Tech presents new challenges for businesses - including regulation, growing competition from start-ups and ethical issues raised by artificial intelligence. It affects all aspects of the law.
Our experts provide joined-up advice on the impact of technology on antitrust and data; M&A and investments; intellectual property and litigation; AI and fintech; cyber and regulatory investigations.
Artificial intelligence is being extensively used across sectors and around the world, but without comprehensive legal frameworks and appropriate governance and compliance programmes in place, regulators are starting to fill the gap.
One area of focus for regulators and a problem for organisations has been the need for greater transparency and "explainability" for artificial intelligence (AI) systems. As a result, a range of academic, industry and government initiatives have sought to give practical context to new legal requirements and help organisations to counter accusations that AI systems are opaque or act as a "black box". The latest of these, is guidance from Project explAIn, a collaboration between the UK Information Commissioner's Office (ICO) and the Alan Turing Institute, published in May 2020 following an industry consultation. This aims to provide practical advice on explaining decisions made by AI systems, in a manner that meets legal requirements, as well as technical and governance best practice. Here we consider some of the existing legal requirements for explainability in the UK and explore the key takeaways from this guidance. Read more about Moving Forward on Explainable AI.
Artificial intelligence (AI) creates huge opportunities for businesses globally across all sectors. However, the use of AI also brings the potential for significant legal, ethical and reputational exposure. Recently we have seen global regulators grappling with these risks, with the announcement of a vast number of legal developments, including the publication of legislation and ethical guidelines. Civil courts have been active too, with several recent judgments addressing liability for AI.
In this review we consider some of the emerging global themes and highlight recent international developments. We also explore what 2020 is likely to mean for the global regulatory outlook and the steps businesses should be taking now to minimise the risks arising from their use of AI. Read more about Artificial Intelligence Risk and what 2020 holds.
Protectionism and a looming tech war between China and the West may dominate current headlines, but there is an urgent need to work together to develop global frameworks around innovation and the safety of technology, Jeroen Ouwehand, Global Senior Partner, said at a conference on China’s economic future hosted by Chatham House. In this extract from his speech, Ouwehand discusses digital borders, data flows and ethics and artificial intelligence. Read more about China, tech and the need for global standards.
The use of big data and artificial intelligence (AI) is giving rise to new and evolving market misconduct risks that firms need to understand. Julia Hoggett, Director of Market Oversight at the Financial Conduct Authority (FCA), recently gave a speech to the Association for Financial Markets in Europe (AFME) highlighting some of these risks. In this briefing we consider insider dealing risk arising when big data constitutes inside information and the manipulation risk arising from AI and machine learning. Read more about big data and artificial intelligence - evolving market misconduct risks.
This article, which was first published by the International Financial Law Review, highlights the legal, ethical and reputational risk that UK financial institutions face when using AI and suggests the steps that they should take now to minimise them. Read more about AI and risk for financial institutions.
Blockchain has the potential to alter the global financial system but has implications for sanctions regimes. Read more about Blockchain, trade finance and sanctions issues.
Blockchain is the technology that underpins the digital currency Bitcoin – but it has far wider applications and opens up new possibilities in financial services, the public sector and other areas. Read more about Blockchain - what it is and why it's important.
Data and Privacy
Data breaches are an increasing focus for English litigation, and collective actions are on the rise as public concern grows about how our data is used. All companies – not just big tech firms – use data, and therefore risk being faced with these claims. Businesses with deep pockets are the most likely to be sued. In this briefing, the first in a series, we explore the potential claims that firms may face following a data breach. Read more about data collective actions - the costs of losing control.
Protectionism and a looming tech war between China and the West may dominate current headlines, but there is an urgent need to work together to develop global frameworks around innovation and the safety of technology, Jeroen Ouwehand, Global Senior Partner, said at a conference on China’s economic future hosted by Chatham House. In this extract from his speech, Ouwehand discusses digital borders, data flows and ethics and artificial intelligence. Read more about China, Tech and the need for global standards.
This briefing provides an overview of the Smart Data consultation and explains how businesses can effectively engage with the Government to share their views on the topic. Read more about Smart Data: UK Government consults on data sharing in regulated markets.
