Rätten och Blockkedjetekniken: Om decentraliserade system, kryptotillgångar och rättslig hantering av tekniska innovationer

Abstract

This project explores the intersection of blockchain technology and the law. The aim of this project is to illustrate the legal and regulatory challenges regarding blockchain technology and its applications, and to examine how these issues are dealt with from a legal perspective.

The blockchain technology was introduced in 2008 as the underlying technology of the Bitcoin network. It can be used to create networks that is explicitly governed and controlled by a collective of network participants, based on the rules set in the underlying data protocol. This project aims to analyze some of the characteristics created by the technology that is regarded as issues from a legal point of view, mainly the absence of a central authority in decentralized networks.

This project is also focused on the main use for blockchains, the market for crypto-assets. A wide variation of blockchains and blockchain based systems have appeared on the market during the last decade. Technical innovations such as “Smart Contracts” and “decentralized applications” have been developed and added as additional layers to the blockchain technology. This has led to a considerable development of different kinds of crypto-assets. But the technology and its applications have not been subject to regulation to any particularly large extent. The way to approach and define this diverse group of crypto-assets, in the purpose of addressing them legally, has been subject to an extensive discussion lately amongst regulators, lawyers and participants of the crypto market. In this project, an approach is made to examine different types of crypto-assets, to suggest definitions and classifications that can be used in legal aspects.

The market for crypto-assets is not regulated in the EU, but the EU-commission has presented a proposal for a regulation. This proposal aims to create harmonization on the EU-market and regulate crypto-assets that are not currently under the scope of some other relevant EU-regulation. This framework will be examined in the light of the taxonomy of crypto-assets created in this project and regarding the legal and regulatory challenges that blockchain technology give rise to.

The analysis in this project shows that there are several blockchain characteristics and functions that may pose a challenge from a legal perspective, including automation, immutability, and user anonymity. The examination shows that it may be of importance to distinguish between different kinds of blockchains and blockchain based systems, because they may raise different issues and challenges from a legal perspective. The main challenge is to address a subject that is responsible for decentralized networks. This conclusion was also supported and confirmed in the analysis of the proposal for the EU regulation. Another conclusion is that one of the main legal and regulatory issues is to define different types of crypto-assets in a sustainable and proportional way. A final conclusion is that the present and future law, built on the same logic of addressing liability on a central authority, can manage some blockchain systems in a satisfactory manner. This is true for networks where a central authority can be identified. On the contrary, it appears as if truly decentralized networks are still a challenge for regulators, that remains to be figured out. Regarding these systems, it can be considered that they are not handled in a totally satisfactory way by the law.