Tech Disputes Network (TDN) – Need to Know Basis

Crypto Disputes Round-Up – April 2023

Tue, 28 Mar 2023 22:00:00 +0100

TDN's latest podcast is a pacey rundown on the state of play in crypto litigation.

Sam Roberts of Cooke, Young & Keidan is joined by Sam Goodman of Twenty Essex, Helen Pugh of Outer Temple Chambers and Nicola McKinney of Quillon Law to tackle the following hot topics:

The latest on injunctions, Persons Unknown cases, service out of the jurisdiction and enforcement (spoiler alert: Sam Goodman talks about his own cases)
Everything else going on in crypto litigation (Helen covers a lot of ground)...
... and a quick rundown by Nicola on the various cases involving Craig Wright

If you have an hour to spare (sorry, it's a big topic) and want a new way to educate yourself beyond LinkedIn case updates, this may be for you.

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A Practical Guide to Cyber Fraud Litigation - Matt McGhee & Sam Roberts discuss the 2nd edition of Matt's book

Fri, 10 Mar 2023 09:00:00 +0000

TDN's latest podcast is a discussion between Sam Roberts of Cooke, Young & Keidan and Matt McGhee of Twenty Essex about the second edition of Matt’s book, A Practical Guide to Cyber Fraud Litigation.

In this unscripted conversation, Sam and Matt cover:

The new service gateways and whether the distinction between Bankers Trust and Norwich Pharmacal orders is now a thing of the past
Why victims of fraud are increasingly looking to “recover their chickens” from financial institutions caught up in the fraud
The key practical differences between crypto and non-crypto cyber fraud cases
Pros and cons of the various ways of getting judgment on an undefended claim against Persons Unknown
Practical advice for aspiring authors

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Music credit: Moments by Sarah Jansen https://soundcloud.com/sarahjansenmusic
Creative Commons — Attribution 3.0 Unported — CC BY 3.0
Free Download / Stream: https://bit.ly/al-moments
Music promoted by Audio Library https://youtu.be/qGWyeTnQavY

Crypto & career advice – an interview with Stephen Houseman QC

Thu, 23 Jun 2022 15:00:00 +0100

TDN's latest podcast is a discussion between Sam Roberts of Cooke, Young & Keidan and Stephen Houseman QC of Essex Court Chambers, who, sitting as a Deputy Judge of the London Circuit Commercial Court, gave judgment on the recent crypto case, Wang v Darby.

In this unscripted conversation, Sam and Stephen cover:

Stephen's career and current area of focus in his commercial practice
Tips for aspiring advocates in the dark art of persuading judges, from the perspective of someone who has seen both sides
Whether Wang v Darby was a true crypto case, or just a case involving crypto
What the future holds for crypto in litigation

Blockchains and the Limits of Ownership - Michael Jacobs of Locke Lord

Wed, 13 Apr 2022 22:00:00 +0100

TDN's latest podcast is a discussion between Sam Roberts of Cooke, Young & Keidan and Michael Jacobs of Locke Lord on the extent to which the law is still a useful guide to interpreting issues like ownership and possession on the blockchain.

In this unscripted conversation, Sam and Michael cover:

What a recent example of blockchain performance art has to say about ownership on the blockchain
Whether buyers of NFTs ought to read the codified 'small print' of smart contracts
The possible uses of smart contracts for evading enforcement and certain legal obligations
Practical tips to avoid getting scammed by 'airdropped' tokens

Lizzie Williams of Harbottle & Lewis – When Smart Contracts and the Law Collide

Thu, 17 Feb 2022 22:00:00 +0000

TDN's latest podcast is a discussion between Sam Roberts of Cooke, Young & Keidan and Lizzie Williams of Harbottle & Lewis on the intersection between smart contracts and the law.

In this unscripted interview, Sam and Lizzie cover:

Whether “code is law” or whether the law has the final word
Flash loans, recent flash loan ‘attacks’ and whether victims might have any recourse
Mistake in the context of smart contracts and whether the conclusions of the Singaporean courts in B2C2 Ltd v Quoine might be applied here
Remedies and practical issues in smart contract disputes

Triple Point Technology Inc v PTT Public Company Ltd - James Howells QC, Robert Fidoe and Matthew Walker

Wed, 29 Sep 2021 17:00:00 +0100

We are pleased to announce the latest podcast, which is on the topic of the recent Supreme Court decision in Triple Point Technology Inc v PTT Public Company Ltd [2021] UKSC 29.

