LAW & TECHNOLOGY

UNIDROIT WORK AND INSTRUMENTS IN THE AREA OF LAW & TECHNOLOGY

From 2015-2018, several Unidroit Member States sent proposals for the development of a model law on several related topics ranging from business informatics to distributed ledger technology (including blockchain) and inheritance of digital properties for inclusion in the 2020-2022 Work Programme. A similar proposal relating to the legal aspects of smart contracts and artificial intelligence was presented to UNCITRAL and Unidroit and they subsequently organised two joint exploratory workshops, in May 2019 and March 2020, respectively.

After approval at medium priority at the UNIDROIT General Assembly’s 78th Session, the Unidroit Governing Council in its 99th Session approved the establishment of a Unidroit Working Group a part of 2020-2022 Triennial Work Programme with the objective to develop a future legal instrument containing principles and legislative guidance in the area of private law and digital assets.

Broadly, the Project aims to provide legislative guidance and to develop principles relating to the legal nature, transfer and use of digital assets. This would include a legal taxonomy of digital assets and an analysis focusing on proprietary interests while considering issues such as secured transactions, applicable law in cross-border transactions, insolvency, and the legal position of intermediaries. The guidance and principles would be neutral, seeking to accommodate diverse types of assets and technologies across different legal cultures. The principles identified would embody best practices and international standards and enable jurisdictions to take a common approach to legal issues arising from the transfer and use of digital assets.

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The work on Digital Assets and Private Law will also seek to create synergies with other UNIDROIT projects and existing instruments, as well as carefully coordinating with UNCITRAL’s work in this field, especially in developing a taxonomy of digital assets.

In terms of the relationship with existing UNIDROIT instruments, important aspects envisaged in the Digital Assets and Private Law Project concern, amongst others, the legal analysis of holding, transfer, and the taking of security over digital assets, issues relating to the provision of digital asset custody services, and issues relating to the insolvency of the custodian of digital assets. These items naturally link with the Institute’s work in capital markets and, more precisely, in the area of intermediated securities, providing crucial connections with existing instruments such as the UNIDROIT Convention on Substantive Rules for Intermediated Securities (2009) and the UNIDROIT Legislative Guide on Intermediated Securities (2017).

Regarding synergies with other projects of the current Work Programme, there is a natural fit with the Best Practices of Effective Enforcement Project, which will undertake the analysis of the impact of new technologies on enforcement as one of its main objectives. This constitutes a natural opportunity for cross-fertilisation between the two projects, and, to this end, a number of experts involved in the Working Group on the Digital Assets Project have already been contacted to help identify concrete examples of the application of new technologies in the context of enforcement. Additionally, a workshop organised on 21 September 2020 on Enforcement featured a panel on the impact of new technologies on enforcement with presentations delivered on a taxonomy of technological applications in enforcement proceedings, smart contracts and enforcement, and enforcement and digital assets.

Another area which presents an opportunity for cross-cutting work is the joint UNIDROIT – UNCITRAL project concerning a Model Law on Warehouse Receipts. There is a direct relationship with this project which examines the issuance and transfer of electronic warehouse receipts for goods stored in warehouses. In this connection, one of the categories of digital assets to be examined in the Digital Assets Project concerns digital tokens which are linked to an external, non-digital asset. By fostering exchanges between the two Working Groups, the legal analysis undertaken in the context of both projects would be enriched. Moreover, should the work in the project to draft a Model Law on Factoring cover receivables issued in the form of digital assets, the cross-fertilisation between both projects would also bring about an important benefit.

Additionally, this project also presents synergies with a project on Best Practices in the Field of Electronic Registry Design and Operation which is run by the Cape Town Convention Academic Project, in partnership with the Unidroit Foundation, Aviareto, and the Aviation Working Group. This project is developing a best practice guide for electronic registries, focused on collateral registries, which may be an important element of a system of digital assets, particularly when used as collateral.