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The Law Applicable to Electronic Securities: A New German Conflicts Rule

This post has been drafted by Dr. Felix M. Wilke, University of Bayreuth, Germany.


A new contestant has entered the ongoing debate about the law applicable to Electronic Securities and/or in the blockchain context. On 10 June 2021, the new German Act on e-Securities (Gesetz zur Einführung von elektronischen Wertpapieren, eWpG) entered into force. Its § 32 contains a special conflict-of-laws rule.

The following is a sketch of my first impressions and potential implications of the new rule. Any input is very much welcome!

The German E-Securities Act in General

The substantive scope of the eWpG somewhat belies its broad title. Far from being about all types of e-securities one can imagine, it only concerns bearer bonds (§ 1 eWpG). The act introducing the eWpG, however, also contains changes to the Capital Investment Code (Kapitalanlagegesetzbuch, KAGB), providing for the possibility of issuing electronic shares in investment funds.

It should also be noted that the e-Securities Act is no genuine piece of blockchain legislation. The word “blockchain” does not appear in it. The Act is not limited to securities recorded in a blockchain, nor would all blockchains necessarily meet the requirements of the Act.

Indeed, parts of the act merely concern centralized registers for e-securities to be maintained, e.g., by central securities depositories. Here, the main difference to current practice seems to consist in dispensing with the need for the depository to safekeep even only one paper (global) certificate.

Yet when other parts of the eWpG mention registers which are supposed to be decentralized as well as forgery-proof (sic) and to offer protection against any subsequent modification of recorded information (§§ 16(1), 4(11) eWpG), it becomes obvious that blockchain/distributed ledger technology can play an important role for so-called “crypto securities”. If one looks closely at the changes to the KAGB, one comes across an opening for distributed ledger technology for shares in investment funds, as well: § 95(5) KAGB.

Core aspects of the Act are the publicity, the contents, and the conditions for changes of registers for e-securities. A litany of (technical) details are delegated to the German Federal Ministry of Justice and Consumer Protection and the German Federal Ministry of Finance. One provision that will certainly raise an eyebrow or two is § 2(3) eWpG: It sets forth that e-securities are to be considered “things” within the meaning of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Thus, in principle, the rules for corporeal objects will apply to an incorporeal asset.

The New Conflict-of-Laws Rule

32 eWpG concerns the applicable law. I would tentatively translate it as follows, sticking closely to the structure and word order of the German original:

(1) To the extent that § 17a Securities Account Act does not apply, rights regarding an e-security and dispositions about an e-security are governed by the law of the State under whose supervision the register office is in whose e-securities register the e-security is recorded.

(2) If the register office is not under supervision, its seat is decisive. If the seat of the register authority cannot be determined, the seat of the issuer of the e-security is decisive.

The Subject Matter

32 eWpG applies to rights regarding and dispositions about e-securities. Due to the limitation of the entire Act, one might assume that the conflict-of-laws rule will only apply to electronic bearer bonds (under German law). Yet as the provision has clearly been designed as an omnilateral provision, and considering that the definition of an e-security is much broader (§ 2 eWpG), it is conceivable that the conflict-of-laws rule encompasses more securities than that the Act in which it is found. This, of course, would be a phenomenon well-known to private international law scholars, but perhaps not-so-well-known in other circles.

In any case, the express reference to § 17a Security Account Act (Gesetz über die Verwahrung und Anschaffung von Wertpapieren, DepotG) has a limiting effect – whose impact is not obvious. The bill had not included this proviso.

§ 17a DepotG is Germany’s transposition of Article 9(2) of the Settlement Finality Directive (SFD). If the rule(s) of SFD were to be interpreted broadly to encompass modern digital assets (not an easy task: see Matthias Lehmann’s thoughts on this blog), a rule like Germany’s would likely have to be interpreted in conformity with the SFD. Not that we did not already have enough discussions about § 17a DepotG, including about its conformity with the SFD, in the first place…

What is more, the Security Account Act itself was changed along with the introduction of the eWpG, extending the meaning of securities for the purposes of the former to e-securities under the latter. This should affect the scope of § 17a DepotG, shaping the understanding of § 32 eWpG in turn.

My first idea is that § 17a DepotG will be the relevant conflict-of-laws provision for e-securities in a collective deposit, and that § 32 eWpG will apply to the rest.

The Connecting Factors

The law of the State with supervision over the respective e-securities register office governs rights in and dispositions about an e-security under paragraph 1.

At first sight, this might seem to be a rather easy rule. I would submit, however, that it actually implicates a tricky analysis. In order to correctly apply the rule, one seems to have to look for (typically unilateral) rules of competence for financial supervision authorities.

First, it will not always be easy even to ascertain the respective rules (at least for foreign States).

Second, their connecting factors are likely to differ from State to State: e.g. seat of an institution to be supervised vs. place where it carries out business activities. This could lead to an accumulation of applicable laws that somehow would have to be resolved.

And what if a foreign register without State supervision is at issue? Under the bill, this was an open question. The final version now has a second paragraph, making the seat of the register office a subordinate connecting factor. But why does the provision not again refer to “State” supervision?

If the seat of the register office cannot be determined, either (also in cases where there is no register office?), the second clause of the second paragraph employs the seat of the issuer of the e-security as the connecting factor. The substantive part of the eWpG contains a similar approach, in that the issuer of an e-security will be treated as the register office if the issuer does not designate such an office in relation to the bearer (§ 16(2) cl. 2 eWpG).

Outlook

The new Act and its conflict-of-laws rule offer plenty of food for thought. Expect the first articles and even rule-for-rule commentaries to pop up in the near future. Because of the obvious connections between the conflict-of-laws rule to the substantive provisions of the Act, it will not always be easy to tell apart where private international law is supposed to be limited and where it can strike out on its own.

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