This was a much-publicised decision and may well be familiar to many TDN members. It was much anticipated in certain sectors, following a controversial decision in the Court of Appeal. The issues it decided were threefold: (1) whether an employer only has a right to liquidated damages if the contractor completes the works, or if liquidated damages are still payable if the employer terminates the contract before completion; (2) whether a limitation of liability clause excluding loss caused by "negligence" applies to acts amounting to a breach of a contractual duty to use reasonable care and skill, which do not constitute negligence in tort; and (3) whether a limitation of liability clause excluding claims for which there are "specific remedies expressly identified as such in this contract" nonetheless applies to liquidated damages. These issues are of course of considerable significance to many areas of the disputes market, perhaps in particular IT and construction.

Our panellists for this podcast are James Howells QC of Atkin Chambers, Robert Fidoe of Watson Farley & Williams and Matthew Walker of K&L Gates. James was leading counsel for the successful appellant in the Supreme Court, instructed by a Watson Farley & Williams led by Robert, and Matthew is one of the City’s leading contentious construction lawyers. The Tech Disputes Network are very fortunate to welcome such a distinguished panel to discuss this important case. We hope that you enjoy the podcast.

NFTs – an interview with Chris Haywood, Charles Russell Speechlys

Fri, 23 Jul 2021 11:00:00 +0100

The only thing stranger than living through a pandemic is seeing a single pixel sell for over US$1 million. In 2021, NFTs exploded on to the scene – a potent and valuable mixture of art and technology liable to stump artists and technologists alike.

In this episode of TDN's Need to Know Basis podcast series, Sam Roberts, TDN co-founder, is joined by Chris Haywood, an art lawyer at Charles Russell Speechlys in Dubai, to explain and unpack NFTs and guess where we might see the disputes.

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Music credit: Moments by Sarah Jansen https://soundcloud.com/sarahjansenmusic
Creative Commons — Attribution 3.0 Unported — CC BY 3.0
Free Download / Stream: https://bit.ly/al-moments
Music promoted by Audio Library https://youtu.be/qGWyeTnQavY

The Legal Relationship between Cryptoasset Investors and Intermediaries - Andrew Spink QC and Hin Liu

Wed, 31 Mar 2021 10:00:00 +0100

This podcast is about the topical question of the legal basis on which cryptoassets are held on behalf of investors by intermediaries, such as exchanges.

It seems like everyone is a cryptoasset investor these days. The surging value of Bitcoin, increased legitimacy leant to the sector by the recommendations from established institutions, and the long hours the world has spent in front of its laptop without alternative distracton has created a booming market for digital assets, which has expanded beyond cryptocurrencies such as Bitcoin and led to mainstream adoption of formally niche products like NFTs. In short, all the signs are that, as and when dinner parties start becoming a thing again, there's a fairly good chance that you can expect to have your ear bent about how digital assets are the road to riches and, what's more, it might just be an investment professional doing the preaching. However, it’s perhaps less likely (unless of course you are extraordinarily lucky in the dinner parties you get invited to) that discussion will move from talk of enticing returns to the somewhat less enticing legal basis on which cryptoassets are held by intermediaries for investors and, as a result, the nature of the recourse that investors may have vis-a-vis the intermediary if problems arise.

This is an important question, because the majority of cryptoassets are currently held via intermediaries such as exchanges, which offer investors commercial convenience while also often exposing them to risks, such as hacker theft. It's also a difficult question, with this being an area of the law that is in development and full of puzzling complexities. We are therefore very fortunate to welcome two such distinguished practitioners as Andrew Spink QC of Outer Temple Chambers and Hin Lui of Oxford University to explain the key issues. Andrew is one of the country’s preeminent silks, a Deputy High Court judge and the co-head of Outer Temple Chambers, who are increasingly a leader in this space. Hin is a lecturer at Oxford University, the author of academic publications on the topic of this podcast, and legal consultant to Fusang, Asia’s first fully licensed digital stock exchange.

