Equity and Trusts in the Digital Economy

2020 Conference

  • Date9am to 5pm
    20 February 2020

  • WhereHerbert Smith Freehills
    480 Queen St
    Brisbane

  • Date$250,
    accredited for CPD

Join leading national and international experts to explore the legal risks, opportunities and protections surrounding modern digital transactions and blockchain technologies.

Although much of the modern digital space is subject to significant statutory regulation, equitable doctrines and remedies retain a significant role to play both as a source of protection for consumers and potentially also an area of unidentified legal risk for market participants.

The conference will be devoted to pursuing these broad themes, examining the interface between traditional equitable devices and remedies and contemporary and developing features of the digital economy, such as distributed ledgers, smart contracts and digital currencies.

Issues explored at the conference will include:

  • ways in which equity can help to maintain confidence in the security of the blockchain as  a reliable record of title to crypto-assets
  • the implications of automation in smart contracts for the sorts of remedy a party can obtain when they are breached
  • ways in which equity’s in personam jurisdiction can mitigate some of the otherwise potentially harsh consequences using blockchain technologies in property and intellectual property registration systems
  • ways in which traditional equitable principles can rise to the challenge of creating intermediated securities over dematerialised assets.
     

 

Who should attend?

The conference will be of interest to judges, legal practitioners, regulators and market participants, as well as to academics with research interests in the field of equity and digital technology.

Program

Purchase for Value in Equity and the “Re-alignment” of Transactions on a Crypto-asset Blockchain
Professor David Fox (Edinburgh University)

The blockchain provides a near-conclusive record of the transactions between participants who deal with crypto-assets on a distributed ledger system.  It is not, however, a conclusive record of the titles transferred by those transactions.  Transactions which appear complete on the system may turn out to be void or voidable in equity. This paper considers how the equitable doctrine of purchase for value without notice might operate in crypto-asset transactions.  If it operates at all, its effect would be to “re-align” the legal effect of past transactions with the recorded state of the blockchain. It would in this way restore participants’ confidence in the blockchain as a reliable record of title to crypto-assets.

David Fox bio 

Smart Contracts and Questions of Specific Performance
Professor Jeannie Marie Patterson (The University of Melbourne)

While much hype has surrounded smart contracts, largely due to their association with blockchain technologies, the essential distinguishing feature of such contracts is the automation of performance obligations. This means that the possibility of breach or repudiation cannot be eliminated including through coding errors or human vagaries, disagreement, change of mind or inability to perform. Interesting and unique questions about the availability of specific performance arise at this juncture. A request for specific performance assumes that performance has been in some way paused or rejected. How can that work in the context of a smart contract, which is programmed to run until completion of the transaction? The answer of course is that, despite the hype of fully self-executing contracts, the reality is that smart contracts will usually be encased in traditional, non-automated rights and obligations. The question then arises of the inferences that a court should draw from automation in considering whether specific performance is an appropriate remedy.  Should a court compel the parties to continue to perform to keep up, so to speak, with the performance of the smart contract? Or is automation treated merely as a technical aspect of performance rather than defining the charter of the contract. These kinds of questions challenge existing doctrine. They also underline the importance of design in both the coding of the automated aspects of performance and in the drafting to clarify the performance expectations of the parties when something goes wrong.

Jeannie Marie Patterson bio

Can Equity Tame the Blockchain?
Professor Kelvin Low (City University of Hong Kong)

The concept of a blockchain was pioneered by Satoshi Nakamoto in his white paper on bitcoin in the depths of the Great Recession of 2008. Public interest quickly progressed from bitcoin itself and other cryptocurrencies modelled upon it, or so-called altcoins, to the blockchain underlying such cryptocurrencies. In spite of skepticism expressed by some, blockchain technology has been proposed for use in a wide range of activities ranging from inter-bank transfers to land and intellectual property registries. One of the key features of the blockchain is its immutability. Although often misunderstood, blockchain immutability is an effective obstacle to common judicial remedies such as rectification. In the face of this challenge, does the law’s answer lie in equity’s jurisdiction in personam, itself often misunderstood in modern legal analysis? This paper studies the extent to which equity’s in personam jurisdiction can ameliorate the otherwise harsh consequences of blockchain immutability as well as the limitations of this jurisdiction.

Kelvin Low bio

Intermediated Securities and the First Principles of Trusts: A Case of Orthodoxy
Dr Nicholas Tiverios and Dr Michael Crawford (The University of New South Wales)

From mortgages and floating charges to asset securitisation and intermediated securities, equity has, for several hundred years, allowed people to raise credit and deal with assets/rights in ways not possible at common law. Given the inherently modular and distinctly “second order” nature of equity, our argument is that there is no analytical reason why equity will not be able to continue to allow parties to raise credit effectively and efficiently with either material or dematerialised “assets”. This paper will analyse the underlying analytical structure of intermediated equitable rights and the increasing ease and scale at which equity enables such rights to be created. The main thesis is that the law of trusts has not (for the most part) been unjustifiably distorted to meet commercial needs in the context of asset securitisation. On the contrary, the law of trusts provides the essential set of default rules on which transactional lawyers create intermediated securities. This argument is developed in three parts. The first part demonstrates that the creation of intermediated securities is entirely consistent and coherent with the best theorisation of equitable property rights. The second part demonstrates that the requirement that a trust corpus be certain does not prevent the ordinary creation and operation of intermediated securities over dematerialised assets. The third part of this paper critiques the reasoning in cases where an unprincipled outcome was reached to meet the perceived “commercial” needs of the parties in the context of trusts creating intermediated securities. Namely, cases where a valid trust has been found to exist where a trustee was free to deal with the securities that formed the trust corpus for its own benefit.

Nicholas Tiverios bio Michael Crawford bio

9-9.30am Registration and coffee
9.30-11am

Smart Contracts and Questions of Specific Performance
Professor Jeannie Marie Patterson (The University of Melbourne)

Paper and discussion

11-11.30am Break
11.30am-1pm 

Can Equity Tame the Blockchain?
Professor Kelvin Low (City University of Hong Kong)

Paper and discussion

1-1.30pm Light lunch
1.30-3pm

Intermediated Securities and the First Principles of Trusts: A Case of Orthodoxy
Dr Nicholas Tiverios and Dr Michael Crawford (The University of New South Wales)

Paper and discussion

3-3.15pm Break
3.15-4.45pm

Purchase for Value in Equity and the “Re-alignment” of Transactions on a Crypto-asset Blockchain
Professor David Fox (Edinburgh University)

Paper and discussion

4.45-5pm Summation

Continuing Professional Development

The series has been accredited for CPD purposes by the Queensland Law Society and the Bar Association of Queensland. One CPD point is earned for each completed hour of engagement in a CPD activity excluding breaks. Please ensure that you keep a record of your attendance at the conference.

Register by 6 February 2020

Tickets for this one-day conference cost $250 (inc GST) and include refreshments, morning tea, lunch, and afternoon tea.

Register and pay online

For event enquiries, please email events@law.uq.edu.au