Control is paramount among Unidroit’s Principles on Digital Assets and Private Law. Although the principle of control is presented as a factual concept, the truth is that it has strong legal significance. Firstly, control is embedded in the definition of a digital asset since only those susceptible to control are covered by the Principles. Control, understood as the ability to take advantage of the digital asset exclusively, prevents third parties from taking advantage of the asset, and transfer said capabilities to third parties, represents a business operating scheme on which multiple schemes can be superimposed on business at the legal level. Control capabilities, with the distribution of possible property rights and control functions between a client and a custodian, can cover operations as diverse as a transfer of assets, a usufruct, a pledge or a portfolio management contract entrusted to various Smart contracts. In this sense, the concept's usefulness is that it allows uniform legal consequences to be attributable to multiple legal schemes regardless of different legal systems’ conceptions. This is useful in a globalised and intercultural market, such as digital assets. Control is also a key element in assessing the legitimacy of transfers of digital assets and acquiring the status of bona fide acquirer or innocent acquirer in cases where litigation arises due to the dissociation between the rights of ownership or economic rights and the transfer of assets. Furthermore, although control is specified in the enjoyment of exclusive rights, these rights can be voluntarily shared through an agreement. Hence, business schemes are possible in which the property and control rights are distributed through multi-signature agreements, PKI agreements, shared computing and the like. Finally, Control will also have an impact when assessing credit preferences in case of conflict between several creditors in cases of insolvency of the custodians.

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Principle 6 Control

  • Marina Echebarría Sáenz

摘要

Control is paramount among Unidroit’s Principles on Digital Assets and Private Law. Although the principle of control is presented as a factual concept, the truth is that it has strong legal significance. Firstly, control is embedded in the definition of a digital asset since only those susceptible to control are covered by the Principles. Control, understood as the ability to take advantage of the digital asset exclusively, prevents third parties from taking advantage of the asset, and transfer said capabilities to third parties, represents a business operating scheme on which multiple schemes can be superimposed on business at the legal level. Control capabilities, with the distribution of possible property rights and control functions between a client and a custodian, can cover operations as diverse as a transfer of assets, a usufruct, a pledge or a portfolio management contract entrusted to various Smart contracts. In this sense, the concept's usefulness is that it allows uniform legal consequences to be attributable to multiple legal schemes regardless of different legal systems’ conceptions. This is useful in a globalised and intercultural market, such as digital assets. Control is also a key element in assessing the legitimacy of transfers of digital assets and acquiring the status of bona fide acquirer or innocent acquirer in cases where litigation arises due to the dissociation between the rights of ownership or economic rights and the transfer of assets. Furthermore, although control is specified in the enjoyment of exclusive rights, these rights can be voluntarily shared through an agreement. Hence, business schemes are possible in which the property and control rights are distributed through multi-signature agreements, PKI agreements, shared computing and the like. Finally, Control will also have an impact when assessing credit preferences in case of conflict between several creditors in cases of insolvency of the custodians.