Blockchain Solutions for Agency Problems in Corporate Governance

Abstract

Blockchain technology allows for decentralized networked governance that allows for the removal of internal and external monitoring mechanisms previously necessitated by agency problems in corporate governance. Blockchain technology creates formal immutable guarantees in agency relationships that build the trust needed to overcome the agency problems in corporate governance. It facilitates a substantial increase in efficiency in the agency relationship and lowers agency costs in orders of magnitude.
(An extended and fully cited version of this article is forthcoming)

Introduction

Agency theory (Jensen and Meckling (1976)) is still today the leading theory for governance conflicts between shareholders, corporate managers, and debt holders. A vast literature attempts to explain the nature of the agency conflicts in corporate governance and possible ways to resolve such conflicts. However, the core agency conflicts emanating from the separation of ownership (shareholder principal) and control (manager agent) cannot be fully addressed by the existing theoretical and legal framework. Attempts to monitor agents is inevitably costly and transaction costs abound. The literature has overlooked the unprecedented efficient solutions offered by blockchain technology for agency problems in corporate governance.

Agency Problems

Agency problems originate from the lacking trust between principals and agents. The agency relationship can be defined as a contract between principal and agent whereby the agent acts on principals’ behalf because principal delegated a modicum of decision-making authority to the agent (Jensen and Meckling (1976)). Because of the delegated authority, the agents’ decisions affect both the agents’ welfare and the principals’ welfare. The agency model at its very basic level suggests that information asymmetries between the principal and the agent and agents’ opportunistic behavior resulting from self interest leads to principals’ lacking trust in agents. Because of bounded rationality, incomplete foresight, and information asymmetries between principal and agent, it is impossible for principals to contract for every possible action or inaction of the agent in order to induce the agent to act in the best interests of the principal (Brennan (1995)).

Agency Costs

Agency costs arise because the principal attempts to control, monitor, and supervise the agent. As a result of lacking trust in the integrity of the principal agent relationship, and in an attempt to minimize information asymmetries, principals are forced to put into place costly mechanisms to align their interest with those of the agents. Most prominently, such control mechanism involve periodic reporting, compensation structures for agents, bonding, among others. In the corporate context, agency costs can be seen as the lost value to shareholders (loss in corporation’s share price) that results from diverging interests between shareholders (principal) and corporate managers (agents). As such, agency costs is the sum of monitoring costs, bonding costs, and residual loss (Jensen and Meckling (1976)).

Monitoring costs are costs to the principal resulting from observing, measuring, and controlling an agent’s behavior. Monitoring costs can include the cost of audits, executing executive compensation contracts, and cost of hiring/firing manager agents. While such monitoring costs are generally paid by the principal, agents may be responsible for such costs as well because agents’ compensation is subject to adjustments to cover monitoring costs (Fama and Jensen (1983)).

Bonding costs are the cost of establishing and adhering to system structures that allow agents to act in shareholder principal’s best interests or compensate shareholder principals appropriately if agents do not act in their best interest. While bonding costs are typically paid by the agents, they may in addition to financial costs include the cost of increased disclosures to shareholder principals. If the marginal reduction in monitoring equals the marginal increase in bonding costs, agents no longer incur bonding costs.

first-picture-copy

The agency relationship in modern finance and corporate governance is characterized by attempts to optimize incentives between principals and agents, control costs, minimize information asymmetries, control adverse selection and moral hazard, optimize risk preferences between principals and agents, and engage in monitoring.

Agency Problems in Corporate Governance

second-picture-copy

The lacking trust in the agent’s performance of her duties creates the underlying problems in corporate governance. Despite best efforts at monitoring and bonding, the interest of manager agents and shareholder principals in corporate governance are never fully aligned and agency losses inevitably arise from conflicts of interest between principals and agents, known as residual loss. Residual loss arises because the cost of enforcing suboptimal contracts between principals and agents always exceed the benefits of performing the contractual obligations.

Existing Governance Mechanisms

Existing governance mechanism sub-optimally address the agency problems in corporate governance. To name only a few of many approaches that are beyond this short illustration, a standard approach much touted by the literature for effective corporate governance involved outside independent directors on corporate boards. Another prominent example involves firms’ capital structures with emphasis on higher debt levels. While these and many other attempts at optimizing corporate governance and addressing the agency problems in corporate governance helped optimize the agency problems, many examples suggest that the core underlying agency problems cannot fully be resolved within the existing theoretical and legal infrastructure.