Cryptoassets and Conflict of Laws - Chloe Bell and Joshua Cainer

Wed, 09 Dec 2020 16:00:00 +0000

This podcast is about conflict of laws issues relating to cryptoassets. For many working in the cryptoasset industry, code is, or at least ideally should be, law. Lawyers usually find it quite easy to disagree with that. However, they often have a tougher time agreeing what system of law should then apply to ‘on chain’ disputes. This may be a question of considerable practical significance. For instance, the Financial Markets Law Committee noted in a 2018 paper that “As the law relating to DLT lags behind the trajectory of the technology, an international conflict of laws framework for financial transactions and systems using DLT needs to be developed as a matter of priority.” However, in the continued absence of any such framework (and there may be fiscal and reputational reasons for scepticism about a critical mass of governments giving a helping hand to this asset class) how do you determine what law applies to disputes about pseudonymously-held assets existing on decentralised public blockchains on which transactions are effected by consensus rather than contract?

This is not an easy question for English lawyers to answer from a technical perspective, and one that is further complicated by the current lack of on-point precedent. However, for those increasing numbers of practitioners involved with cryptoasset disputes, it also may be a thorny issue that there is no getting away from. For those with such headaches on the horizon, this podcast, presented by Chloe Bell and Joshua Cainer of Outer Temple Chambers, may be able to help by outlining and proposing workarounds for many of the tricky conflict of laws questions that cryptoasset poses. Chloe is a commercial barrister, a former référendaire at the CJEU and judicial assistant to Lord Mance. Joshua is a former judicial assistant to Sir Terence Etherton and taught law at the University of Cambridge. Between them they have written and lectured widely on topics relating to cryptoassets, which is a field in which Outer Temple Chambers is fast developing a stellar reputation.

A Crash Course in Cryptocurrencies - Sam Goodman

Thu, 12 Nov 2020 16:00:00 +0000

This podcast is about cryptocurrencies, which are no longer the preserve of starry-eyed idealists and dark web ne’er-do-wells and are now very much big business. Cryptocurrency is reported to be 2020’s highest performing asset class, with the Bloomberg Galaxy Crypto Index recording a 120% gain from the start of the year. While the prospects for its mass-market adoption remain uncertain, it is increasingly clear that Bitcoin et al are destined to play an ever more significant role in the investment portfolios and courtroom battles of the future.

However, many aspects of cryptocurrencies pose awkward legal questions, most of which have yet to be addressed in the courts in the decade or so that they have existed. Should you have any clients who might one day put you on the spot for their answers, this podcast, which summaries what we know and what we do not yet know about cryptocurrencies from an English law perspective, may be for you.

The podcast is presented by Sam Goodman, a barrister at Twenty Essex. Sam was one of the authors of the Legal Statement on the Status of Cryptoassets and Smart Contracts, which is arguably the most authoritative statement on the status of cryptoassets in this jurisdiction and which was described by the chancellor of the High Court as “a watershed for English law”. He was also instructed on B2C2 Ltd v Quoine Pte Ltd, which resulted in one of the very few judgments concerning cryptocurrencies following a full trial.

Lawtech 'IRL' : Automated Chronologies - Sophie Broch

Fri, 09 Oct 2020 13:00:00 +0100

This week’s podcast is about is about one of the many ways in which AI is changing the way in which disputes lawyers work. Automated chronologies, which broadly means the process of automated classification, chronological ordering and intuitive presentation of matter-related documents, is a great illustrative example of how the much-hyped lawtech revolution is playing out in practice.

While the headlines often focus only on the distant and speculative potential of AI to in effect replace lawyers, the real-world reality is typically less grandiose, more helpful and, notwithstanding the aura of robotic impenetrability that sometimes surrounds AI, particularly good at making complicated things simpler and more digestible for people. While the singularity is nowhere near, the end of a lot of the more tedious litigation tasks, and the start of a more intuitive, collaborative and potentially enjoyable process for disputes professionals appears much closer at hand, ushered in by applications that, for example, help visualise a case as the kind of chronological narrative that all people, lawyers included, inevitably use to make sense of the world.

To present this podcast we are pleased to welcome Sophie Broch, who was an experienced commercial disputes lawyer at a number of very well-known firms and who is now the Head of Litigation solutions at litigate.ai. Litigate are a company at the forefront of lawtech innovation, providing an operating system made for the specific purpose of making litigators lives easier via various innovative and practical applications of AI.

FRAND-ly Fire: the Supreme Court's Decision in Unwired Planet International v Huawei - Mike Cumming-Bruce

Thu, 17 Sep 2020 18:00:00 +0100

This podcast is about the recent decision of the Supreme Court in Unwired Planet International and others v Huawei Technologies (UK) Co Ltd and others [UKSC 2018/0214].

