The crypto space has witnessed significant activity over the last year and is expected to continue generating new litigation risks in 2024 and beyond. The volatility of cryptocurrency values, the complex nature of the technology, the lack of regulation, and lack of understanding by regulators all contribute to this trend. Crypto-related actions span a wide spectrum, involving regulatory issues to claims brought by individuals or as class actions.
In response to fluctuating cryptocurrency values, regulators, law enforcement, as well as individuals, have initiated various actions against crypto companies in 2023. Due to the absence of comprehensive regulation, these claims often rely on traditional causes of action, such as breach of securities law, misleading investors, fraud, and theft.[1]
The English courts have adopted an increasingly open approach to crypto-based litigation. For example, in October 2022, a new jurisdictional gateway known as “Gateway 25” came into effect to facilitate claimants seeking information orders related to potential defendants outside English jurisdiction. This measure aimed to empower victims of potential crypto fraud. In the same month, the UK’s Law Commission began a consultation process to address conflicts of law issues arising from crypto-based litigation, including jurisdiction and governing law.[2] The English High Court has allowed service by Non-Fungible Token (“NFT”) last year, as an alternative means of serving defendants, where it was more likely to put the defendant, whose identity may not be known to the claimant, on notice of the claim.[3]
The proliferation of claims related to crypto assets has raised novel legal questions within a continuously evolving technical landscape.[4] These claims have dealt with various issues, including (i) theft of NFTs;[5] (ii) fiduciary duty of software developers overseeing crypto asset networks;[6] and (iii) liability for crypto exchanges.[7]
In the United States, some state courts have begun permitting claims against Decentralised Autonomous Organizations (“DAOs”),[8] which function without central leadership or hierarchy, relying on their members through smart contracts or similar software protocols. DAOs have various applications, including investment purposes. The UK is still investigating the nature of DAOs alongside relevant stakeholders with a view to determining how to regulate them going forward.[9] We expect these complex issues, and the novel approaches taken by the Courts faced with them, will continue to feature in future crypto asset litigation.
In June 2023, the UK’s Law Commission published several recommendations for the government regarding the regulation of digital assets, including crypto assets.[10] The UK is also seeing a number of regulatory developments relating to cryptoassets. The Financial Services and Markets Act 2023 has laid the foundations for the regulation of ‘digital settlement assets’, with the government and the FCA aiming to enact legislation and rules in 2024 to regulate issuance and custody of fiat-backed stablecoins in or from the UK under this regime. In September 2023, the FCA adopted the “Travel Rule” in cooperation with the global Financial Action Task Force (FATF).[11] This rule aims to enhance transparency in crypto asset transfers across borders, necessitating that crypto asset businesses in the UK collect, verify, and share information about crypto asset transfers into and out of the UK. In October 2023, HM Treasury has published its consultation response regarding the future financial services regulatory regime for crypto assets (stating its aim to lay relevant legislation in 2024), and the marketing of ‘qualifying cryptoassets’ in the UK has become subject to the financial promotions restriction.[12] In the EU, rather than adopting a phased approach, the enactment of the Markets in Crypto-Assets Regulation (MiCAR) in May last year introduced a single, uniform new framework for regulating cryptoasset-related financial services. While both regulatory frameworks and the regulators’ approach to supervision in this area are still developing, the FCA, for example, has already expressed its dissatisfaction with certain aspects of cryptoasset financial promotions. It might therefore be that, as has been observed in the US, the UK will see increased enforcement activity in this area in 2024.
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The following post was originally included as part of our recently published memorandum “Looking Forward Into 2024 and Beyond: Seven Trends in UK Disputes”
[1] In the United States for example, the Securities and Exchange Commission has, as of 11 December 2023, filed at least 31 crypto assets and cyber enforcement actions, including actions against major exchanges like Binance for numerous alleged securities law violations such as misleading investors.
[2] Law Commission Consultation, Digital assets: which court, which law?, https://lawcom.gov.uk/project/digital-assets-which-court-which-law/.
[3] See D’Aloia v Persons Unknown [2022] EWHC 1723 (Ch) and Osbourne v. Persons Unknown [2023] EWHC 39 (KB). We have also seen a similar trend in other jurisdictions, including in the United States: e.g., LCX AG v John Doe Nos 1–25, Order to Show Cause and Temporary Restraining Order (Index No 154644/2022, Supreme Court of the State of New York, 2 June 2022).
[4] See generallythespeech by HHJ Pelling KC: Issues in Crypto Currency Fraud Claims – an update (29 June 2023), https://www.judiciary.uk/speech-by-hhj-pelling-issues-in-crypto-currency-fraud-claims-an-update.
[5] See Osbourne v. Persons Unknown [2023] EWHC 39 (KB) (where it was held that NFTs could be considered property as a matter of English law).
[6] Tulip Trading Ltd v van der Laan and others [2023] EWCA Civ 83 (where the Court of Appeal held that such individuals may owe fiduciary duties to crypto asset owners). See Cleary Gottlieb, English Court of Appeal: Cryptoasset Network Software Developers May Owe Fiduciary Duties to Token Holders (21 February 2023), https://www.clearygottlieb.com/news-and-insights/publication-listing/english-court-of-appeal-cryptoasset-network-software-developers-may-owe-fiduciary-duties-to-token-holders.
[7] Piroozzadeh v. Persons Unknown [2023] EWHC 1024 (Ch) (where the High Court discharged an injunction made against cryptocurrency firm Binance which had originally been granted on the basis that Binance had received traceable proceeds of a fraud against the claimants).
[8] See,for e.g., CFTC v Ooki DAO, No. 22-05416 (N.D. California December 20, 2022). https://storage.courtlistener.com/recap/gov.uscourts.cand.400807/gov.uscourts.cand.400807.63.0.pdf.
[9] See Law Commission Consultation, Decentralised Autonomous Organisations (DAOs), https://lawcom.gov.uk/project/decentralised-autonomous-organisations-daos/.
[10] Law Commission, Digital Assets: Final Report (27 June 2023), https://s3-eu-west-2.amazonaws.com/cloud-platform-e218f50a4812967ba1215eaecede923f/uploads/sites/30/2023/06/Final-digital-assets-report-FOR-WEBSITE-2.pdf.
[11] Financial Conduct Authority, FCA sets out expectations for UK crypto asset businesses complying with the Travel Rule (17 August 2023), https://www.fca.org.uk/news/statements/fca-sets-out-expectations-uk-cryptoasset-businesses-complying-travel-rule#revisions.
[12] See the Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023.