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Panel IV: Fiduciary Access to Digital Assets (feasibility study with ULC)

Harriet Lansing
Panel IV: Fiduciary Access to Digital Assets (feasibility study with ULC)

The panel on Fiduciary Access to Digital Assets focused on the transfer of property and information at death or incapacity in a digital age. It was notable for the contribution of its outstanding panellists, representing both law and technology. Discussions and contributions dealt with fascinating issues, such as the nature of digital property, the different paces of law and technology, the cross-border nature of the digital world, the possibility to seize digital assets or the need to protect consumers and specifically owners of digital assets in cases of death or disability.

The chair of the panel, Judge Harriet Lansing, Immediate Past President of the U.S. Uniform Law Commission (ULC) offered an overview on the Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA). This act creates a structure to apply effective laws on transfer of property to new types of property. The 2015 revised Act resolves some privacy issues that prevented the Act´s previous enactment.

The feasibility study that the ELI is developing with the U.S. ULC was then introduced by Sjef van Erp, Professor of Civil Law and European Private Law at the University of Maastricht and a member of the ELI Executive Committee.

The study aims to explore whether this instrument, the UFADAA, can be adapted to European Law. Since the digital world is cross-border, European and even global harmonisation is necessary. An approach that overarches legal traditions is needed and a consensus within the IT industry ought to be reached.

Significant illustrations were provided by Radim Polčák, Head of the Institute of Law and Technology at the Faculty of Law of Masaryk University, who raised questions related to the fraus in disponendo, the role of service providers and the transfer of intentionally hidden assets. Jos Uitdehaag, First Secretary at the Union Internationale des Huissiers de Justice, focused on the new means of enforcement of digital assets and concluded that legislation does not catch up with technologic developments. To wrap up such an interesting and relevant panel, Ernst Steigenga, Senior Advisor of Information Policy at the Ministry of Security and Justice of the Netherlands, elaborated on the instruments that are being provided to develop a European e-Justice portal, such as the e-CODEX.

Stimulating questions followed the presentations and contributed to this rewarding and enlightening panel. The main challenges that the ELI feasibility study will have to face were addressed, contributing to reducing the existing gap between law and technology. The materials of the panel are available on the ELI website.