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Smart contracts that violate the Commodity Exchange Act: which parties are liable?

Nikiforos Mathews (Orrick, Herrington and Sutcliffe LLP, New York, NY, USA)
Jonas Robison (Orrick, Herrington and Sutcliffe LLP, New York, NY, USA)

Journal of Investment Compliance

ISSN: 1528-5812

Article publication date: 8 October 2019

Issue publication date: 16 October 2019

Abstract

Purpose

The US Commodity Futures Trading Commission (CFTC), to date, has not directly addressed how liability for Commodity Exchange Act (CEA) violations involving blockchain or distributed ledger technology should be allocated among the various parties involved in the distributed ledger network, such as the network itself, persons running consensus nodes, developers building applications on the platform, and businesses and end users using such applications. This article discusses recent statements by CFTC Commissioner Brian Quintenz regarding this issue and the approach that the CFTC may take going forward.

Design/methodology/approach

This article examines the allocation of liability in the context of smart contracts that may violate the CEA. The article discusses how the CFTC, despite its significant focus in recent years on virtual currency and blockchain, has not addressed the issue of liability allocation directly. Recent remarks by Commissioner Quintenz may shed light on the CFTC’s future approach.

Findings

This article finds that liability allocation questions may become increasingly pressing as smart contracts that potentially violate the CEA proliferate, possibly exposing a broad range of parties involved in a distributed ledger network to liability. To the extent that Commissioner Quintenz’s recent remarks are indicative, the CFTC ultimately may adopt a foreseeability standard in determining liability.

Practical implications

Applications of distributed ledger technology (DLT) are ever-expanding, continually posing novel CFTC regulatory issues. This is especially the case with respect to smart contracts that may be subject to CFTC jurisdiction. Parties involved in such applications should be mindful of potential liability.

Originality/value

Practical guidance from experienced finance and derivatives lawyers with strong CFTC expertise.

Keywords

Citation

Mathews, N. and Robison, J. (2019), "Smart contracts that violate the Commodity Exchange Act: which parties are liable?", Journal of Investment Compliance, Vol. 20 No. 3, pp. 28-31. https://doi.org/10.1108/JOIC-06-2019-0037

Publisher

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Emerald Publishing Limited

Copyright © 2019, Orrick, Herrington & Sutcliffe LLP