Digital assets and smart contracts

Abstract

The question of which law applies to digital assets is one of the thorniest problems of modern private international law. This contribution discusses the proper characterisation of digital assets and transfers, as well as the most appropriate connecting factor to link them to a governing state law. It concludes that the bulk of legal issues may be solved using traditional conflicts rules, without the need to localise the blockchain or the assets registered on it. The most difficult questions surround the law of property, which seemingly requires the localisation of the assets themselves. Instead, this contribution suggests following a waterfall of connecting factors that are independent of such localisation. Finally, it also addresses the law governing smart contracts, including DAOs and NFTs.