A standard approach for effective corporate governance involved outside independent directors on corporate boards who hold managerial positions in other companies, thus separating the problems of decision management and decision control (Fama and Jensen (1983)). However, CEOs who often dominate the board make the separation of these functions much more difficult, which hurts shareholders. Furthermore, outside directors’ separation of decision management and decision control depends on their concern over reputation as an incentive, which is insufficient in most cases.

Another much touted governance mechanism for firms involved firms’ capital structures with emphasis on higher debt levels. Higher levels of insider ownership by increasing debt and reducing equity (Jensen and Meckling (1976)) in the firm’s capital structure acts as a bonding mechanism for manager agents (Jensen (1986)). Management by issuing debt rather than paying dividends creates contractual obligations to pay out future cash flows in ways unattainable through dividends. Debt financing can also help create external capital market monitoring which incentivizes managers’ avoidance of personal utility maximization and increases value maximizing strategies for shareholders (Easterbrook (1984)).

Despite the unresolved substantive problems associated with the division of ownership (shareholders) and control (agent), the corporate form with the diffused share ownership that leads to such conflicts, and the incomplete and suboptimal rules that govern such conflicts, remains the most popular form of a governance mechanism. The popularity of existing mechanisms to address the agency problems in corporate governance may be related to path dependencies created by the evolution of internal and external monitoring mechanisms in corporate governance and the evolution of governance mechanisms designed to limit the scope of agency problems, instituted to address the agency problems in corporate governance.

Existing universal governance solutions are often ineffective because agency conflicts and the specific scope of agency conflicts differ across firms. Governance mechanisms and the effectiveness of governance mechanisms in reducing agency conflicts in firms differ from firm to firm. Each type of governance mechanism and combinations of governance mechanisms can help reduce aspects of agency costs associated with the separation of ownership (principal shareholder) and control (manager agent). However, existing governance mechanisms work well in some firms but are ineffective in others. The literature today is still lacking a comprehensive understanding of workable governance mechanisms and solutions across a broad spectrum of firms.

Blockchain Solutions for Agency Problems in Corporate Governance

 

Blockchain offers unprecedented solutions for agency problems in corporate governance. Supervisory tasks that were traditionally performed by principals to control their agents can now be delegated to decentralized computer networks that are highly reliable, secure, immutable, and independent of fallible human input and discretionary human goodwill. Blockchain technology provides an alternative governance mechanism that eliminates agency costs – the principal’s cost of supervising agents – by creating trust in the contractual relationship between the principal and the agent.

Blockchain Technology

A blockchain is a shared digital ledger or database that maintains a continuously growing list of transactions among participating parties regarding digital assets – together described as “blocks.” The linear and chronological order of transactions in a chain will be extended with another transaction link that is added to the block once such additional transactions is validated, verified and completed. The chain of transactions is distributed to a limitless number of participants, so called nodes, around the world in a public or private peer-to-peer network. The central elements of blockchain technology include: transaction ledger, electronic, decentralized, networked, immutable, cryptographic verification, among several others. Vitalik Buterin, the founder of Ethereum perhaps most prominently defined blockchain as follows:

“Public blockchains: a public blockchain is a blockchain that anyone in the world can read, anyone in the world can send transactions to and expect to see them included if they are valid, and anyone in the world can participate in the consensus process – the process for determining what blocks get added to the chain and what the current state is. As a substitute for centralized or quasi-centralized trust, public blockchains are secured by cryptoeconomics – the combination of economic incentives and cryptographic verification using mechanisms such as proof of work or proof of stake, following a general principle that the degree to which someone can have an influence in the consensus process is proportional to the quantity of economic resources that they can bring to bear. These blockchains are generally considered to be “fully decentralized”.”

Smart contracts and smart property are blockchain enabled computer protocols that verify, facilitate, monitor, and enforce the negotiation and performance of a contract. The term “smart contract” was first introduced by Nick Szabo, a computer scientist and legal theorist, in 1994. An often-cited example for smart contracts is the purchase of music through Apple’s iTunes platform. A computer code ensures that the “purchaser” can only listen to the music file on a limited number of Apple devices.

