In a paper written by Ellen Naudts dealing with ‘The Future of DAOs in Finance’ which was published by the European Central Bank[1] as part of its Occasional Paper Series,  it was held that regardless of the lack of progression made within the blockchain, and cryptocurrency sectors in recent times, Decentralised Autonomous Organisations (DAOs) remain relevant due to their significance in respect of decentralisation and digitalisation. On the other hand, the paper also gives clear insight into the challenges faced in terms of DAO regulation, while also considering the opportunities presented by such advancements.

In the realm of decentralised finance (DeFI), DAOs are code-run decentralised entities, which are found within the blockchain and are governed by smart contracts that reflect the operating agreement made between the parties, since they come into effect when predetermined conditions are met[2]. In turn this allows for greater efficiency through automation, and swifter decision making in the conventional corporate business model, which will not compromise the nature of DAOs whenever they are placed in a corporate structure.

A key takeaway that is highlighted by the paper is that many countries around the world are yet to regulate DAOs through specific local regimes. A situation which can be understood through the following conclusions put forward by the publication.

Since their inception, DAOs have been operating outside of a suitable regulatory framework, which has facilitated rapid improvement within the sector, but has also resulted in a lack of regulated standard within the sector. DAOs form part of a constantly evolving field which in turn makes it increasingly difficult to regulate sufficiently, since technological advancements radically outpace the development and implementation of sufficient regulation.

It was also noted that there is a lack of guidance through international regulatory frameworks which would allow countries across the world to regulate their position. It is for this very reason that only a few countries have enacted specific legislation on DAO regulation, while unfortunately other countries have failed to recognise the importance of specific regulation and have subjected DAOs to already existing laws.

Consequently, a lack of adequate regulation will expose the participants that make use of DAOs to significant risks[3].

The paper proposes that a regulatory framework on cryptocurrency related assets and services such as the EU Markets in Crypto-Assets (MiCA) Regulation, is to be established. It is in the authors view that this will force DAOs to reassess their position in terms of financial services legislation. It is also key to note that DAOs are not addressed sufficiently throughout the Regulation.

The conclusions put forward in the paper concern the importance of conducting research and seeking further clarification in an attempt to find a suitable way forward for all the parties involved. Regulators and policymakers must ensure that when a framework is established, it is to consider the unique nature of DAOs, while also ensuring that consumer protection and financial stability are afforded. One must also understand that this will not be an easy task since DAOs may be comprised of very complex governance structures, which will definitely pose as an additional hurdle for adequate regulation.

The paper emphasises the importance of cooperation between key stakeholders and regulators to come up with an independent regulatory framework, and to bypass the idea of trying to fit in the complex DAO structures into existing company registration frameworks, which were not promulgated with the intention of factoring in such technological advancements. The paper also proposes that DAOs need to make use of a legal form to contract with stakeholders and perform functions that are similar to those performed by regulated financial institutions.

Throughout the paper it is also emphasised that additional research and discussions must be carried out to analyse how DAOs will be integrated in a way which will allow them to comply with already established standards, guidelines, and recommendations. Therefore, there must be a multi-dimensional approach which is adopted when addressing the legal and regulatory implications in terms of DAOs.

The author also opines that with all the positives surrounding DAOs, one must be aware that since the concept is in its early stages users might be faced with challenges regarding voting rights, a lack of a clear legal personality which may unfortunately result in issues regarding accountability and liability. From a cybersecurity perspective, one must also note that smart contracts may pose drawbacks if they are implemented in rigid ways, especially whenever voting is required to fix an issue related to the code governing DAOs which in turn could expose it to potential breaches of cybersecurity.

For more information and assistance, kindly contact Dr Ian Gauci.




Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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