Digital Assets in Scots Private Law: Innovating for the Future
This project is generously funded by the Royal Society of Edinburgh (RSE)
‘Digital Assets in Scots Private Law: Innovating for the Future’ is a research project led by the University of Aberdeen with collaborators from the University of Edinburgh, University of Dundee (formerly from Edinburgh Napier University), and CMS. It is a one-year project running between 1 December 2023 and 30 November 2024 and generously funded by the Royal Society of Edinburgh (RSE) under its research workshops scheme.
Digital assets (eg Bitcoin), underpinned by distributed ledger or similar technology, have grown globally in significance and become increasingly important for individuals and businesses. The effects of digital assets are wide-ranging, impacting upon trade, finance, securities, insolvency, succession and even family matters. The novel and fast-evolving nature of digital assets brings a number of challenges in applying traditional legal concepts to these assets and accommodating them under existing legal rules and regimes. There are advanced reform projects in different jurisdictions for reviewing and adapting domestic laws to facilitate digital assets and provide innovate legal solutions to issues raised, but not yet in Scotland.
This project aims to assess to what extent digital assets are already accommodated within Scots private law, which areas of law require reform, and how law reforms concerning digital assets can be best advanced in Scotland. In doing so, the project focuses on two important classes of digital asset, namely electronic trade documents and cryptoassets, and engages with key stakeholders across Scotland. As part of the project, three workshops will be organised to bring together focus groups with diverse experience and expertise from academia, legal practice, industry, the judiciary, policymaking and government to discuss key issues concerning digital assets in Scots private law, and a webinar will be held to disseminate final project findings. These events will be followed by publication of project outputs.
Project Leads
The project is led by a research team from the University of Aberdeen in collaboration with distinguished lawyers from academia and practice across Scotland.
Project Collaborators
- Professor David Fox (University of Edinburgh)
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David Fox is the Professor of Common Law at the University of Edinburgh. Before moving to Edinburgh, he was for many years a Fellow of St John’s College in the University of Cambridge, where his teaching touched on most aspects of private law. He is a door tenant at Maitland Chambers in Lincoln’s Inn. His research interests concentrate on the formation of modern trust and property doctrine in common law systems, and on the private law applying to money. He is the author of Property Rights in Money (Oxford 2008); and the joint editor with W Ernst of Money in the Western Legal Tradition: Middle Ages to Bretton Woods (Oxford 2016); and with S Green of Cryptocurrencies in Public and Private Law (Oxford 2019). He has been a special consultant to the Law Commission project on Digital Assets and the Scottish Government Expert Reference Group on Digital Assets in Scots Private Law. He was a member of the drafting committee of UNIDROIT project on Digital Assets and Private Law.
- Dr Simone Lamont-Black (University of Edinburgh)
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Dr Simone Lamont-Black is a Senior Lecturer at the Edinburgh Law School. Before joining Edinburgh University, she worked in private practice in Germany and lectured in England at Northumbria University. She is a registered UN/CEFACT Expert. Her work on multimodal bills of lading and freight forwarding has been cited by highly renowned research and practitioner handbooks such as Girvin, Carriage of Goods by Sea (3rd edition, OUP 2022) and Aikens, Lord and Bools, Bills of Lading (3rd edn, Informa 2020) and in court (such as in the High Court of Singapore). Her response to the Law Commission call on Electronic Trade Documents has led to the inclusion of multimodal bills in the discussion, with relevant commentary in the Electronic Trade Documents Bill and Explanatory Notes (LAW Com No 405). She also provided invited written evidence to the Special Bill Committee of the House of Lords in the Electronic Trade Documents Bill and is a member of the UN/CEFACT Working Party on the White Paper on Transfer of MLETR-Compliant Titles, dealing with the move to digital trade documents and bills of lading.
- Dr Lorna Gillies (University of Dundee)
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Dr Lorna Gillies is a Senior Lecturer in Commercial Law at the Law School, University of Dundee. Lorna is an Advisory Member of the RSE funded SCOTLIN and a listed participant in UNCTAD's Working Group on E-Commerce. Lorna's research takes a pragmatic, normative, inter-disciplinary approach to the function, value and effect of global law, specifically the function and application of international private law in recognising systemic inequality and vulnerability, regulating and resolving cross-border disputes and securing access to justice. Her most recent work focusses on developing a normative framework for vulnerability in private international law (Hart, 2024) and balancing substantive and conflicts of values in the relationship between the AI value chain and private international law (UNESCO, Slovenia, 2024).