More complex smart contract arrangements in which several parties are involved require a verifiable and unhackable system provided by blockchain technology. Through blockchain technology, smart contracting often makes contractual legal contracting unnecessary as smart contracts often emulate the logic of legal contract clauses. Ethereum, the leading platform for smart contracting, describes smart contracting in this context as follows:

”Ethereum is a decentralized platform that runs smart contracts: applications that run exactly as programmed without any possibility of downtime, censorship, fraud or third party interference. These apps run on a custom built blockchain, an enormously powerful shared global infrastructure that can move value around and represent the ownership of property. This enables developers to create markets, store registries of debts or promises, move funds in accordance with instructions given long in the past (like a will or a futures contract) and many other things that have not been invented yet, all without a middle man or counterparty risk.”

Blockchain Guarantees Create Trust in the Agency Relationship

Blockchain technology creates a platform for trust through truth and transparency for parties. Because the blockchain (at the least the public blockchain) is in fact public and immutable, the technology increases transparency, while at the same time significantly reducing transaction costs.

Blockchain technology provides formal guarantees to participating principals and agents that address agency problems in corporate governance comprehensively. Because of the blockchain guarantees, the technology allows a qualitatively different solution for agency problems in corporate governance, especially if compared with the existing finance infrastructure that is riddled with agency problems (see credit rating, executive compensation etc).

The immutability of the blockchain and its cryptographic security systems provide transactional guarantees and create trust between principals and agents in the integrity of their contractual relationship. Such guarantees ensure no participant can circumvent the rules embedded in blockchain code. Blockchain guarantees include contract execution between principal and agent only if and when all contract parameters were fulfilled by both parties and verified by a majority of miners/nodes in the system. Hence, in the blockchain infrastructure, there is no need for the principal to institute oversight and monitoring with the associated agency costs. Because of the governance guarantees embedded in code, blockchain addresses the inherent agency problems in modern finance and corporate governance comprehensively.

Blockchain technology secures the integrity of principal agent relationships by removing fraudulent transactions. Compared with existing methods of verifying and validating transactions by third party intermediaries (banking, lending, clearing etc.), blockchain’s security measures make blockchain validation technologies more transparent, faster, and less prone to error and corruption. While blockchain’s use of digital signatures helps establish the identity and authenticity of the parties involved in the transaction, it is the completely decentralized network connectivity via the Internet that allows the most protection against fraud. Network connectivity allows multiple copies of the blockchain to be available to all participants across the distributed network. The decentralized fully distributed nature of the blockchain makes it practically near impossible to reverse, alter, or erase information in the blockchain. Blockchains’ distributed consensus model, e.g. the network “nodes” verify and validate chain transactions before transaction execution, makes it extremely rare for a fraudulent transaction to be recorded in the blockchain. Blockchain’s distributed consensus model allows node verification of transactions without comprising the privacy of the parties. Blockchain transactions are therefore arguably safer than a traditional transaction model that requires third-party intermediary validation of transactions. Blockchain technology is also substantively faster than traditional third-party intermediary validation of transactions.

Cryptographic hashes used in blockchain technology further increase blockchain security and removes trust barriers in agency relationships that require monitoring of agents and create agency costs. Cryptographic hashes are complex algorithms that use details of the existing entirety of transactions of the existing blockchain before the next block is added to generate a unique hash value. That hash value ensures the authenticity of each transaction before it is added to the block. The smallest change to the blockchain, even a single digit/value, results in a different hash value. A different hash value in turn makes any form of manipulation immediately detectable. As such, hash cryptology provides another level of guarantee in a agency relationship executed through blockchain technology.

Smart contracts enabled by blockchain technology allow for the comprehensive, error free, and zero transaction/agency cost coordination of agency relationships. Smart contracts and smart property are blockchain enabled computer protocols that facilitate, verify, monitor, and enforce the negotiation and performance of a contract between principal and agent. Agency relationships in smart contracts run exactly as coded without any possibility of opportunistic behavior of the agent. Information asymmetries between principal and agent, censorship, opportunism of agents, breaches of fiduciary duties, liability rules for principals and agents, fraud or third party interference are removed entirely. All contractual terms are public and fully transparent. Accordingly, a company’s finances, for instance, are visible on the blockchain to anyone, not just to the company’s accounting department. Smart agency contracts run on a custom built blockchain, that enables principals and agents to store registries of debts or promises, create entire markets, among many other aspects that have not yet been considered.

