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Blockchain: Strategic Thinking And Sustainable Competitive Advantage

How will blockchain impact the “traditional” practice of law?

If you represent clients in blockchain-affected industries (and I’m hard-pressed to name an industry that isn’t), you become an even greater resource as a trusted advisor by understanding blockchain within the context of your client’s business.

Being so nascent, blockchain presents an incredible (potentially unique) opportunity for lawyers to position themselves as trusted strategic advisors to clients navigating the myriad legal, regulatory, and logistical webs surrounding the technology and its applications. I suggest that a lawyer serving the music industry, for example, make themselves an invaluable part of a client’s core team if they understand blockchain, how it affects their client, and how their client can capitalize on the technology.

Why? Because the lawyer as a trusted advisor is situated differently than others most likely to have blockchain savvy (e.g. IT advisors). Yes, IT will know the technology. But only the lawyer can extrapolate from the technological understanding of what this really means for a client operating in a law- and regulation-bound environment.

Here are a couple of examples of how lawyers can become trusted blockchain advisors to clients, within the context of an existing practice: Let’s look at,

Finance

The shift to blockchain supported applications is happening fastest in the financial industry, which operates as a de facto proof of concept for blockchain in business generally. Blockchain has many finance use cases, including transforming regulatory oversight of transactions by giving regulators constant and real-time access to audit and monitor industry participants. Another use already happening and likely to proliferate: stock trading on blockchain platforms.

With so many possible applications in development, finance industry clients are scrambling now to understand (a) how blockchain will impact the very structure of their businesses and (b) how to capitalize on it. Enter the blockchain-savvy lawyer, who is best situated to help clients answer these questions.

Those who are prepared for this transformation will be invaluable trusted advisors to these clients.

The Smart Contract Firm

The smart contract firm represents not only a new practice model but also a new business model. We all know the billable hour is (almost) dead, but what comes next? Lawyers will have to figure out payment models for the smart contract firm — taking into account not only the value of legal expertise but the technical value as well as related services such as hosting of dynamic transactions on a blockchain platform.

It is worthy of note that contracts on a blockchain look very different than contracts on paper. There is ongoing discussion as to whether they are contracts at all and some prefer terms like “dynamic transaction,” which may, in fact, be better descriptors. A blockchain-supported transaction may start from a series of clauses drafted according to traditional contract doctrine, but as these clauses move onto a blockchain platform and become self-executing, doctrine becomes obscured (e.g. how to terminate a self-executing smart contract transaction on the grounds of unconscionability?). Expect smart contract (or dynamic transaction) doctrine to evolve and look (potentially) very different from the doctrine we now know. This all the more poignant and potentially consequential as we consider integrating AI, robotics, 3D printing and other incipient technologies with blockchain solutions, such as, but by not limited to smart contracts or the law firm.

In the interest of time and space, I limit my discussion of the law firm to smart contracts but other areas ready for blockchain disruption include Smart Contract Mediation, Smart Titles management, Conveyancing, Smart Deeds, Smart Policy Advisory, Smart Corporation’s management and Smart Taxation to name only some of the more obvious ones. Obvious because they are characterised by 4 conducive elements, that is they are:

  1. Mass transaction based
  2. Multiparty
  3. Decentralised
  4. Secure exchanges of data.

The Smart Contract Mediator

Credit goes to Don Tapscott, author of Blockchain Revolution, for coining the phrase “smart contract mediator” (“SCM”). Due to the self-enforcing nature of smart contracts, the nexus of disputes in transactions potentially will shift to the stage of dynamic execution. Lawyers with deep blockchain knowledge can act as mediators in this process, helping parties to navigate the smart contract process.

The SCM practice niche exists independently from the smart contract law firm described above. While the SCM may participate in creating smart contracts (in a smart contract firm), the role can focus more on resolving disputes and general legal management of the transaction during the contract execution phase rather than the front-end work of drafting.

A smart contract looks and acts very different from a “static” contract and understanding distributed ledger technology is critical to managing this process for clients. This is the smart contract mediator’s unique value proposition.

Conclusion: The Future of Blockchain Is Now

The above discussion blockchain’s impact on existing and new practice areas is cursory at best and Corporate lawyers should be learning about blockchain-based decentralized autonomous organizations, and how these may replace traditional business structures. Those with a criminal law practice should be thinking about how “evidence” located in a blockchain impacts a case — for example, what does this mean for application of the third-party and other evidential doctrines? These are but a few of the areas of impact and they demonstrate that almost every area of law will be affected by blockchain as it rolls out.

It is likely, that if a law firm has not started thinking about how to redefine its value proposition in the age of blockchain, it is well past time to do so! The law firm that ignores this business imperative does so at the risk of becoming an anachronism at best, and, at worst, potentially irrelevant. But, this still only constitutes responsive thinking and requirement.

