Articles by author
The European Commission’s Digital Finance Package from the perspective of private law
This article examines the interplay between national (private) law and the legislative measures subsumed under the European Commission’s Digital Financial Package (DFP or the Package). For the reasons explained in this article, the Package may not attain, in full, its harmonisation and single market policy objectives, to the extent that it leaves the question of the legal attributes of crypto-assets to the discretion of national legislators and to the different legal traditions of the EU member states in matters of private law, rather than settling them centrally, possibly by reference to a limited-purpose European private law.
1 FEB 2021Non-fungible tokens: select legal issues
Non-fungible tokens (NFTs) have captured investor attention as an emerging asset class, with the value of the relevant market estimated at US$10.7bn (third quarter of 2021). Although there is nothing new about their underlying technology (blockchain), what is novel is its use by artists, athletes, and public figures to commercialise their creative work, and to monetise their brand name. We explore three of the plethora of legal issues that NFTs throw up: (i) the nature of NFT holders’ rights; (ii) whether NFTs can qualify as “securities”; and (iii) the extent to which they are covered by crypto-asset-specific regulation in select jurisdictions.
1 FEB 2022Financial sanctions and the case for digital central bank money
Central banks around the world have been contemplating the creation of central bank digital currencies (CBDCs)1 for the best part of the last five years, with some of them already experimenting, at the time of writing, with pilot schemes. This article explores to what extent the armed conflict that recently erupted in Europe’s periphery strengthens, as some have argued, the case for their issuance so as to better enforce financial sanctions imposed on deviant state actors or, instead, creates risks of currency retaliation as well as jeopardising the credibility of public money and its issuers.
1 SEP 2022Retail Central Bank Digital Currencies: core assumptions and legal implications
This article explores two of the main assumptions underlying the public reflections of central banks on the topic of retail CBDCs, namely that these would qualify as money and would represent a claim on the balance sheet of their issuing central bank. The article also draws attention to the importance of understanding the impact on retail CBDCs of the legal analysis of different CBDC models.
1 JUN 2023Central Bank Digital Currencies, anonymity and privacy: squaring the circle
Concerns around user anonymity and privacy have morphed into key public demands on central banks as the latter reflect on, and explore, the eventual issuance of retail central bank digital currencies (CBDCs). Some of the relevant debate is presented in terms of the need for central banks to balance their data protection duties, as CBDC issuers, against the need to uphold the payment system’s integrity from the dual risks of money laundering and the financing of terrorism. For the reasons explained in this article, the apparent tension between privacy protection and AML/CFT regulatory compliance – portrayed, by some, as the basis for painful but necessary compromises at the expense of privacy – may be somewhat exaggerated. As explained, below, retail CBDCs are not inherently worse-off, on the privacy front, compared to established electronic means of payment. By way of introduction, we briefly introduce the related (but distinct) concepts of anonymity and privacy, which are crucial for an understanding of the topic addressed in this article.
1 FEB 2024
