2023年10月2日
Disputes Quick Read – 22 / 101 观点
On 28 June 2023 the Law Commission released its final report on digital assets setting out its recommendations for reform.
The key theme of the Report is that the courts of England and Wales are well equipped to deal with digital asset disputes. The Law Commission therefore recommends that save in respect of a few areas (addressed below), the legal developments needed to meet the challenges posed by digital assets should be left to the common law.
The key changes proposed by the Law Commission are:
While there have already been a number of English court decisions recognising certain digital assets as property , the Law Commission concluded that it would be helpful for the government to introduce legislation confirming that digital assets can attract personal property rights. The Law Commission proposes that such assets would fall within a "third category of things".
A digital asset or "third category of thing" would need to satisfy the following criteria:
The Law Commission concluded that for most disputes involving digital assets, there will be a cause of action available. For example, if there has a been a breach of contract concerning a digital asset, then a claim could be brought for damages in the usual way. Or, if digital assets have been misappropriated as a result of fraud of other wrongful interference, a claimant would be able to pursue personal and/or proprietary claims against the wrongdoer or recipient of the digital asset.
However, the Law Commission has identified a couple of gaps in the current law:
Rather than trying to expand the scope of liability under existing torts, the Law Commission recommends that the common law develop specific and discrete principles of tortious liability, which would draw on some of the elements of the tort of conversion, to deal with wrongful interferences with digital assets.
The Law Commission acknowledges that it would be an enormous task for the judiciary to keep up to date with all the technological developments in this area. It therefore recommends that the Government creates or nominates a panel of industry-specific technical experts, legal practitioners, academics and judges who would provide non-binding guidance to the judiciary on digital asset systems and how they operate, or the digital assets market more broadly.
Other future developments may include the creation of a specialist court or list which caters specifically to crypto claims. At the recent Annual Crypto in Disputes Conference, His Honour Judge Pelling expressed the view that a specialist list could be established quickly and at limited cost. This new court or list could be modelled on the Dubai International Financial Centre's (DIFC) new Digital Economy Court (DEC), which was formed in 2021 and has adopted a set of industry-first specialised rules.
If you would like to discuss any of these developments in more detail, please contact: Georgina Jones, Emma Allen, Samantha Brendish, Laurence Lieberman, Stephen O'Grady.
Look out for our future updates on developments in this area here.
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