The judgment decided a number of issues, including whether the English court has jurisdiction to grant injunctions restraining infringement of UK patents of major importance to the telecommunications industry if the infringing party refuses to enter into a global license of a patent portfolio at rates determined by the English court, whether England was on the facts of the case the appropriate forum to determine the dispute, and whether an injunction should have been refused on the basis of alleged non-compliance with mandatory guidance in the CJEU decision in Huawei v ZTE.

This podcast focuses principally on the determination of the Supreme Court on the issue of the jurisdiction of the English courts, which it determined do indeed have jurisdiction to unilaterally set the terms of global intellectual property licenses on fair, reasonable and non-discriminatory (or FRAND) terms, which are terms of considerable commercial significance within telecommunications and other technical industries operating in an international context. The confirmation provided by the Supreme Court that the English courts have jurisdiction to determine the terms of FRAND licences on a global and not simply a national basis may have potential to make the UK a hotspot for determination of IP disputes in this area moving forward, and hence may be of significance to parties operating in telecoms and other technical industries, as well as to their advisors.

This podcast is presented by Mike Cumming-Bruce, who is one of the founders of the TDN and a senior associate at Cooke, Young & Keidan. If further information regarding either the issues in the podcast or the TDN more generally would be useful, please feel free to reach out to Mike by email to michael.cumming-bruce@cyklaw.com.

Payment Fraud and the Blame Game - Matthew McGhee

Wed, 09 Sep 2020 22:00:00 +0100

We are very pleased to welcome Matthew McGhee of Twenty Essex to present this week’s episode of the Tech Dispute Network’s ‘Need to Know Basis’ podcast series on payments frauds. You can find the podcast here: https://disputes.tech/podcasts/

Payment fraud has become a regular feature in the news, and regrettably the current circumstances of the COVID-19 pandemic have only increased the prevalence of this fraud. The perpetrators have become both ever more brazen and ever more sophisticated in their attempts to trick their victims into paying sometimes very large sums of money to an account that they, the fraudster, control. The profile of victims ranges from individuals dealing with their personal bank accounts, right the way through to multi-national companies whose losses to these frauds can be counted in the millions. Although it is possible to track down the fraudster responsible, this is not always a feasible option – often due to the likely expense of doing so. Therefore a person who has been tricked into paying the fraudster instead of the person they intended to pay may often look to see whether they can blame the intended payee for the fraud.

To discuss these issues, we are joined today by Matthew McGhee, a barrister at Twenty Essex. Matthew has direct experience of cases where counterparties blame each other for these sorts of frauds and will be discussing how the blame game between the parties should be settled. He drew on this experience, together with other cases of cyber fraud, in publishing ‘A Practical Guide to Cyber Fraud Litigation’ earlier this year and is often asked to advise or act in such cases.

Examining the Issues of the Wirecard Accounting Scandal - Sam Roberts of Cooke Young & Keidan

Wed, 02 Sep 2020 20:00:00 +0100

We are very pleased to welcome Sam Roberts of Cooke, Young & Keidan, to present the fifth episode of the Tech Dispute Network’s ‘Need to Know Basis’ podcast series on the issue of the Wirecard accounting scandal. You can find the podcast here: https://disputes.tech/podcasts/

This series of podcasts aims to provide the key points on the most important cases and developments with a tech angle via short, digestible podcasts, presented by the leading experts in the field. You can find the podcasts at disputes.tech, as well as on Spotify and iTunes.

Wirecard, once a darling of the Fintech world and a rare example of a European champion in the sector, caused shockwaves around the financial world when it collapsed amidst an enormous accounting scandal in June 2020. Although the details are still unravelling, it appears that at the scandal’s heart was fraudulently inflated profits, falsified contracts and nearly EUR 2 billion in missing cash.

Sam Roberts is a Senior Associate and Solicitor Advocate at CYK specialising in Fintech disputes. Sam is a co-founder of the Tech Disputes Network and a regular contributor to industry and legal publications on technology and law.

We very much hope you enjoy this week’s podcast and thank you for your continued support of the TDN: if you would like to join the Network and ensure you receive details of our events and future podcasts, please click here. You can also follow us on Twitter and LinkedIn to keep up with the latest news on tech-related disputes.