Agency related governance in the blockchain takes place without intermediaries, counterparty risk, and principal’s control mechanisms. Blockchain technology simply does not require the layers of control and verification that prior financial systems necessitated. Control mechanisms such as regular management (agent) meetings with shareholders (e.g. at the AGM etc.), financial disclosures, management agent scrutiny through analyst reports and financial press, pressure on management from stock market performance, hedge fund investors, and other institutional and private investors, are no longer part of the blockchain enabled agency relationship in corporate governance.

Blockchain technology facilitates a substantial increase in the efficiency of agency relationships in orders of magnitude and lowers agency costs equally substantial in orders of magnitude. The removal of checks and balances in corporate governance, monitoring of agents, audit requirements, disclosure regimes, market pressure, executive agent compensation schemes, among many others, provides a qualitative shift in efficiency in the agency relationship and in corporate governance overall.

third-picture-copy

Self-validating blockchain transactions can help resolve the agency issues between most of the stakeholders and constituents of modern corporations. In addition to addressing the traditional agency problem in corporate governance between shareholder principals and manager agents, blockchain enabled smart contracting allows for the public and fully transparent, secure, and completely networked exchange between the corporation and customers, owners and investors, other stakeholders, staff, regulators, strategic partners, suppliers and service providers.

Blockchain Removes Agents

Blockchain technology can facilitate the removal of agents as intermediaries in corporate governance through code, peer-to-peer connectivity, crowds, and collaboration. While it is still difficult to imagine a world without governance structures facilitated by agency constructs, Decentralized Autonomous Organizations (DAOs) have started to challenge the core believe that governance necessitates agency.

The first DAO, launched in May 2016, in the founders’ attempt to set up a corporate-type organization without using a conventional corporate structure, had a governance structure that was entirely built on software, code, and smart contracts that ran on the public decentralized blockchain platform Ethereum. Because if was pure computer code it had no physical address, no jurisdiction that could claim jurisdiction/control over it, and it was not an organization with a traditional hierarchy as we know it from traditional corporate structures. The DAO did not use a traditional corporate structure that necessitated formal authority and empowerment flowing top down from investors/shareholders through a board of directors to management and eventually staff. Indeed, it had no directors, managers or employees. In essence, all the core control mechanisms typically employed by principals in agency relationships were entirely removed in the DAO.

While the first DAO was subject to many limitations and ended in quite some controversy, future DAOs may be less prone to problems. Fundamental flaws in the DAO code enabled hackers to transfer one third of the total funds to a subsidiary account. This hack in combination with additional technological limitations brought down the first DAO initiative. Yet, future DAOs are already created and DAO enthusiasts never stopped testing it. A new DAO is currently being developed that is not set up as a Venture Capital Fund but rather as a donation DAO where participants donate and don’t expect returns. DAO enthusiasts and the DAO community in general are constantly improving the DAO and it seems possible that future DAOs may improve agency problems in corporate governance much more thoroughly than is currently fathomable.

References:

Brennan, M.J. (1995), ‘Corporate Finance Over the Past 25 Years’, Financial Management 24, 9-22.

Fama, E.F. and M.C. Jensen. (1983), ‘Separation of Ownership and Control’, Journal of Law and Economics 88 (2), 301-325.

Easterbrook, F.H. (1984), ‘Two Agency Cost Explanations of Dividends’, American Economic Review 74 (4), 650-659.

Jensen, M.C. and W.H. Meckling. (1976), ‘Theory of the Firm: Managerial Behaviour, Agency Costs and Ownership Structure’, Journal of Financial Economics 3 (4), 305-360.

Jensen, M.C. (1986), ‘Agency Costs of Free Cash Flow, Corporate Finance and Takeovers’, American Economic Review 76 (2), 323-329.

Future of Innovation and Law

A wave of innovation and decentralization is sweeping across the world, challenging the traditional role of law, lawyers and law schools. Central themes from an Incredibly energizing and enabling course co-taught with @erikpmvermeulen at @USTLawMN “Disruptive Innovation – Why Lawyers Matter” include in order of priority: #innovation, #innovators, #platform, #entrepreneur, #bigdata, #blockchain, #smartcontracts, #machinelearning, #ArtificialIntelligence, #InternetOfThings, #sharingeconomy, #legaltech, #regulation, #regulate, #corpgov, #governance, #legal.

