Legal Cheek’s Post

I am excited to share my first article featured in the Legal Cheek Journal, "Redefining property in the digital age". Thank you Legal Cheek for the opportunity to contribute to this important conversation on the future of property law and regulation in the digital age. #DigitalAssets #Crytocurrency #PropertyLaw #LegalInnovation #LCJournal

For all my Norfolk legal and Norfolk & Norwich Law Society connections, booking is still open for the NNLS & UEA Law Lecture “Laws are like sausages… it’s best not to see them being made…”    Event: Of Digital Assets & Sausages: Confessions of a Law Commissioner. Date: Tuesday 30th April 2024 Reception: 17:45 Talk start: 18:30 The Enterprise Centre LT Booking Link - In the comments    How are laws made? | How is the law reacting to new technologies? | What is the role of a Law Commissioner? | How do digital assets differ legally from traditional forms of property?   We are excited to invite you to this year's Earlham Lecture, featuring Professor Sarah Green, Law Commissioner for Commercial and Common Law. Join us to delve into the intricacies of law-making in the digital era and the significant impacts of new technologies on legal frameworks.   Professor Green was appointed as Law Commissioner for commercial and common law in January 2020, for a five-year term. The talk will reflect on her four years' work at the Commission, conducting research and undertaking consultations in order to make recommendations for consideration by Parliament, and more specifically, in developing key policy proposals.   The Commission's 2022 report recommended the legal recognition of trade documents such as bills of lading and bills of exchange in electronic form, and was implemented in the Electronic Trade Documents Act 2023, now in force. In 2023, the Commission reported on digital assets, used as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights. It is currently consulting on draft legislation that would recognise some digital assets, including crypto-tokens and non-fungible tokens (NFTs), as a third category of personal property. The Commission has also issued a call for evidence, to gain a better understanding of the most challenging and prevalent issues that digitisation, the internet, and distributed ledger technologies pose for private international law, with a particular focus on crypto-tokens and electronic trade documents.   #Norfolk #Norwich #LawLecture

Judicial confirmation that the Law Commission of England and Wales' crypto bill brings no clarity to dispute resolution. Maitland Chambers posted an interesting note on D’Aloia v Persons Unknown, Bitkub [2024] EWHC 2342 (Ch). The headline note according to them: "The High Court concluded that USD Tether did constitute property for the purposes of English law as follows: [5] USDT attract property rights under English law. It is neither a chose in action nor a chose in possession, but rather a distinct form of property not premised on an underlying legal right. It can be the subject of tracing and can constitute trust property in the same way as other property." First, the decision goes to show just how difficult it is to recover "stolen" cryptoassets if defendants are minded to contest an action as Bitkub was. Coming on the heels of Piroozzadeh v Persons Unknown [2023] EWHC 1024 (Ch) (https://lnkd.in/gbeb5NjP), defrauded/hacked cryptoasset holders must now seriously consider whether litigating to recover said assets is an exercise in throwing good money after bad. Secondly, the judge gives one of the best explanations of why Hong Kong textile quotas are third things per Attorney-General of Hong Kong v Nai-Keung [1987] 1 WLR 1339. Supposedly, they involve mere expectations and not rights. The problem is that it doesn't explain why such expectations are not mere spes (ie hope) and hence not property. The answer must be that the expectation is grounded in public law legitimate expectations that carry rights. You cannot have property (in the legal, not layman's, sense of the word) without rights. Thirdly, the learned judge cites my paper with Peter Watts KC and whilst disagreeing with us that cryptoassets can be accommodated as things in action, notes: "That is not to say that I disagree with what Professor Watts and Professor Lowe [sic] say about there being a right to cause the system to operate. That is not a point that arises in this case and so I express no view on it. But I would see any such rights as being in addition to, not the basis of, the recognition of USDT as property." This ties into my second point: rights distinguish between mere spes and property. On the judge's analysis, it is not clear what expectations are property and what expectations are spes. Finally, the dagger in the heart of the Law Commission's bill: "The Law Commission's draft Property (Digital Assets etc) Bill does not seek to say whether crypto-assets, or certain classes of them, are property. It simply clarifies that something can be property that is neither a chose in action nor a chose in possession. Assuming that Bill became law, it is not clear what the judge would be expected to do, given that Parliament would have spoken but would not have resolved the types of concerns that Professor Grower and Professor Stevens raise." Or as I put it, much ado about nothing. The full judgment is available at https://lnkd.in/gmmVn_26. https://lnkd.in/gigA-iXm

The Global Legal Post has today launched the latest addition to the Law Over Borders comparative guide series, on the emerging legal frameworks for cryptoassets #legalnews #crypto https://lnkd.in/dAhyg4Q8

