I've been drafting contracts with a heavy focus on cryptocurrency since 2014. This blog post gives a few tips I've picked up over the years.
Types of Contracts
Cryptocurrency is new, and many companies don't have the sorts of brands that customers can automatically trust. It's probably more likely than in other fields that users will actually read the end user license agreement or scrutinize the contract. For B2B deals, it's possible that the other side won't be represented or will have less than full representation in the matter, so it's extra important to make the agreement clear and concise.
The agreement should be made to be read, and as it's read, the person reading it should be even more sure that they want to do the deal. Contracts are an extension of the business, not an extension of the lawyer. They should incorporate the company's particular brand and they should be sales documents. This means drafting them using the company's fonts, colours, letterhead, etc., and these small differences can make for a more appealing contract.
Cryptocurrency is complicated enough without overly complex drafting or boilerplate. Deals should be as simple as they can be, and as clear as they can be. This is especially important if the audience is not the other side's legal counsel.
Deals that are long and complicated are less likely to be signed quickly. There's always a trade-off in terms of over-drafting vs. getting a deal done. What is the client's priority? Are they willing to put forward less aggressive terms in their standard agreement so that the agreement is less negotiated? That can save money and improve deal speed. Clients appreciate lawyers who help get deals done faster, and this is especially valuable for startups.
It may be worth including an explicit method as to how prices will be calculated. There are many reference prices available for cryptocurrency, and they don't always agree. But reference prices are generated by startups in the space that may not be there tomorrow, so it's always good to have a fallback. The fallback could be another reference price, or a method as to how another one will be agreed upon. In my experience, this is usually not very contentious because many deals use well-priced major cryptocurrencies, but a little bit of drafting can ensure that payments go smoothly.
Contract drafting in the cryptocurrency space can sometimes be done only with reference to the company's regulatory position. Some contracts include sloppy language that may undermine the client's regulatory positioning if challenged. Or worse, might indicate to the customer or business something that isn't true (e.g. "investment" vs. sale, or service vs. user-installed software). The wording and must align with the legal strategy and understanding. The more clear the language, the less the contract might be misunderstood by the other side or potential regulators that may be curious to know what's going on. Expect that even B2B contracts may be disclosed to third parties.
Certain risks are more common in crypto than in other industries. For example: disputes over code quality and security are relatively common, and disputes about deal mechanics are relatively common (because it's a new field so the way that deals unfold may be surprising.) Overseas companies are common, which means extra thought needs to be given to jurisdictional issues and remedies.
Cryptocurrency is a dynamic field that requires the lawyer to ask even more questions about how the deal works. For general counsel or private lawyers with a stable client base, this isn't an issue, but for lawyers in private practice with a volume-based business, this may mean slowing down a bit to make sure the contract is exactly what the client needs. A good contract avoids misunderstandings, represents the brand well, and closes more deals.