Future Companies and Governance

What should companies do to be successful in the future? What kind of structures, practices and processes will best equip a firm to reinvent itself and its products? How can firms transform themselves into 21st century companies? The Answer: Firms should adopt a decentralized and open model of innovation, value creation and growth. Ecosystems and platforms are the new normal. Companies that understand “how to organize now for success tomorrow” (@erikpmvermeulen) will win. Such companies understand the power of the ecosystem and platforms. These companies appreciate that governance is not only about disclosure and achieving sustainable long-term investment and growth but about engaging in an open dialogue, open “personalized” communication with all the stakeholders (not just customers or shareholders).

20th century companies:

  • profit driven
  •  hierarchy
  •  formalistic
  • closed networks
  • job security

21st century companies are better and embrace new values to innovate and stay relevant:

– – mission driven

– – flat hierarchies

– – inclusive

– – fluid

– – open communication

– – millennials

– – best idea wins

– – decentralized

– – crowd-culture

– – platform-enabling

– – create ecosystems for continuous innovation

@wulfkaal & @erikpmvermeulen We use Under Armour as an example of a 21st century company that is embracing the “platform economy”. Its connected fitness platform and open platform of innovation (ideahouse.ua.com) are examples. The Brand House shows that Under Armour lives its values: Act like a global citizen, Think like an entrepreneur, Create like an innovator, Perform like a teammate.

Regulators

When and how should regulators regulate disruptive innovation? Will technology replace regulators, regulations, and lawyers? A possible answer: A need for flexible and inclusive processes exists that involves startups, established companies, regulators, experts and the public. Innovations and regulatory responses must be tested in a “live” environment. To a certain extent, this regulatory approach is recently adopted in the financial industry with the introduction of “regulatory sandboxes”. Dynamic regulatory processes (@wulfkaal) can play a central role in the new world of innovation. Regulators will have to offer more guidance on how to “organize for innovation.”

Lawyers

The lawyers and law firms of the future distinguish themselves by embracing legal tech, join one or more of the emerging legal platforms (e.g. www.digitorney.de) and legal communities and operate as a bridge between the diverse range of actors (accountants, designers, ML engineers etc.) that must now work together in dealing with challenges of the sharing economy. During the course, we show that the development of new platforms and ecosystems, blockchain technology, smart contracts, internet of things, big data, machine learning, and artificial intelligence plays a central role in the future of law and cannot be ignored.

Key Takeaways

Key takeaways of the “Disruptive Innovation – Why Lawyers Matter” course include the recognition that blockchain technology and smart contracts will change the way we live, work and learn. Blockchain-based smart contracts will help scale and accelerate the sharing economy and enable the development of Internet of Things applications. These applications will disrupt the business of law, but will also lead to enormous opportunities for legal professionals. They will have to rethink “legal concepts” in the areas of property law, corporate law, contract law, etc.

Course Description

The purpose of this course is for students to gain an understanding of the exponential rate of disruptive innovation in a broad array of industries, the effect on corporations, the possible approaches for regulating such innovation, and the role of lawyers in this context.

The course examines the exponential rate of disruptive innovation affecting multiple industries. Students will learn about concrete real-life and data-driven examples of disruptive innovation and the short- and long-term effects of this innovation, including the emergence of flat corporate hierarchies to foster innovation and ensure the best ideas prevail in corporations struggling to stay relevant, open communication, and inclusivity. The course will examine innovation driven business cycles and highlight examples pertaining to corporations that failed to institute relevant changes to remain relevant in the face of disruptive innovation (Kodak, Nokia, among others). We will also examine how and why certain corporations (Amazon, Google, Tesla, Under Armour, among others) continue to thrive and what changes they instituted, allowing them to capitalize on disruptive innovation. More specifically, we will examine the emergence of “Dinosaurs” (companies that find themselves in a process of slow and terminal decline); “Unicorns” (large companies that remain private in order to avoid the stifling effects of post-IPO regulation); and “Governance Renegades” (public companies that adopt unconventional corporate structures in order to retain the pre-IPO-start-up-feel).

Given these governance changes and new structures imposed by disruptive innovation, the course examines the role of attorneys in this rapidly evolving environment. Students will learn about the legal relevance of the evolution of business strategy, technology, and the application and evolution of artificial intelligence in businesses. Based on the understanding of challenges and opportunities presented by disruptive innovation, students will develop the ability to discern their own possible value proposition in the disruption of businesses in various industries. The course will evaluate the different skills that allow students to remain relevant including soft skills, psychology, and the ability to understand business cycles and technology. The course emphasizes the importance of student skills at the intersection between law, business, psychology, and technology.

