Articles by author
Does situs actually matter in disputes concerning bitcoin?
There has been considerable interest in the recent ruling of the High Court in Ion Science Ltd v Persons Unknown (unreported, 21 December 2020)1 as the first in which an English court has considered the question of situs in respect of a Bitcoin. Long described as an “intractable question”, many have taken the case to stand potentially for the proposition that the situs of a cryptoasset is the place where its owner is domiciled.
1 APR 2021The proposal for a regulation on markets in crypto-assets: disjuncts between regulatory and private law
This article considers the EU Commission’s Proposal for a Regulation on Markets in Crypto-Assets. Premised on what is submitted to be a disjunct in the approaches taken to regulatory and private law rights and obligations, it considers the consequent private law issues arising in misrepresentation, negligence, proprietary interests, and private international law.
1 JAN 2021Hacked crypto-accounts, the English tort of breach of confidence and localising financial loss under Rome II
In this article the authors consider Fetch.AI Ltd v Persons Unknown (15 July 2021, Unreported), an interim application made ex parte and heard in private, which demonstrates a concerning potential for divergence between the English and EU courts on the application of the Rome II Regulation.
1 NOV 2021Baking, staking, Tezos and trusts: crypto sale and repurchase transactions analysed by the High Court
In the recent case of Wang v Darby [2021] EWHC 3054 (Comm), the High Court considered the legal characterisation of an agreement pursuant to which the claimant and defendant exchanged fixed quantities of XTZ (Tez) and BTC (Bitcoin) with the understanding that there would be a mutual restoration following an agreed period of two years; and that the defendant would use the XTZ transferred to him by the claimant during those two years to participate in maintaining the Tezos blockchain, accounting to the claimant for any profits made thereby upon restoration. This article considers three issues arising from the determination of several applications made during the course of the proceedings: (i) whether cryptoassets are fungible; (ii) whether non-fungible cryptoassets may be the subject of a vendor-purchaser constructive trust; and (iii) how stake-bonding and comparable agreements over cryptoassets as investment assets should be characterised in law.
1 FEB 2022Cryptoassets as property under English Law: surveying the present lie of the land
In this article, Amy Held draws attention to two ways in which fundamental principles of English property law are being distorted in the present discourse on crytpoassets. First, English law is not really prescriptive as to what “things” fall within the scope of property law or “can be property”, but, rather, is concerned with rights in relation to things. The statement, therefore, that cryptoassets “are property” lacks any real meaning. Second, English law has no real concept of “ownership” as distinct from “possession”. Given that English law tends to focus on the latter, it remains unclear what it means for anyone to assert that they are the “owner” of a cryptoasset, how “ownership” is proved and established, and how the right of “ownership” is vindicated in a dispute.
1 SEP 2022Cryptoassets as property under English law Pt II: ownership, situs and the circular question of jurisdiction
Judgment was recently handed down by the Court of Appeal in Tulip Trading Limited v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83. This article focuses on two issues arising from the basis upon which Tulip Trading Limited’s case and the issue of jurisdiction proceeded in the Court of Appeal: (i) who is the “true owner” of the bitcoin; and (ii) the circular nature of founding jurisdiction.
1 APR 2023
