On 5 June 2025, the Law Commission published a consultation paper entitled "Digital assets and (electronic) trade documents in private international law".
The aim of the consultation is to resolve questions relating to international jurisdiction, applicable law, and the recognition and enforcement of foreign judgments, arising from use of electronic trade documents, digital assets and distributed ledger technologies. The consultation paper includes provisional proposals for reform of certain aspects of private international law that apply in this context.
Key points include:
- Jurisdiction: The consultation considers how the existing jurisdictional gateways for property (gateway 9(a)) and tort (gateways 11 and 15(b)) can be applied in the context of crypto litigation. It also notes that the existing gateway for free-standing Norwich Pharmacal and Bankers Trust orders (gateway 25) has not been widely used because claimants are often unable to satisfy the requirement that the information is sought for proceedings commenced or intended to be commenced in England and Wales as they do not know the identity or whereabouts of the perpetrators. There is therefore a proposal to create a new discretionary power of the courts to grant free-standing information orders against third parties in circumstances where it is not yet clear whether substantive proceedings will be initiated in England and Wales.
- Applicable law: The consultation proposes a new "supranational" approach to deal with the "omniterritorial nature" of disputes in relation to digital assets and electronic trade documents. This new approach would no longer require the courts to identify a single applicable law, but to take into account a range of factors to determine a just outcome of the dispute, including the legitimate expectations of the parties.
- Bills of Exchange Act 1882: The consultation also makes proposals for reform of section 72 of the Bills of Exchange Act 1882, which would apply to relevant documents in both paper and electronic form.
Deadline for comments is 8 September 2025.
The Law Commission plans to publish final recommendations in 2026.