Private Law Theory

INTRODUCTION
Recent years have seen rapid development of new methods of controlling data so as to form tradable and valuable assets, largely through the use of a combination of distributed ledger technology (DLT) and blockchain technology. Markets in these assets, and different use cases, developed so fast that domestic law in most countries has struggled to keep up with the new issues raised. Much of the focus has been on managing the risks arising from the holding of, and trading in, these assets, and the extent to which regulatory law should and could protect market participants and the wider economy. However, a new, or potentially new, asset class also raises issues of private law. It is not clear to what extent existing private law can, and does, apply to such assets and the transactions in them, and their features give rise to certain novel questions which may demand innovative thinking to resolve them. To the extent that these private law issues have been addressed internationally by domestic legislation or in the courts, there has been a lack of consistency. Given the near inevitability of cross-border transactions in these assets, it is clearly desirable that the relevant domestic private law follows similar principles in order to reduce frictions and increase legal certainty.

Louise Gullifer and Ignacio Tirado, Proprietary Rights and Digital Assets: A ‘Modern Proposal’ from a Transnational Law Perspective, 87 Law and Contemporary Problems 211-232 (2025).