In this latest post on our Litigation Notes blog, Chris Bushell, Rachel Lidgate, Ajay Malhotra, Charlie Morgan, Philip Lis and I outline the Law Commission's recent publications on digital assets. The first is a detailed consultation on private law issues which explores the unique challenges posed by such assets in light of the territorial underpinning of private international law - a fascinating read, if not a quick one (at 260 pages). The second is shorter but no less significant, proposing draft legislation to confirm and support the common law's recognition of a "third category" of personal property. #hsfdisputes #disputeresolution

Episode 2 features Professor Sarah Green who has just finished a four year tenure at the Law Commission of England and Wales as Law Commissioner. Sarah’s law reform work includes the Electronic Trade Documents Act 2023, advice to the Government on Smart Contracts, and preparing legislating to ensure that English Law can accommodate Digital Assets. Sarah and Matt Green speak about the journey of digital assets, including cryptoassets, becoming “property” at common law to where we are now, with legislation looking to define "things" as property, using a negative definition proposed by the Judiciary: 👉 UK Jurisdiction Taskforce’s Legal Statement on Cryptoassets and Smart Contracts of 18 November 2019 which argued there should be no bar to cryptoassets being property at law, and for smart contracts to be legally binding: https://lnkd.in/ey-qUZc7 👉 AA v Persons Unknown: Re Bitcoin, which relied on that paper, and in which the Judge confirmed “I consider that a cryptoasset such as Bitcoin is property” https://lnkd.in/evRX-rgJ 👉 Law Commisison’s Digital Assets Call to Evidence April 2021, including some of Sarah’s favourite and notable feedback from the industry: https://lnkd.in/eAAVsU5w 👉 Digital Assets Consultation Paper of 28 July 2022, which proposed a third category of property called a Data Object, considering the inclusion and status of data, even considering absurd Matrix-esque environments where everything is data: https://lnkd.in/eYF6EF5R 👉 The Law Commission’s Digital Assets Final Report of 28 June 2023, which removed the need for this new property definition to include “composed of data” and changes the definition to recognise property where “merely by reason of the fact it is neither a thing in action nor a thing in possession”: https://lnkd.in/e89X4Fnm 👉 Finally the Supplemental Report and Draft Bill (now the Property (Digital Assets etc.) Bill) that a “thing” can be property, with the words “digital” and “electronic” as references: https://lnkd.in/ez225yyj 👉 Matt questions: - the Law Commission’s recommendation that important academic and practical issues are played out in Court, which is often infrequent, given a client’s limited resources to litigate through to answer, when there is an opportunity to answer them now; - what rivalrous means, given Matthew Kimber Pokémon references; - whether data is property; and - more about D2 Legal Technology and the problem it looks to solve In this clip Sarah considers the reason why the Bill used the term “things” and the Judiciary’s plea for flexibility in legislation to allow them to properly create and future proof common law. Full video 🎥 and audio 🎧 below: YouTube: https://lnkd.in/eHC4Dr-a Spotify: https://lnkd.in/eDFWZKTN Apple: https://lnkd.in/eFQX863X #digitalassets #cryptoassets #commonlaw #lawcommission #carbontokens, #cryptocurrency #digitalfiles #data #digitaltecords #domainnames #cryptotokens

In this episode of In Early Podcast, Sarah Green and I consider the journey of how digital assets became "property" at law in England and Wales, running through relevant papers, consultations, and common law, including from the UK Jurisdictional Taskforce LawtechUK and Law Commission of England and Wales. Full video 🎥 and audio 🎧 below: YouTube: https://lnkd.in/ed77_xUM Spotify: https://lnkd.in/evm_8MqS Apple: https://lnkd.in/enDxPQti #digitalassets #cryptoassets #commonlaw #lawcommission #carbontokens, #cryptocurrency #digitalfiles #data #digitaltecords #domainnames #cryptotokens D2 Legal Technology, Matthew Kimber, Lawrence Stephens

Are crypto-assets personal property? Which country's courts should hear disputes relating to digital assets? Which laws should apply? The Law Commission is consulting on these important issues. See our short blog below. Analysis with Emma Probyn, Christine Simpson and Gustav Brincat #digitalassets #litigation #freshfields #lawcommission https://lnkd.in/e5Ert2bg

The U.K.’s Law Commission recently issued a Call for Evidence to examine the question of “in which country’s courts should the parties litigate their dispute, and which country’s law should be applied to resolve it” when dealing with international digital assets disputes. Separately, the Commission also issued a short consultation following its Digital Assets report in June 2023 on draft legislation to confirm the existence of a “third” category of personal property, which would encompass crypto-tokens and other assets. To learn more about this draft bill, click image to read this advisory by Jessica Lee and Menelaos Karampetsos.

D2 Legal Technology (D2LT) has announced that Professor Sarah Green has joined the organisation as head of its digital assets and electronic trade documentation practice, following an illustrious term as Law Commissioner for Common and Commercial Law at the Law Commission of England and Wales. #appointments #commerciallaw #lawcomission #bcrnews