Dynamic Regulation Via Investment Data as a Remedy for Law’s Diminishing Capacity to React to Innovation

First published at: https://www.law.ox.ac.uk/business-law-blog/blog/2016/09/dynamic-regulation-investment-data-remedy-law’s-diminishing-capacity

Key words: Disruptive Innovation, Venture Capital, Venture Investments, Dynamic Regulation, Feedback Effects, Optimized Information for Regulation, Anticipatory Regulation, Big Data

In a series of recent papers – ‘Dynamic Regulation for Innovation’, ‘Regulation Tomorrow: What Happens When Technology Is Faster Than the Law?’, and ‘How to Regulate Disruptive Innovation – From Facts to Data’ – I evaluate the diminishing relationship between regulation and innovation. The so-called ‘pacing problem’ between innovation and regulation suggests that innovation driven by science and technology is accelerating, yet, simultaneously, federal and state agencies’ regulatory processes have slowed down.

Several factors contribute to this pacing problem. Some consensus exists that the legal and evidentiary burdens placed on regulatory authorities have increased substantially over time, precipitating the remarkable slowdown in rulemaking by regulatory agencies. The growing divergence between the time cycles of technological innovation and the time cycles of governments around the world contributes significantly to the pacing problem. Systemic factors such as the political and ideological structures in the rulemaking process, the political gridlock in a two-party system that impedes the passing of legislation, legislators’ disagreement on how outdated statutes should be updated, and the need for crises to precipitate legislative action also help to explain the pacing problem.

 

The existing regulatory infrastructure contributes significantly to this problem. In the existing regulatory framework, the regulatory challenges presented by disruptive innovation are largely associated with facts-based, ex-post, trial-and-error rule-making, with stable and presumptively optimal rules. In essence, some evidence exists that governments mostly regulate to react ex-post, after problems arose in the existing regulatory framework but rules are always assumed to be optimal even though optimality is unattainable in a rapidly innovating and increasingly complex world. Other regulatory challenges are presented by the slow speed of regulation, and ever-increasing unknown future contingencies in rulemaking. Because facts-based, ex-post, trial-and-error rule-making cannot anticipate regulatory issues created by innovation, rule-makers may not – or may much too late – realize what new regulatory demands apply to a given innovation. Rule-makers’ near exclusive reliance on stable and presumptively optimal rules created to attain permanent solutions for perceived regulatory issues ignores the ever-changing environment for rules driven by the exponential growth of technology, and the associated exponential growth of innovation.  The timing of regulation in an environment of exponential innovation is a primary problem for regulators. Formal rulemaking in the existing regulatory infrastructure is almost always too time-consuming because the speed of product innovation often makes regulations pertaining to an innovative product obsolete before such regulations are finalized. Finally, the existing regulatory infrastructure, with stable and presumptively optimal rules, is largely incapable of addressing the ever-increasing unknown future contingencies associated with disruptive innovation. Given the pace of innovation, future contingencies in rulemaking are likely to increase substantially, making the dynamic anticipation of future contingencies more important for rulemaking.

Lawmaking and regulatory design need to become more dynamic and anticipatory in their efforts to address this pacing problem. Increased reliance on different sources of data surrounding new technologies can provide some signals or clues about what, when and, to a certain extent, how to regulate.

Here, I show that data relating to investment in new technology and innovation is of particular importance in this context. A plethora of investment data is readily available to make accurate predictions regarding what the next ‘big thing’ is likely to be.  Such data can be used as an index or proxy for the necessity of regulation. Because start-up companies are the ones that usually challenge existing rules, laws and regulations, private data sources are widely available. The proliferation of the better hand-collected global databases on the market, such as CB Insights, PitchBook and Mattermark, can make an important contribution to a ‘data-driven’ regulatory approach.

Investment data can help to develop a list of technologies and issues that need to be the focus of regulatory attention. From such data, rule-makers can get a better – and earlier – sense of which technologies are developing and which technologies need regulatory attention. This might then allow regulators to be more pro-active and avoid wasting resources on technologies that are unlikely to make it to market. It would also allow regulators to more accurately define the scope of a technology by focusing on the type of firm that is attracting attention.

Wulf A. Kaal is an Associate Professor at the University of Saint Thomas School of Law (Minneapolis).