Entrepreneurial Prosponse to Blockchain

A Dutch example of prosponsive thinking, creating a new blockchain business and potentially a new industry is seen in a real-time example that is shared publicly for the first time here. A colleague of mine in the Netherlands has recently become a blockchain entrepreneur having established a company that exemplifies and is built on prosponsive thinking.

Interestingly, the enterprise fills a perceived gap in decision-making and problem-solving and by implication learning for larger corporations. The gap that was recognised by the founder was that ‘no longer do experts want to be employed by companies on a full-time basis’, certainly much less so than in previous generations. They desire more flexibility and greater freedom and independence than is often provided when working inside a corporation. Working outside the bounded rationality and limits of the corporation affords them the ability to set their own direction and pursue their own interests, setting their own agenda, rather than being directed by the corporation with its drawbacks such as an already set agenda, hierarchy, and bureaucracy.

A second gap recognised was that corporations operating in the rapidly changing and uncertain environment of today and the future require quick and timely solutions to more and more complex and numerous problems. The founder of Stocastic envisaged that blockchain could provide a potential solution to both the above problem-sets, satisfying the desires and requirements of the two different groups – the Experts and the Organisations requiring solutions to complex problems.

As Albert Einstein said, “you can’t truly solve a problem in the same context as that in which problem arose”. So, you need different perspectives from which to view the problem that also comes from a different context. However, it is naturally difficult to find such a perspective in the context of the organization in which the problem exists. That’s why Stocastic uses the internet, more specifically blockchain, as a platform for aggregating expertise from a wide cross-section of potentially interested experts rather than sourcing solutions from within, using consultancies who may access only approach the problem from within their own context and may use only a finite number of experts who may or may not deliver the best problem and solution definitions.

In process terms, client organizations proffer complex problems confronting them. Experts access the problems via the internet and bring numerous perspective to bear on the issue. They may then write proposals (problem definitions from different perspectives) related to this problem; and the client-organization may use one, or more, of these problem definition proposals. When a proposal is used the expert is paid related to the impact this proposal had. Through further rounds of definition, problems are refined, solution concepts are built and ultimately operationalized. Participant-experts will be paid related to the impact that their contribution delivered.  The personal profile, knowledge-contributions, impact, ethical behavior, the way they cooperate, the money they earn, all is secured and (partly, see the latest law on privacy in Europe) transparent in the blockchain.

This model demonstrates quintessentially the way in which thinking prosponsively about blockchain may create a new business, a new service and potentially a new industry thereby developing sustainable competitive advantage for itself and its clients via learnings driven by Blockchain. This is not the only avenue for prosponsivity with respect to blockchain by any means, but it exemplifies the myriad ways in which block chain may be harnessed to create change and add value well beyond the mere replacement of traditional functions by the decentralised ledger.

From the two case studies described, the benefits of, and requirement to adapt to, Blockchain are clear, as are the risks of ignoring blockchain, but, arguably more importantly we see the differences and benefits of both responsive and prosponsive thinking when it comes to this revolutionary technology.

Stephen Pitt-Walker
Stephen Pitt-Walkerhttps://www.smiknowledge.com/Executive%20Education.php
STEPHEN has more than 25 years professional experience in strategic advisory, management consulting and complex strategic outsourcing acquisition integration management across multiple industry sectors. He has consulted independently since 2009. He is currently the chief executive of Integrated Strategy Solutions (ISS) – a strategy education and advisory firm; Founder of the International Strategy Collegium (ISC) - a ‘Think Tank’ for the interdisciplinary development of strategy – and a group of the same name on Linked In; and is global partner, leading the Strategy Discipline, at the Business Insights Group. Prior to this he was Vice President and regional Financial Services practice lead at Gartner Consulting (Asia-Pacific). Stephen has substantial international business and management experience having lived and worked in East Asia, the UK, Europe and the United States (holding global and multi-geography responsibility in a number of premium brand, multi-national corporations). Stephen is a former military officer, a graduate of Australia’s premier military academies and holds multiple postgraduate degrees and awards for outstanding academic achievement and teaching. He is a graduate (Certified Strategy Practitioner) and Fellow of the Strategic Management Institute (Australia), is a past Fellow of the Strategic Planning Society (London), and is a passionate life-long learner, educator and author. Stephen also has a long standing humanitarian interest (especially in the area of Human Rights under International Humanitarian Law in post conflict zones). He is the Founder and Director of the Global Human Rights, Not-for-Profit Organization, is an active volunteer International Human Rights advocate and International Relations researcher & analyst. His specialised areas of concern are the Middle East & Africa and East Asia.

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