The Law Commission, a U.K. body which makes suggestions for legislative reform, has published a call for evidence on the operation of English private international law (conflicts of law rules) in relation to digital assets and "electronic trade documents" (trade documents like bills of lading and bills of exchange that are in electronic form).
The Law Commission seeks input on the international jurisdiction (i.e., ability to hear a dispute) of the courts of England and Wales over private law disputes involving digital assets and decentralized documents. The location of such cases is difficult to determine given the decentralized nature of the assets involved. Areas for particular consideration include:
The Law Commission is also seeking views on the law applicable to a dispute involving digital assets and electronic trade documents. There is a presumption in the courts of England and Wales that English law will be applied to the substantive matters brought in the English courts; a party wishing to have a matter governed by foreign law must plead that a foreign law applies, based on English conflicts of law rules, and then show on the balance of evidence that foreign law differs from English law on the relevant topic. This can be a high barrier. In disputes over digital assets and decentralized documents, there may be no obvious territorial connecting factor between the issue in dispute and a single applicable governing law. The Law Commission suggests various solutions to the problem, considering a range of different possible scenarios.
Responses to the consultation should be submitted by May 16, 2024. The Law Commission expects to publish a full consultation paper later in 2024.
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