Law commission consultation on digital assets and (electronic) trade documents in private international law

We provisionally propose that, in cases where the level of decentralisation is such that omniterritoriality poses a true challenge to the premise of the multilateralist approach, seeking to identify the one “applicable law” to resolve the dispute would not result in a just disposal of the proceedings and therefore an alternative approach is required.

Do consultees agree?

We provisionally propose that, where the level of decentralisation is such that the multilateralist approach would not result in the just disposal of proceedings, the courts of England and Wales should consider the alternative method of the supranational approach to resolving the conflicts that may exist between different private law systems.

Under this provisional proposal:

1. 1. The premise of the supranational approach in these cases should be that the law of no country would be appropriate to apply to resolve the issue in dispute, and the law of every country would be appropriate to apply to resolve the issue in dispute.
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3. 2. The overall objective of the courts in these cases should be the just disposal of the proceedings with an omniterritorial element.
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5. 3. To achieve the just disposal of proceedings, the courts should take into account a wide range of factors. In particular, this would include considering the legitimate expectations of the parties which, in these circumstances, are likely to consider elements of the basis on which the participants have interacted with the relevant system, such as the terms of the protocol.
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7. 4. The outcomes of the case will remain subject to the public policy and overriding mandatory rules of England and Wales.

Do consultees agree?

We provisionally conclude that it would be premature at this point to propose statutory reform on the question of resolving a conflict of laws in the context of omniterritorial phenomena. We also provisionally conclude that the approach might not necessarily be a good candidate for a statutory rule.

Do consultees agree?

We invite consultees’ views about the potential impact of this proposal if it were implemented. Do consultees consider that this could avoid protracted disputes about applicable law, and lead to more efficient resolution of disputes? What do consultees consider the costs or risks of such an approach would be?

We invite consultees’ views as to when relevant cases might start to come before the courts? In what circumstances might disputes arise?