Empirical Evidence on proposed Investment Advisers Modernization Act

The NYT today summarized the political background on the proposed Investment Advisers Modernization Act here:

My Colleague, Jennifer Taub (Vermont) testified in the House Subcommittee on Financial Services in this context and was kind enough to cite some of my work:

https://wulfkaal.com/2016/05/19/investment-advisers-modernization-act-of-2016/

Here the two perhaps most relevant empirical findings on the Investment Advisers Modernization Act of 2016:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629386

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629347

 

Private Fund Investor Due Diligence – Evidence from 1995 to 2015

Private Fund Investor Due Diligence – Evidence from 1995 to 2015

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811718

Wulf A. Kaal


University of St. Thomas, Minnesota – School of Law; European Corporate Governance Institute (ECGI)

July 19, 2016

Review of Banking and Financial Law, 2016
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 16-15 
Abstract: 

The importance of private fund investor due diligence in the investment allocation process, in capital formation, and in private fund litigation has reached unprecedented levels and is further increasing. To provide the industry with data, data trend analyses, and guidance on applicable legal standards, the author examines two datasets: (1) private investment fund advisers’ SEC Form ADV II filings from 2007 to 2014 (N=100392), and (2) the publicly available litigation record pertaining to private fund investor due diligence from 1995 to 2015 (N=572). After highlighting important changes in the quality and quantity of private fund investor due diligence in SEC Form ADV Part II, the author evaluates the corresponding litigation record and analyzes expert guidance on applicable best practices.

Number of Pages in PDF File: 37

Keywords: Private Investment Fund, Investor, Investor Due Diligence, SEC Form ADV Part II, Disclosures, Case Law, Legal Standards, Expert Testimony, Time Series

JEL Classification: G23, G24, G28, K22

Regulation Tomorrow: What Happens When Technology is Faster than the Law?

Regulation Tomorrow:
What Happens When Technology is Faster than the Law?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2834531


Mark Fenwick – Faculty of Law, Kyushu University

Wulf A. Kaal  – University of St. Thomas, Minnesota – School of Law; European Corporate Governance Institute (ECGI)

Erik P. M. Vermeulen  – Tilburg University – Department of Business Law; Philips Lighting – Legal Department; Tilburg Law and Economics Center (TILEC); Kyushu University – Graduate School of Law

September 4, 2016

Lex Research Topics in Corporate Law & Economics Working Paper No. 2016-8 
Abstract: 

In an age of constant, complex and disruptive technological innovation, knowing what, when, and how to structure regulatory interventions has become much more difficult. Regulators can find themselves in a situation where they believe they must opt for either reckless action (regulation without sufficient facts) or paralysis (doing nothing). Inevitably in such a case, caution tends to trump risk. But such caution merely functions to reinforce the status quo and the result is that new technologies struggle to reach the market in a timely or efficient manner.

The solution: lawmaking and regulatory design needs to become more proactive, dynamic and responsive. So how can regulators actually achieve these goals? What can they do to promote innovation and offer better opportunities to people wanting to build a new business around a disruptive technology or simply enjoy the benefits of a disruptive new technology as a consumer?

Number of Pages in PDF File: 16

Keywords: Airbnb, Artificial Intelligence, Big Data, Drones, FinTech, Principles, Regulation, Regulatory Sandbox, Robotics, Rules, Uber

JEL Classification: E22, G2, K2, K22, K32, K40, L26, L43, L51, O3, O30, O31, O33

Dynamic Regulation for Innovation

Dynamic Regulation for Innovation

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2831040

Wulf A. Kaal


University of St. Thomas, Minnesota – School of Law; European Corporate Governance Institute (ECGI)

August 27, 2016

Perspectives in Law, Business & Innovation (Mark Fenwick, Wulf A. Kaal, Toshiyuki Kono & Erik P.M. Vermeulen eds.), New York Springer (2016) 
Abstract: 

A large consensus in the literature suggests that law has a diminishing capacity to react to innovation. After summarizing the commonalities between the law and technology literature and the literature on dynamic regulation in the analysis of the so-called pacing problem between regulation and innovation, the chapter evaluates proposed remedies for the pacing problem and distinguishes dynamic regulatory remedies.

Number of Pages in PDF File: 30

Keywords: Growth of Technology, Innovation, Regulation of Innovation, Pacing Problem, Dynamic Regulation, Feedback Effects, Optimized Information for Regulation, Anticipatory Regulation

JEL Classification: K20, K23, K32, L43, L5, O31, O32

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