- Fiona Henderson (CMS)
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Fiona Henderson is a partner in the banking team at international law firm CMS. She acts for a range of clients including fintechs, corporates, clearing banks, funds, and private equity sponsors in relation to cross border and domestic, syndicated and bilateral funding transactions and private securitisations. Fiona specialises in fintech, tech finance, and digital assets. She leads the specialist embedded finance team at CMS for the UK. She is dual-qualified in England & Wales and Scotland. Selected relevant experience includes: acting for corporate clients in relation to the tokenisation of shares in English private limited companies for proof of concept real estate projects; acting for an institutional investment and asset manager on the tokenisation of bonds; being a respondent to the UK Jurisdiction Taskforce’s consultation on the Issuance and Transfer of Digital Securities under English private law (named on list of respondents); and co-authoring a report on NFTs commissioned by UK Finance.
- Selected Publications and Consultation Responses
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- A. Held, A. MacPherson and B. Yüksel Ripley, ‘United Kingdom (UK) Report’, M. Lehmann and T. Morishita (eds.) Cryptocurrencies: The Impossible Domestic Law Regime? (Intersentia, forthcoming- commissioned by the International Academy of Comparative Law (IACL)).
- A. MacPherson and B. Yüksel Ripley, ‘Scottish Government Consultation on Digital Assets in Scots Private Law’, (see Submitted Response).
- A. MacPherson, B. Yüksel Ripley, D. McKenzie Skene, G. Uchechi Emeasoba and M. Ashami, ‘Law Commission of England and Wales Consultation on Digital Assets’, (see Submitted Response).
- A. MacPherson, D. McKenzie Skene and B. Yüksel Ripley, ‘UK Government Consultation on Managing the Failure of Systemic Digital Settlement Asset (Including Stablecoin) Firms’, (see Submitted Response).
- A. MacPherson, D. McKenzie Skene and C. Emedosi, ‘Response to UK Jurisdiction Taskforce (of the LawtechUK Delivery Panel) Consultation on Digital Assets and English Insolvency Law’,(see Submitted Response).
- B Yüksel Ripley, ‘Law Commission of England and Wales’s New Project on Conflict of Laws and Emerging Technology’, EAPIL Blog, 2021, https://eapil.org/2021/11/30/law-commission-of-england-and-waless-new-project-on-conflict-of-laws-and-emerging-technology/.
- B. Yüksel and F. Heindler, ‘Use of Blockchain Technology in Cross-Border Legal Cooperation under the Conventions of the Hague Conference on Private International Law (HCCH)’, Aberdeen Law School Blog, 2019, https://www.abdn.ac.uk/law/blog/use-of-blockchain-technology-in-crossborder-legal-cooperation-under-the-conventions-of-the-hague-conference-on-private-international-law-hcch/https://www.abdn.ac.uk/law/blog/use-of-blockchain-technology-in-crossborder-legal-cooperation-under-the-conventions-of-the-hague-conference-on-private-international-law-hcch/.
- B. Yüksel Ripley and A. MacPherson, ‘Digital Assets Law Reform in England and Wales and Prospects for Scotland’, Aberdeen Law School Blog, 2022, https://www.abdn.ac.uk/law/blog/digital-assets-law-reform-in-england-and-wales-and-prospects-for-scotland/.
- B. Yüksel Ripley & A. MacPherson, ‘Law Commission of England and Wales Consultation on Digital Assets: Electronic Trade Documents’, (see Submitted Response).
- B. Yüksel Ripley and A. MacPherson, ‘UK Parliament Electronic Trade Documents Bill [HL] Special Public Bill Committee's inquiry on Electronic Trade Documents Bill [HL]’, https://committees.parliament.uk/writtenevidence/115567/pdf/.
- B. Yüksel Ripley and F. Heindler, ‘The Law Applicable to Crypto Assets: What Policy Choices Are Ahead of Us?’ in A. Bonomi, M. Lehmann and S. Lalani (eds), Distributed Ledger Technologies and Private International Law, pp.259-284 (Brill, 2023), https://doi.org/10.1163/9789004514850.
- B. Yüksel Ripley and M. Gilmore-Maurer, ‘UK Government Consultation and Call for Evidence on UK Regulatory Approach to Cryptoassets and Stablecoins’, (see Submitted Response).
- B. Yüksel Ripley, ‘Cryptocurrency Transfers in Distributed Ledger Technology-Based Systems and Their Characterisation in Conflict of Laws’, in J. Borg-Barthet, K. Trimmings, B. Yüksel Ripley and P. Živković (eds), From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen (Oxford, Hart/Bloomsbury, in press).
- B. Yüksel Ripley, ‘David Fox and Sarah Green (eds), Cryptocurrencies in Public and Private Law”, (2020) 24 Edinburgh Law Review pp.309-311, https://www.euppublishing.com/doi/10.3366/elr.2020.0639.
- B. Yüksel Ripley, ‘The Law Applicable to (Digital) Transfer of Digital Assets: The Transfer of Cryptocurrencies via Blockchains’, MM. Fogt (ed) Private International Law in an Era of Change (Edward Elgar, forthcoming).
