Three approaches to the governance of decentralised business models: Contractual, regulatory and technological

This chapter places decentralised business models (DBMs) in the context of three co-existent approaches to the governance of transactions - governance in accordance with the common law of contract, regulatory governance (by rules), and governance by technologies. In that context, two central questions are put. First, to what extent does the common law of contract have the resources to respond more adequately to the expectations of parties who engage in DBMs? Secondly, how are the courts likely to respond when the effects of technological governance employed by parties to DBMs are different to those effects mandated by the law of contract? With regard to the first question, it is argued that, although the law of contract does have some resources that would enable a more responsive approach to DBMs (recognising their contextual and relational features), we should not be looking to contract law or to the courts if what we need is a general regulatory solution. Rather, policy in relation to DBMs should be set by accountable governments and, to the extent that regulation needs a formal legal articulation, it should be in a legislative form. In relation to the second question, it is suggested that there will be some uncertainty and turbulence as technological governance is juxtaposed with (and found not be congruent with) the common law of contract. However, in the longer run, as a regulatory approach takes hold and as governance by technology is accepted, contract law is likely to be of diminishing significance to DBMs