Om borgenärsskydd till kryptovaluta

Digitalization and new technology enable whole new ways of representation of economic values. Today, large assets can be found outside the traditional property sphere. The perhaps most common example of such assets are cryptocurrencies. Like all other economic values, a conflict regarding who has the better claim to the cryptocurrency may occur – it can be subject to a question of a right in rem. This essay examines what cryptocurrency actually is, factually as well as in the context of property law. Based on the outcome of this, certain conflicts on property are studied; how protection from creditors can be achieved when cryptocurrency is (1) acquired, (2) entrusted an agent and (3) pledged as credit security. In this matter, the problem with cryptocurrency is that the pace of technological development is too fast for the legal system to keep up with, whereon the question arises as to how a new technological phenomenon should be dealt with legally. Cryptocurrencies and blockchains are put into a legal framework created in a reality completely unfamiliar with such concepts. Owning cryptocurrency only means sole control over the keys connected to it. The difficulties regarding rights in rem lie with the solution of the property conflict requiring manifestation and identification of ownership. As for tangibles, this can be solved by the studying of purely physical circumstances, while intangibles call for other solutions. A first issue to be revealed is whether cryptocurrency as such even can be the subject of a rights in rem conflict. Arguments have been laid out saying that since such protection cannot be granted every utility there is, cryptocurrency is to be viewed as a purely contractual concept. For an intangible asset to be recognized and protected by the legal system, a requirement is that the conception of its value reaches a certain level of universality. The essay however, sets out several factors indicating cryptocurrency has reached such acceptance. Considering the wide spread of cryptocurrency in society, it would undermine third party protection, should the legal system not recognize the conception of its value. Cryptocurrency is in a context of property law difficult to compare with other intangibles, such as receivables, financial instruments or intellectual property. In judicial literature, it is viewed as a sui generis, a unique type of property. Closer at hand is a comparison with traditional money. Even though, that being tangible, case law and literature discern clear ambitions of technique neutrality and equal treatment of non-material objects and property with a physical shape to which we are more accustomed. For instance, electronic money has been treated as if it were material bills and coins and negotiable debt instruments have been deemed able to exist electronically, provided the technological solution can maintain the purposes the Instruments of Debt Act aims to protect. This is coherent with the principle of functional equivalence found in soft law; if a technological solution is able to ensure conditions equal to a material record, corresponding legal effects should be granted. In the light of this equal treatment, the technological solution on which cryptocurrency is based – the blockchain – can be considered equivalent the managing of tangibles. The rules of the protocol allow exclusive control and prohibits double spending. Furthermore, it offers appropriate means of distinguishing and identification. Hence, when it comes to acquired cryptocurrency, the conclusion is that an interception of control through a transaction in the blockchain, should be necessary and sufficient to achieve protection from the seller’s creditors. If the transaction has been validated by the network, and it can no longer be withdrawn, the exclusive control over the cryptocurrency has been transferred to the buyer. As for retained ownership when cryptocurrency has been entrusted an agent, the cryptocurrency can be held secluded and be identified by the using of separate pairs of keys. Given its fungibility, there is a risk of mixing with other’s cryptocurrency, but the identity should in that case be able to be recreated, per the use of an analogy with the Funds Accounting Act. Regarding priority because of a pledge right may – given the conclusions on functional equivalence – the control over cryptocurrency be intercepted and the object of pledge identified. Thus, it should be possible to accomplish a right in rem with pledged cryptocurrency.