Tech stories were never far from the headlines in 2018. With data privacy taking centre stage, the Cambridge Analytica-Facebook scandal prompted regulatory investigations in Europe and the US. The EU GDPR came into effect, sparking a deluge of compliance emails, and major organisations continued to suffer massive cybersecurity breaches. Technology giants in Europe and elsewhere remained under the spotlight, as fines of over EUR4 billion were levied.
We consider some of the key technology disputes and enforcement risks which we expect to be on the global agenda in 2019. Read more about the Top 8 tech disputes and enforcement risks for 2019.
Why do you sometimes have to click those diagrams before you can log into a social media platform? Because the website wants to know you are a human – and not a bot looking to scratch its surface with a view to obtaining valuable data (a "data scraper"). Data scrapers extract, aggregate and combine data from various sources. Scraped data is then generally stored on a local system and used for different purposes such as recruitment, sentiment analysis, assessing credit risk, identifying trends, marketing and sales. Read more about legal issues arising from data scraping.
This report considers how adoption of a global stablecoin or a retail CBDC would look in practice, and explore the legal structures that might be employed. Read more about Central Bank Digital Currencies and Stablecoins – how might they work in practice?
The UK Jurisdiction Taskforce of the LawTech Delivery Panel has confirmed that cryptoassets are property which can be owned and smart contracts can be legally enforecable. Read more about crypto certainty under English law.
Facebook’s proposed stablecoin, Libra, is dominating the headlines. However, growing interest means increased regulatory and political scrutiny. As digital assets transcend national borders, what does this mean for those interested in issuing or participating in a stablecoin project? Read more about Stablecoins: A snapshot of global regulation.
Stablecoin - a global overview of regulatory requirements in Asia Pacific, Europe, the UAE and the US
Facebook’s proposed stablecoin, Libra, is dominating the headlines. However, growing interest means increased regulatory and political scrutiny around the globe. As digital assets transcend national borders, what does this mean for those interested in issuing or participating in a stablecoin project? What are the regulatory questions and other challenges that need to be considered? We take a look at the global picture in this comprehensive analysis. Read more about Stablecoin - a global overview of regulatory requirements in Asia Pacific, Europe, the UAE and the US
A deliberate design feature of Bitcoin is that it enables users to buy or sell anything without revealing their identity. Yet, paradoxically, all Bitcoin transactions are stored publicly and permanently on blockchain. Now, as seen in recent cases, enterprising US prosecutors and private plaintiffs’ lawyers are using software called blockchain explorer to crack Bitcoin’s anonymity. The US Treasury Financial Crimes Enforcement Network (FinCEN) also appears to suggest that financial institutions and crypto businesses should consider how explorer software could help them meet their own anti-money laundering (AML) and sanctions obligations. Read more on Busting Bitcoin's anonymity - the implications for financial institutions.
The essence of Libra is that Facebook hopes consumers across the world will spend money in a new cryptocurrency. Its value will track a basket of fiat currencies, meaning that the value of a Libra against a particular fiat currency will inevitably fluctuate. That creates a problem for consumers: each time they transact, they’ll be making a capital gain or loss. In most countries gains will be taxable, meaning consumers will have to file a detailed tax return showing all their transactions and the exchange rate at the time, and pay any tax due. This seems to us to be a significant barrier to wide adoption. Read more about whether unexpected tax complications will scare off Facebook's Libra currency users?
Facebook's global digital currency Libra, backed by some of the biggest names in financial services and tech including Visa, Mastercard, Uber and Spotify, is to be launched in 2020. We look at the regulatory, legal, practical and political challenges of getting this kind of project off the ground. Read more about the exciting but challenging road ahead for Facebook's Libra.
Crypto considerations for fund managers: Private funds investing in digital assets have exploded in popularity - but pose unique legal risks
Private funds investing in blockchain-based digital assets have exploded in popularity in recent years. According to the consultancy Crypto Fund Research, there are over 700 such funds worldwide, up from a mere handful a few years ago, with assets under management exceeding $10 billion. Read more about Crypto considerations for fund managers.
This article explores what DeFi is, review the recent SEC and CFTC actions against Abra, explore some of the red flags that DeFi platforms should be aware of and discuss steps that platforms can take to avoid inadvertently violating US regulatory requirements. Read more about As DEFI Matures, US Financial Regulatory Questions Loom Large.
