Cryptoassets are in the spotlight for many reasons. The use of cryptocurrencies as an alternative to fiat currencies is being explored and tested further by global events. Their correlation with traditional stores of value is being tested in volatile markets. Their status as both a potential means of avoiding sanctions and as a possible means of funding charitable and humanitarian causes is being demonstrated and discussed.
An increasing body of English case law has recognised cryptocurrencies as a form of property giving rise to the possibility of insolvency clawback claims involving cryptoassets.
Recent developments
MR DOLLAR BILL LTD V PERSONS UNKNOWN AND OTHERS [2021] EWHC 2718 (Ch)
Part 1 of this article considered some of the checks and balances that apply when seeking access to one of the law’s most potent weapons, including the tests the applicant must satisfy, and exceptions that are commonly included in the order made by the court (see ‘Freezing orders: policing the nuclear option (Pt 1)’, NLJ, 7 & 14 January 2022, p15).
In her recent keynote speech, delivered at the 25th IBA Competition Conference on 10 September 2021, European Commission (the Commission) Executive Vice President Margrethe Vestager called for a green revolution—the replacement of a linear economy with a circular one, coupled with investments in infrastructure.
Introduction
Cryptocurrency has become a major talking point and an accessible investment option for retail investors. As it has become mainstream, and the ownership of cryptocurrency has become easier and more user friendly, the value associated with most cryptocurrencies including Bitcoin, Ethereum and Nano has seen huge gains.
Across the world, government support has kept insolvency rates down but as jurisdictions look to loosen restrictions and ease back into some kind of normality, governments can't foot the bill forever.
As financial support is withdrawn, restructuring, insolvency and corporate recovery practitioners will likely see a spike in activity, and offshore firms are braced for an increase in demand from clients. After that, there'll likely be lender enforcement resulting in formal insolvencies by the end of the year and into next year.
It's probably becoming a cliché to say that the future is already here, but it's hard to resist. New technology increasingly pervades every professional sector, including that of insolvency.
In a recent report by the Law Society on developing technology, the Chancellor of the High Court, Sir Geoffrey Vos, commented that: "Lawyers face a steep learning curve. They will need to become familiar with […] cryptoassets – conceptually and functionally."
Demand for virtual currency services, including custody services, has soared in the past several years. Like their counterparts in traditional finance, these custodians are stewards of retail and institutional customer funds and serve an important and valuable function. However, as evidenced by a number of headline-grabbing failures during the lingering crypto winter, inadequate disclosures and poor custodial practices can seriously harm retail and institutional customers alike.
The media is brimming with articles on the rise of cryptocurrencies and digital assets. Whether it’s news on the rising value of Bitcoin, the acquisition of digital art for large amounts of money, the release of the latest Kings of Leon album as an NFT (non fungible token), or articles on people who have invested in cryptocurrency scams, crypto assets are taking center stage.