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A blog on financial markets and their regulation
In recent months, a significant amount of money has been raised using smart contracts and initial coin offerings. In May 2016, The DAO raised about $150 million with an “objective to provide a new decentralized business model for organizing both commercial and non-profit enterprises”. It did not have a formal organizational structure or legal entity and consisted only of open source computer code. A bug in this code allowed a hacker to siphon off about $50 million of this money, but this was reversed by a hard fork of the Ethereum blockchain (see here for the details). A few days ago, Bancor raised even more money than the DAO amidst criticism that its business model is seriously flawed.
These smart contracts create business enterprises without creating any legal entity. You cannot sue a piece of code, nor send it to jail, but when this piece of code creates a self enforcing contract, it becomes an enterprise. This seems to create a challenge for the legal system.
It was in this context that I read “Enterprise without Entities” by Andrew Verstein (Michigan Law Review, 2017).
This Article challenges conventional wisdom by showing that vast enterprises – with millions of customers paying trillions of dollars – often operate without any meaningful use of an entity.
This Article introduces the reciprocal exchange, a type of insurance company that operates without any meaningful use of a legal entity. Instead of obtaining their insurance from a common nexus of contract, customers directly insure one another through a web of countless bilateral agreements. While often overlooked or conflated with mutual insurance companies, reciprocal exchanges include some of America’s largest and best known insurance enterprises.
This Article explores how it is possible to run an international conglomerate with essentially no recourse to organizational law as it is normally conceived.
The whole paper is worth reading for the wealth of detail and careful legal analysis. It tells us that enterprise without entities is not some radical new innovation made possible by smart contracts, but is something that has been successfully practised since the early twentieth century.
More importantly, it also tells us that the challenge in making smart contracts work is not going to be legal. The real challenge is the more mundane and much harder task of writing software without nasty bugs.