PREPARATORY WORK

STUDY LXXXII - DIGITAL ASSETS AND PRIVATE LAW PROJECT

In 2015, UNIDROIT received a proposal from the Ministry of Justice of Hungary suggesting the development of model laws in the domain of ‘business informatics’. This was followed by a joint proposal from the Ministry of Industry and Trade of the Czech Republic in 2016 and 2018, suggesting that UNIDROIT include topics relating to distributed ledger technology (including blockchain) and inheritance of digital properties in the 2020-2022 Work Programme.

A similar proposal relating to the legal aspects of smart contracts and artificial intelligence was also presented to UNCITRAL, and it was decided for both organisations to explore these domains and identify specific areas in which work could be undertaken. To this end, UNCITRAL and UNIDROIT organised two joint workshops, in May 2019 and March 2020, respectively. The UNIDROIT General Assembly, at its 78th session in December 2019, approved the inclusion of a project in the area of Artificial Intelligence, Smart Contracts and Distributed Ledger Technology (DLT) in the UNIDROIT Work Programme for the 2020-2022 triennium at a medium priority. Following the mandate received, the Secretariat produced a more refined scope of the project and presented the proposal focusing on Digital Assets and Private Law. At its 99th session in September 2020, the UNIDROIT Governing Council approved the project for the 2020-2022 Triennial Work Programme as a high priority project.

On the basis of feedback received from the Governing Council, and with a mandate to do so, the Secretariat set up an Exploratory Working Group, chaired by Professor Hideki Kanda. The Group held five meetings between July and September 2020 and prepared a Preliminary Issues Paper which served as the basis of the Issues Paper which the formally-constituted Working Group for this project would consider.

The UNIDROIT Secretariat, with the assistance of the Exploratory Working Group, organised an Exploratory Workshop on Digital Assets and Private Law which was held on 17 and 18 September 2020 in a hybrid manner, prior to the second meeting of the Governing Council at its 99th session. The Exploratory Workshop presented an overview of the issues identified by the Exploratory Working Group and sought input from experts. Its outcomes contributed towards the final Issues Paper prepared for the first meeting of the full Working Group for this project, which was held 17-19 November 2020.

As consistent with the Institute’s established working methodology, a Working Group was established, composed of international legal experts and observers representing different legal systems with expertise in a number of relevant fields, such as property law, secured transactions and digital technology.

The Digital Assets and Private Law Working Group was composed of:

  • Hideki Kanda, (Chair), Professor, Gakushuin University (Japan)
  • Jason Grant Allen, Senior Research Fellow, Humboldt University of Berlin (Australia)
  • Reghard Brits, Professor, University of Pretoria (South Africa)
  • Marek Dubovec, Director of Law Reform Programs, International Law Institute (ILI) (United States)
  • David Fox, Professor, University of Edinburgh (United Kingdom)
  • Louise Gullifer, Professor, University of Cambridge (United Kingdom)
  • Matthias Haentjens, Professor of Private Law, Leiden University (Netherlands)
  • Hannah Yee-Fen Lim, Associate Professor, Nanyang Technological University, Singapore (Australia)
  • Charles Mooney, Professor, University of Pennsylvania (United States)
  • Philipp Paech, Associate Professor, LSE (Germany)
  • Carla Reyes, Assistant Professor, Southern Methodist University (United States)
  • Nina-Luisa Siedler, Partner at DWF (Germany)
  • Luc Thévenoz, Professor, Université de Genève (Switzerland)
  • Jeffrey Wool, Senior Research Fellow, Harris Manchester College, University of Oxford (United States)
  • Mimi Zou, Fellow, Oxford University (China)

In addition, several international, regional and private organisations with interdisciplinary expertise in the field of digital assets and private law have been, or may be, invited to participate as observers in the Working Group, with the objective to assist in both the adoption and the implementation of the guidance document once it has been adopted:

  • The World Bank Group
  • The United Nations Commission for International Trade Law (UNCITRAL)
  • The Hague Conference on Private International Law (HCCH)
  • The International Monetary Fund (IMF)
  • Association Internationale Des Sciences Juridiques / International Association of Legal Science (AISJ/IALS)
  • International Union of Judicial Officers (UIHJ)
  • The European Central Bank (ECB)
  • The European Banking Authority (EBA)
  • The European Banking Institute (EBI)
  • Asociación Americana De Derecho Internacional Privado (ASADIP)
  • The American Law Institute (ALI)
  • The European Law Institute (ELI)
  • Kozolchyk National Law Center (NatLaw)
  • Banca d’Italia (Central Bank of Italy)
  • Law Commission of England and Wales
  • The Uniform Law Commission (ULC)
  • Istituto per la vigilanza sulle assicurazioni (The Institute for the Supervision of Insurance) (IVASS)
  • The Italian Financial Services Authority (CONSOB)

Finally, UNIDROIT may also invite a number of industry associations to participate as observers in the Working Group to ensure that the guidance document will address the private sector’s needs. The latter will also assist in promoting the implementation and use of the guidance document. The following private sector association has been invited to participate as an observer in the Working Group, but more may be invited:

The International Swaps and Derivatives Association (ISDA)

In addition to the ordinary Working Group, a Steering Committee composed of governmental and technical experts will be observing and assisting the activities of the Working Group.

1st Working Group Meeting

The first meeting of the Working Group took place in a hybrid manner on 17 – 19 November 2020.

 

2nd Working Group Meeting

The second meeting of the Working Group took place in a hybrid manner on 16 – 18 March 2021.

 

3rd Working Group Meeting

The third meeting of the Working Group took place in a hybrid manner on 30 June – 2 July 2021.

 

4th Working Group Meeting

The fourth meeting of the Working Group took place in a hybrid manner on 2 – 4 November 2021.

 

5th Working Group Meeting

The fifth meeting of the Working Group took place in a hybrid manner on 7 – 9 March 2022.

 

6th Working Group Meeting

The sixth meeting of the Working Group took place in a hybrid manner on 31 August – 2 September 2022.

 

7th Working Group Meeting

The seventh meeting of the Working Group took take place in a hybrid manner from 19 to 21 December 2022.

 

8th Working Group Meeting

The eighth meeting of the Working Group took place in a hybrid manner from 8 to 10 March 2023.

UNIDROIT undertook a public consultation in relation to the draft UNIDROIT Principles on Digital Assets and Private Law. For further information please see: Public Consultation: Digital Assets and Private Law. The results of the consultation were discussed at the Working Group’s 8th session.