Hop on the Roller Coaster – New Hopes for Digital Exhaustion?

Abstract

Non-fungible tokens (NFTs) have become one of the hottest buzzwords of the pandemic period. One of the most important judgments was handed down in March – but published only in June – 2022 in Osbourne v Persons Unknown and Ozone (see [2022] EWHC 1021 (Comm)). In para. 13 of the judgment, Pelling QC stated that ‘[t]here is clearly going to be an issue at some stage as to whether non-fungible tokens constitute property for the purposes of the law of England and Wales, but I am satisfied on the basis of the submissions made on behalf of the claimant that there is at least a realistically arguable case that such tokens are to be treated as property as a matter of English law’. While this is only a dictum and the judgment on the proprietary freezing injunction originates from an application made without notice (where the other parties were not actively involved in the proceedings), it is still the first judicial opinion that asserts the property nature of NFTs. Shortly after this, in Janesh S/O Rajkumar v Unknown Person (‘Chefpierre’), the sale of certain NFTs was halted by an injunction of the Singapore High Court as well. This ruling is also claimed to confirm the property nature of NFTs under the law of Singapore.