ELI Access to Digital Assets

Background

This project follows on from the 'Fiduciary Access to Digital Assets Feasibility Study', which analysed whether the model law in this area, drafted by the US Uniform Law Commission (and taken over by the Uniform Law Conference of Canada), could be used as a starting point for a model law in the EU. The US model law gives 'fiduciaries' (such as personal representatives of decedents' estates) the legal authority to manage, to the extent possible, digital assets and electronic communications in the same way they manage tangible assets and financial accounts. It also gives custodians of digital assets and electronic communications legal authority to deal with the fiduciaries of their users. After some discussion, a conclusion was drawn that this rapidly developing area, by its nature cross-border, would not be served well by a model law. Some EU Member States might alter the model law and some Member States might not even enact it, thus making cross-border problems even more problematic instead of less.

Aim

The project aims to clarify and facilitate the position of those claiming an entitlement to digital assets and all those who increasingly have to deal with digital assets in their daily legal practice, in particular, judges, lawyers, notaries public, public registrars and enforcement agents. The aim of the project is to help bring coherence to, and promote the harmonisation of, existing laws and legal concepts relevant for access to digital assets.

Outcome

Originally, the project’s goal extended to identifying the various categories of digital assets, the types of persons who may wish or need to have access to them, and the settings in which questions of access could arise, followed by a more category-specific approach with a focus on digital assets as security for credit and enforcement against digital assets.

As the work of the Project Team matured, it became apparent that, in the case of a financial institution requiring access to, for instance, crypto-assets where these are offered as security for a loan, a different approach was needed compared to the situation of a judicial enforcement officer wishing to enforce a judgment. As work on the project progressed, developments accelerated, resulting in the decision to present the project’s output in two installments.

The first phase, the ELI Principles on the Use of Digital Assets, which focus on instances where private parties, whether natural or legal, contractually agree to create a security interest in a digital asset, were approved by the ELI Membership in February 2022 and are available for download here.

Further work on the installment on enforcement is underway.

Case Studies 

For some illustrative examples that the Access to Digital Assets project seeks to tackle, please click here.