- B. Yüksel Ripley, ‘Transition to Paperless Trade to Mitigate COVID-19 Impact on International Trade’, Aberdeen Law School Blog, 2020, https://www.abdn.ac.uk/law/blog/transition-to-paperless-trade-to-mitigate-covid19-impact-on-international-trade/https://www.abdn.ac.uk/law/blog/transition-to-paperless-trade-to-mitigate-covid19-impact-on-international-trade/.
- B. Yüksel Ripley, ‘When is a cryptocurrency transfer international in distributed ledger technology-based systems?’, (2023) 7 EU and Comparative Law Issues and Challenges (ECLIC), Special Issue - Law in the Age of Modern Technologies, pp. 181-201, https://hrcak.srce.hr/ojs/index.php/eclic/article/view/28263.
- B. Yüksel Ripley, A. MacPherson and D. McKenzie Skene, ‘Law Commission of England and Wales Call for Evidence on Digital Assets’, (see Submitted Response).
- B. Yüksel Ripley, A. MacPherson and G. Emeasoba, ‘UK Parliament Call for Evidence on the Crypto-Asset Industry’, https://committees.parliament.uk/writtenevidence/111448/pdf/.
- B. Yüksel Ripley, A. MacPherson D. McKenzie Skene and GU. Emeasoba, ‘Response to Bank of England and HM Treasury Consultation on the Digital Pound: A New Form of Money for Households and Businesses?’ .
- B. Yüksel Ripley, A. MacPherson, M. Poesen, A. Albargan and L Xuan Tung, with O. Momoh as an observer, ‘UNIDROIT Digital Assets and Private Law Consultation’, (see Submitted Response).
- B. Yüksel, ‘Is the UK heading towards regulation of cryptoassets? Findings from the UK Cryptoassets Taskforce Final Report’, Aberdeen Law School Blog, 2018, https://www.abdn.ac.uk/law/blog/is-the-uk-heading-towards-regulation-of-cryptoassets-findings-from-the-uk-cryptoassets-taskforce-final-report/.
- B. Yüksel, Uluslararası Elektronik Fon Transferine Uygulanacak Hukuk [The Law Applicable to International Electronic Funds Transfer] (Istanbul, XII Levha, 2018) 342p.
- C. Emedosi, A. MacPherson, D. McKenzie Skene, B. Yüksel Ripley and L Xuan Tung, ‘UK Government Consultation and Call for Evidence on the Future Financial Services Regulatory Regime for Cryptoassets’, (see Submitted Response).
- C. Kerrigan and F. Henderson, ‘Tokenisation’, in C. Kerrigan (ed), Crypto and Digital Assets Law and Regulation, ch 10, (Sweet and Maxwell 2023).
- C. Kerrigan and F. Henderson, Digital Assets: Non-Fungible Tokens: Financial services use cases and regulatory considerations, 2023, https://www.ukfinance.org.uk/system/files/2023-04/Digital%20Assets%20-%20Non-Fungible%20Tokens.pdf.
- D. Fox & W. Ernst (eds), Money in the Western Legal Tradition: Middle Ages to Bretton Woods, (Oxford University Press, Oxford, 2016); ISBN 978-0-198-704744, xxviii+892 pp.
- D. Fox and S. Green (eds), Cryptocurrencies in Public and Private Law (Oxford University Press, Oxford, 2019); XXXiii + 323 pp; ISBN 987-0-19-882638-5.
- D. Fox, ‘Cryptocurrencies in the Common Law of Property’ in D. Fox and S. Green (eds), Cryptocurrencies in Public and Private Law (Oxford University Press, Oxford, 2019), pp 139-76.
- D. Fox, Property Rights in Money (Oxford University Press, Oxford, 2008), ISBN 978-0-19-829945-5, 326 pp.
- Events and Outputs
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The project is structured around three workshops, bringing together focus groups with diverse experience and expertise from academia, legal practice, industry, the judiciary, policymaking and government, and one webinar. The project events will be followed by workshop reports, blog posts and an article.
Workshop 1 (February 2024)
This workshop examines the implications of electronic trade documents law reform for Scotland, focusing on Scottish perspectives on the UK Electronic Trade Documents Act 2023 and industry insights into its application in practice.
Workshop Photos:
Workshop 2 (May 2024)
This workshop maps the legal landscape for cryptoassets in Scotland, focusing on their classification in property law and related issues in succession, family law, secured transactions, insolvency, debt enforcement, trusts and delict.
Workshop Photos:
Workshop 3 (September 2024)
This workshop explores the intra-UK and international dimensions of digital assets for Scotland, focusing on matters relating to private international law and developing international frameworks.
Workshop Photos:
Webinar (November 2024)
The webinar serves as a public engagement event on final project findings.
- News
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News items relating to the project:
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