Articles Developments in PIL Scholarship

Takahashi on Blockchain-Based Negotiable Instruments

Koji Takahashi from Doshisha University Law School published on SSRN an article titled Blockchain-based Negotiable Instruments (with Particular Reference to Bills of Lading and Investment Securities). The article will be included as a chapter in the book: A. Bonomi, M. Lehmann (eds), Blockchain & Private International Law to be published by Brill.

The abstract reads as follows:

This paper will consider what should be the choice-of-law rules for the issues pertaining to blockchain-based negotiable instruments.

The concept of “negotiable instruments” refers to instruments representing relative rights (namely, entitlements that may be asserted against a certain person) such as rights to claim the performance of obligations and corporate membership rights. It depends on the applicable law which instrument qualify for this description. It covers, for example, “Wertpapier” defined by the Swiss Code of Obligations (Obligationenrecht) as any document with which a right is linked in such a way that it can neither be asserted nor transferred to others without the document (Article 965). The concept of “negotiable instruments” as used in this paper is broader than the same expression as ordinarily understood in English law. Under the latter, “negotiable instruments” ordinarily mean the instruments which allows a bona fide transferee to acquire a better title than what the transferor had. In this narrow sense, bills of lading are not negotiable instruments under English law though they are under German and Japanese law. As this paper will examine negotiable instruments in the wider sense, it will cover bills of lading and investment securities within its scope of analysis.

The concept of “blockchain-based negotiable instruments” refers to tokens issued on a blockchain which are meant to serve as negotiable instruments. This paper’s main focus is on blockchain-based bills of lading and blockchain-based investment securities (called crypto-securities). This paper will not make any particular mention of promissory notes, bills of exchange or cheques since no notable trend for issuing them on blockchains is observed as of the time of writing (August 2021) but they are not excluded from its scope. Intrinsic tokens (namely, tokens of self-anchored value) such as crypto-currencies are outside the scope of this paper since they do not represent any relative rights.

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