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Lehmann on National Blockchain Laws as a Threat to Capital Markets Integration

Matthias Lehmann (University of Vienna) has posted National Blockchain Laws as a Threat to Capital Markets Integration on SSRN. The paper, which appeared in the European Banking Institute Working Paper Series 2021, analyses the legislation adopted by a number of countries in Europe and the US for dealing with crypto assets and distributed ledger technology for investment purposes, the risks of fragmentation and divergent rules, and regional solutions towards a harmonised approach.

The abstract reads as follows:

Various states have started providing private law frameworks for blockchain transfers and crypto assets. The first acts have been adopted by France and Liechtenstein, while a commission of the British government sees no difficulties in extending property protection under the Common law to crypto assets. In the US, an amendment to the Uniform Commercial Code has been suggested, which has not stopped some States going their own, different way. The aim in all cases is to promote the use of modern distributed ledger technology and enhance investor protection. While these initiatives will increase legal certainty, they differ significantly. This has an important downside: there is a strong risk that the blockchain will be made subject to diverging legal rules. Similar to the world of intermediated securities, various national laws will need to be consulted to determine the rights and privileges of investors. This may increase transaction costs, thwart interoperability and produce thorny conflict-of-laws problems. Markets risk being fragmented into national segments, with an inevitable diminution of their depth and liquidity. As a remedy, this article suggests developing uniform rules for the blockchain. Before national legislators and judges once again divide the world through idiosyncratic rules, the private law of crypto assets should be harmonised to the highest degree possible. Uniform rules should ideally be forged at the global level, by fora like the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL), and the Hague Conference on Private International Law. In the absence of world-wide rules, uniformisation of private law should take place at the regional level, for instance by the European Union. The article makes specific suggestions as to how this can be achieved and what the content of those rules should be.

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