatory guidance helps institutions understand how to manage risks effectively, reducing overreliance on third-party providers and ensuring that firms can respond quickly to disruptions.

Collectively, these strategies reinforce the importance of being proactive rather than reactive when it comes to risk management. Operational resilience isn’t just about surviving the next crisis—it’s about building a foundation for long-term stability and growth in a rapidly changing environment.

Resilience as the key to securing Invest 2035
As we move towards Invest 2035, operational resilience will be the cornerstone of success. The financial services sector plays a pivotal role in driving economic growth and innovation, and its ability to adapt and respond to disruption will be key to maintaining the UK’s competitiveness on the global stage.

Embracing proactive resilience measures is the key to future success. By incorporating solutions like software escrow, stress-testing, and government-backed collaboration into their operational strategies, financial institutions can secure the UK’s position as a competitive, reliable investment hub.

Looking to the future, the ability to navigate these risks while maintaining operational integrity will determine whether financial services can continue to be the engine of economic growth in the UK. With the right safeguards in place, the sector can not only meet the goals of Invest 2035 but also build a reputation as a safe and dependable destination for global investment.

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