Key takeaways from Crypto Comparative Webinar June 2023

DLA Piper’s technology disputes team recently held a successful webinar, Cryptoassets: Emerging legal trends in common law and civil law jurisdictions, where a discussion was held on how courts in the UK, Europe and United States have been determining cryptoasset disputes and what that means for creators, developers and owners.

Key takeaways from the session

UK

• The English courts continue to demonstrate a willingness to get to grips with novel issues arising from digital assets, applying existing principles of the English common law to provide a suite of remedies for victims of crypto-fraud. However, recent cases show the courts will limit the remedies awarded against crypto-exchanges innocently caught up in fraud, where appropriate.
• The scope of the duties owed by software developers and controllers of digital asset networks to the holders of cryptocurrencies reliant on their software is a significant issue that remains to be determined in the Tulip Trading case, which is proceeding towards trial.
• We are also starting to see class actions relating to digital assets coming through, most notably the circa GBP9.9 billion opt-out claim before the Competition Appeals Tribunal brought against four exchanges on behalf of holders of BSV bitcoin.

US

• In the US, with the SEC taking the lead, a range of regulators are aggressively pursuing enforcement actions to apply existing laws and regulations to reign in the ability of those involved with digital assets to operate in the United States. At the same time, the SEC, through its rule making process is seeking to further expand its ability to regulate actors in the digital asset space by closing any perceived regulatory gaps
• Litigation involving digital assets, including class actions alleging violations of federal and securities laws, have increased and courts are allowing some of those cases to proceed outside of arbitration
• Notably, however, US Courts continue to compel consumer crypto litigation matters (most concerning account takeovers and social engineering) into arbitration despite plaintiffs’ efforts to remain in US courts.

Italy

• Private Italian litigation on cryptoassets remains quite infrequent. As at today’s date Italian Courts handed down three rulings all on criminal offences deriving from a public offer of cryptoassets as financial products
• The concept of financial product under Italian law is unique in the EU in that it encompasses all offerings of assets where the offeror promises or grants a remuneration from the investment
• In the absence of the publication and pre-approval of a prospectus, the public offering of financial products (including crypto-assets) is in breach of the Italian financial regulation.
• The criminal judgments considered the offering of bitcoins and tokens issued in the context of an ICO as public offerings of financial products to be preceded by the publication of a prospectus
• Marketing and offering of cryptoassets in Italy must be carefully assessed in order to avoid such risks.

Netherlands

• In the Netherlands, there has been a significant increase in boiler room fraud with cryptoassets, for which the affected accountholders try to hold the crypto exchanges liable. So far, the Dutch courts have dismissed these claims.