Technology’s transformation of financial services will rapidly continue over the next decade. Following the bold predictions we made last year, we predict five developments for fintech in 2020. Read more about Fintech in 2020: five trends to watch.
The payments industry is undergoing significant changes, driven by technological innovation, new regulations and the broader macro-economic environment. We identify some key trends that are emerging.
Digital and card payments are on the rise as use of cash declines. Recent years have also seen a proliferation of fintechs offering innovative payment services and solutions. At the same time, there has been a focus on the role of competition in payment services, with Open Banking initiatives requiring payment account providers to provide account and data access to new market players. Whilst the initial focus has been on retail payments, opportunities for similar innovation in other segments of the payments market, such as with SME and wholesale clients are rapidly emerging. Read more about Payments Industry Trends in a Hyperconnected World.
A vision for the future of the UK financial system: the van Steenis report – how financial services might evolve in response to technological, social and environmental changes
The Bank of England published a report in June 2019 on the future of the UK financial system and what that means for the Bank. The report, authored by Huw van Steenis, examines how financial services might evolve over the medium term in response to technological, social and environmental changes and how the Bank should respond. It sets out an ambitious vision for the future of the UK financial system and the role of the Bank as a leader of global regulatory standards supporting a global economy.
The van Steenis report identifies wide-ranging drivers of change that are shaping the UK economy, from big data and cyber-crime to climate change and an ageing population. It considers the role of finance in this changing environment and how a responsible and resilient finance industry can serve and support these changes. Finally, the report sets out recommendations for the Bank of England, identifying areas where it could take action to enable innovation, empower competition and build resilience in the financial system. Read more about the van Steenis report.
Technological innovation, the rise of fintech firms and the entry of big tech companies, such as Facebook and Amazon into financial services, are all driving the shift towards a digital economy.
As new financial products and services emerge, policy makers and regulators have to keep up with the pace of change and address new risks. At an international level, whilst they recognise the need for a coordinated response to these developments, so far, this has been largely limited to addressing money laundering and terrorist financing risks. Read more about Fintech: International trends and regulatory responses.
Clifford Chance experts take a bird’s eye view of fintech developments across EMEA and how regulators are responding. Read more about Taming the 'Wild West': fintech developments across EMEA.
In this report, which updates the report we published in October 2017, we highlight key trends and developments in financial technology (fintech) across 10 different MENA jurisdictions. Read more about the Fintech developments across MENA.
Israel, with its expertise in technology such as big data analytics, artificial intelligence, blockchain and computer vision, has established itself as a global centre for fintech. Its relatively small size, the large number of startups and its reputation for entrepreneurship mean that it is an excellent testing ground for innovation. Israeli regulators, including the Bank of Israel and the Commissioner of the Capital Markets, Insurance and Savings (CMIS), have expressed the view that technology is key, and a number of regulatory changes are coming into effect or being explored to further boost the market. Here we describe the latest regulatory developments and what we are likely to see next. Read more about Fintech in Israel.
The recently published Law Commission's report Electronic execution of documents (the Report) confirms that the existing English law on execution of documents allows for the use of electronic signatures and no change in law is needed. The publication of the Report is welcome as interest in electronic signatures has grown over recent years, particularly because, as our daily environment becomes increasingly digitised, there is an expectation that putting pen to paper should not be necessary to sign legally binding documents. It remains to be seen whether the Report, which endorses the conclusions of the Law Society 2016 Practice Note on the topic, will encourage more businesses, governments and institutions to use electronic signatures on a widespread basis. This briefing examines the Report and its recommendations, highlights other factors that must be considered when using electronic signatures and looks in more detail at electronic signing (or e-signing) platforms. Read more about the Law Commission's report on electronic signatures.
Smart contracts – electronic contracts performed automatically by computer networks – are one of the most promising areas of insuretech. While the technology is still maturing, businesses across sectors are investing in developing commercially viable smart contract implementations – and insurance is no exception. Read more about Smart insurance contracts.
This publication provides help for those seeking to promote or facilitate the use of smart contracts. Read more about Smart contracts: legal framework and proposed guidelines for lawmakers.