Digital assets and electronic trade documents in private international law
Reviewing how private international law operates in the context of electronic trade documents and digital assets.
Problem (Back to top)
When parties to a private law dispute are based in different countries, or the facts and issues giving rise to the dispute cross national borders, questions of private international law arise. In which country’s courts should the parties litigate their dispute? Which country’s law should be applied to resolve it? How can the judgment be enforced in another country? Private international law is the body of domestic law that supplies the rules used to determine these questions.
Problems of private international law are by no means a recent phenomenon. The conditions that give rise to problems of private international law date from at least the fourth century BC. The problems are, however, becoming more difficult and increasingly pervasive because modern technologies challenge the territorial premise on which the existing rules of private international law have been developed.
In this respect, the advent of the internet in the late 1980s has been a catalyst of socio-economic change that has posed significant challenges for private international law. More recent innovations, such as crypto-tokens and distributed ledgers, add novel and arguably intractable problems to these existing challenges.
Our project has a particular focus on crypto-tokens, electronic bills of lading, and electronic bills of exchange. This is because these assets are prevalent in market practice while also posing novel theoretical challenges to the methods by which issues of private international law have traditionally been resolved.
Project (Back to top)
In recent years, a significant aspect of the Law Commission’s work has focused on emerging technologies, including smart legal contracts, electronic trade documents, digital assets, and decentralised autonomous organisations (DAOs). Our work has shown that these technologies raise issues of private international law.
In our final report and Bill for work on electronic trade documents, we noted that there are private international law difficulties associated with electronic trade documents, in particular the inherent difficulties in determining the geographical location of the documents.
However, we recognised that many of these issues arise in relation to digital assets more broadly. During the passage of the Electronic Trade Documents Act 2023, we committed to considering these issues in a more general project on private international law and emerging technology.
In 2022, the UK Government asked the Law Commission to conduct this project considering how private international law rules will apply in the digital context. In particular, the Law Commission is asked to consider the disputes which are likely to arise in the digital context (including contractual, tortious and property disputes), and make any reform recommendations it considers necessary to Government.
Call for evidence
In February 2024 we launched a call for evidence to help us identify the most challenging and prevalent issues of private international law that arise from the digital, online and decentralised contexts in which digital assets and electronic trade documents are used.
Next steps
We have since published FAQ documents with more detail on the operation of private international law in the context of electronic trade documents and digital assets respectively. We are now working on a consultation paper to be published in the first half of 2025.
Documents (Back to top)
Digital assets and electronic trade documents: FAQs
Updates (Back to top)
Call to evidence opens: 22 Feb 2024
Call to evidence ends: 16 May 2024
Contact (Back to top)
Contact us to be added to the mailing list.
Email: conflictoflaws@lawcommission.gov.uk
Related projects (Back to top)
Crypto-assets and other digital assets