Explaining AI in a Personal Data Processing Context - Terence Bergin QC and Quentin Tannock

Wed, 26 Aug 2020 20:00:00 +0100

We are very pleased to welcome Terence Bergin QC and Quentin Tannock, both of 4 Pump Court, to present the fourth episode of the Tech Dispute Network’s ‘Need to Know Basis’ podcast series on the issue of explaining AI, with specific reference to processing personal data in light of recent guidance published by the Information Commissioner's Office on this issue. You can find the podcast here: https://disputes.tech/podcasts/

AI systems, however otherworldly their brilliance may appear, are of course all built by developers with human fallibilities that are liable to be reflected in the systems they design and build. However, many forms of AI, in particular the in influential fields of machine learning and its sub-field of deep learning, are often notoriously resistant to permitting clear explanations of how the AI system came to a particular result. As autonomous decision-making becomes more and more mainstream, the potential danger is that an ever-increasing amount of the decisions in our day to day lives are liable to be taken by computer systems whose decision-making processes may be very hard or even impossible to interrogate in conventional ways.

Terence Bergin QC is one of the country’s pre-eminent tech disputes practitioners and has appeared in many of the most important cases relating to the supply of computer systems over the past 20 years, was twice awarded Chambers & Partners IT Junior of the Year before taking silk, and, together with Quentin, he has recently published on the subject of explaining AI. Quentin Tannock's past lives have included turns as a solicitor, a venture capital executive, and teaching at Cambridge University. He has a broad commercial practice, and particular expertise in tech and contentious IP, in which areas he may be among the most technologically-knowledgeable juniors at the bar.

We very much hope you enjoy this week’s podcast and thank you for your continued support of the TDN: if you’d like to join the Network and ensure you receive details of our events and future podcasts, please click here. You can also follow us on Twitter and LinkedIn to keep up with the latest news on tech-related disputes.

International Data Transfers Following the CJEU Decision in Schrems - Paul Schwartfeger

Thu, 20 Aug 2020 10:00:00 +0100

We are very pleased to welcome Paul Schwartfeger of 36 Commercial, part of The 36 Group to present the third episode of the Tech Dispute Network’s ‘Need to Know Basis’ podcast series on the implications for international data transfers of the recent CJEU decision in the well-known case, Schrems.

Many businesses rely on the ability to send customers’ personal data overseas in order to provide their services. However, the decision of the CJEU, which, in the words of the UK ICO has “wider implications than just the invalidation of the EU-US Privacy Shield”, means that these businesses should take another look at the arrangements they have in place.

Paul Schwartfeger is a domain expert on emerging technologies and has a particular interest in the interplay between technology and rights. He writes and advises businesses on various solutions in this space including blockchain, crypto, biometrics, AI and the Internet of Things.

The 'Need to Know Basis’ podcast series aims to provide the key points on the most important cases and developments with a tech angle via short podcasts of approximately 15 minutes in length, presented by the leading experts in the field. You can find the podcasts at disputes.tech, as well as on Spotify and iTunes.

Autonomous Vehicles and Practical Liability Issues - Lucy McCormick

Thu, 13 Aug 2020 00:00:00 +0100

This podcast concerns liability issues related to autonomous vehicles. Liability issues related to the output of various forms of AI are arguably among the most significant challenges currently facing lawyers, and no specific area is more of immediate relevance than that of driverless cars. For over a century, driving has been one of the world’s leading sources of both employment and accidents, profoundly affecting both society and the law. Indeed, the business of determining responsibility for the damage caused by driver mishaps may very well be the most common public point of contact with the world of civil disputes. However, as technology pushes people out of the driver’s seat, new ways of looking at motoring liability will be required. We are very fortunate to have Lucy McCormick of Henderson chambers to guide us through the key issues here. One of the bar’s most sought-after juniors for technology work, Lucy is also leading expert in this field, about which she has lectured extensively and authored a textbook for practitioners.

Patent Infringement on the Grounds of Public Interest - Michael Silverleaf QC

Mon, 29 Jun 2020 05:00:00 +0100

This podcast concerns the issue of patent infringement on the grounds of public interest, considered in light of two recent High Court decisions, Ipcom v Vodafone and Evalve v Edwards. In addition to being of importance to IP practitioners, the issue of patent infringement on the grounds of public interest may have, for example, potential to be of interest to policymakers and others in light of the Covid-19 pandemic, which might provide a motive for patent infringement in relation to novel, expensive and scarce pharmaceutical products. This podcast is presented by Michael Silverleaf QC of 11 South Square. Michael is one of the country's leading IP silks and has appeared in a large number of leading patent cases over the course of the last three decades, in addition to acting as Treasury counsel on patents-related matters for many years.