The Law Commission of England and Wales’ Supplemental Report entitled “Digital Assets as Personal Property” and the resultant Property (Digital Assets etc) Bill (currently proceeding in the House of Lords) aims to introduce a significant ‘third category’ of personal property, capable of accommodating the complexities and unique nature of digital assets. The Supplemental Report and Bill serve as a valuable point of reference for the Cayman Islands, guiding our approach to digital property rights within an evolving financial landscape. This article will examine how these developments can assist Cayman’s legal framework and market opportunities.
With the rise of digital innovation, the classification and protection of digital assets have become critical issues. A recent Appleby article ‘Whose Crypto Is It Anyway?‘ dealt with the same topic.
The publication of this Report and Bill [2] marks a pivotal moment in recognising digital property rights. This legislative move not only showcases the adaptability of the English legal system but also serves as a vital reference for jurisdictions like the Cayman Islands, where the highly evolved offshore financial services industry demands a strong legal framework for digital property rights.
Legislative aims of the Bill
The cornerstone of the Bill is the confirmation that digital assets, including cryptocurrency, can be recognised by the law as property, by establishing a crucial “third category” of personal property. Traditional classifications—namely “things in action” (like debts) and “things in possession” (such as physical objects)[3]—fail to adequately capture the unique characteristics of digital assets.
By their nature, digital assets are intangible and often operate in ways that blend both ownership and access rights, creating complexities that existing legal frameworks do not sufficiently address, creating uncertainty across the industry, from investors to the judiciary. Accordingly, the Bill aims to eliminate uncertainties surrounding ownership rights associated with digital assets. Its intentionally broad language encompasses a wide variety of assets, providing a flexible legal framework that can adapt to future developments.
This clarity is particularly significant in insolvency contexts, where the treatment of digital assets can significantly impact recovery efforts and, ultimately, distributions to stakeholders. For example, digital assets considered to be property will be available to be sold for the purpose of making distributions to creditors. In addition, the recognition of digital assets as property will assist courts as they continue to issue essential remedies, such as freezing injunctions, preventing the dissipation of digital assets and protecting stakeholders whose digital assets have been interfered with or unlawfully taken.
Relevance to the Cayman Islands
The Bill is highly relevant to the Cayman Islands as we aim to create a robust legal environment that encourages investment in technological advancements. Whilst the Grand Court not yet been specifically required to address whether digital assets should be classified as property under common law or under statutory provisions [4], the Cayman court is no stranger to determining matters relating to digital assets.
In the Matter of Atom Holdings [5], the Cayman Islands Grand Court granted an order appointing joint provisional liquidators, which included, inter alia, “digital assets” in the description of the “property of the Company”. It is likely that the Cayman Courts will take the same approach as other offshore jurisdictions (in line with the Bill), such as Smith v Torque Group Holdings Limited (in liquidation)[6] heard in the BVI Commercial Court and the Hong Kong decision in Re Gatecoin Limited (In Liquidation)[7].
Ultimately, further certainty in the legal treatment of digital assets will enhance the Cayman Islands’ appeal to investors and equip insolvency practitioners with the tools to navigate this evolving landscape effectively. As we move forward, it is crucial for practitioners to stay informed and be prepared to adapt to the evolving legal standards which will reinforce the Cayman Islands’ reputation as a secure jurisdiction for such transactions.
A call for progressive reform in the Cayman Islands?
The implications of the English Bill extend beyond its borders, offering valuable lessons for the Cayman Islands, particularly in the context of insolvency proceedings involving digital platforms and assets. By observing and adapting to these legislative developments, we can foster a legal environment that supports innovation while safeguarding property rights in the digital realm.
Key takeaways
- Recognition of digital assets: Recent legal developments in England and Wales underline that digital assets should be recognised as property, simplifying legal processes for cryptocurrency disputes.
- Establishing clarity: The introduction of a third category for digital assets provides legal clarity and certainty for stakeholders engaged in digital transactions.
- Insolvency context: The confirmation of digital assets as a form of personal property provides further certainty to insolvency practitioners, not only in the context of realising those assets, but also when faced with dissipation of digital assets or fraud.
- Engagement with developments: Familiarity with the Law Commission’s Draft Bill can significantly influence and improve local practices in the Cayman Islands.
[1] [2024] EWHC 2342 (Ch)
[2] Applicable to England and Wales
[3] Also known as “choses in action” or “choses in possession”
[4] For more information, see Appleby’s April 2024 article: “Whose Crypto Is It Anyway?”
[5] FSD 54 of 2023 (IKJ)
[6] BVIHC (COM) 0031 of 2021
[7] [2023] HKCFI 914
Alan Bercow is a partner and member of the Cayman Dispute Resolution department at Appleby.
Charlotte Walker is a senior associate in Appleby’s Dispute Resolution Practice Group in the Cayman Islands.
Shari Walton-Rankin is an associate within the Dispute Resolution Practice Group of Appleby’s Cayman Islands office.
