The nature of property in cryptoassets

Abstract

AbstractDisputes relating to cryptoassets have proliferated in recent years, along with the rise of the cryptoasset market. Some of these can be resolved using traditional principles of contract, tort or trust law, but proprietary issues raise particular conundrums. While cryptoassets have generally been accepted to be property, that is merely the starting point. To properly resolve proprietary disputes, it is necessary to provide a reasoned and robust explanation for why particular rules of title originally developed in the context of tangible property should apply. In turn, two foundational questions must be answered. First, what is the subject-matter of the property right in cryptoassets? And secondly, what is the proprietary effect of a blockchain transaction? These issues have received relatively little attention in the literature, which has focused on whether cryptoassets are property at all, and existing contributions (including the Law Commission's recent Consultation Paper on Digital Assets) which do engage these issues are far from reaching consensus. This paper critically examines those views and puts forward its own reasoned approach for the application of traditional rules of title to cryptoassets.