Smart Contract This! An Assessment of the Contractual Landscape and the Herculean Challenges it Currently Presents for “Self-executing” Contracts

  • Rory UnsworthEmail author
Part of the Perspectives in Law, Business and Innovation book series (PLBI)


The widespread use of “self-executing” contracts is now only a question of time. For certain standard contract types with simple and well understood provisions, little international variation, no intermediation and short execution periods, that time is now as the change is already happening (examples are digital rights management and various banking applications.). It is the other more complex, more entrenched, and less agile sectors of the global economy which are the focus of this paper. Here there will be hurdles to overcome and more time needed for implementation—it will be a difficult task. The arrival of this new technology presents important questions about the future of contracting, as well as about traditional legal practice within both legal departments and law firms, calling for a new quality of cooperation between business and their lawyers. Given that the natural reaction to change is resistance, that companies are having ever-greater challenges navigating international regulation and that as a result legal department within companies tend to exert a strong influence out of line with the number of employees they include, the power of institutional resistance to delay adoption of the change will be considerable. This chapter will seek to add a dose of realism to the techno-optimists in the late adolescence of the 21st century for whom the change is so far advanced it is practically finished. In this chapter it is largely assumed that readers understand how Distributed Ledger Technology works, and the principal focus will be on the contractual challenges standing in the way of the implementation of “self-executing contracts,” to which it will also offer some solutions. The original idea contained in this chapter is to embark on a well-planned Digital Contract Optimization journey, supported by new technologies, as a means to manage various risks associated with algorithmically driven processes. This chapter will address the question of the institutional legal mindset as a potential delaying factor and will present a Darwinian argument to explain that change is inevitable and will be radical in terms of the new demands on lawyers.


Smart contracts Law Legal practice Technology 



This chapter is dedicated to the memory of the late Thomas Tschopp, an innovative computer scientist who helped me work through many of the challenges encountered during my first Digital Contract Optimization. Thanks to Helena Haapio for honoring me with the commission to write this—her trust in others and her collaborative spirit make her a true Flexpert; to Müge Cöteli, who kindly proof-read the manuscript but, more importantly, broadened and modernized my legal horizons, introduced me to this theme and stimulated me with creative ideas and encouragement during the writing process; to Paul Meeusen, Gerhard Lohmann and John Carolin, CEO, Chairman and CFO respectively of B3i for allowing me privileged access to a pioneering DLT Consortium in a complex segment, the former providing a very close reading of this chapter, and some telling insights, examples and clarifications; to Tim Cummins and Sally Hughes and their team at the IACCM for inspiring me over the years with their rare ability to nourish thousands of minds, starting with just a handful of bread and a basket of fish.


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Copyright information

© Springer Nature Singapore Pte Ltd. 2019

Authors and Affiliations

  1. 1.Swiss Re, Head Contracts Centre and Smart Contracts CounselZurichSwitzerland

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