Principle 14 Secured Transactions: General
摘要
Principle 14 introduces Section V of the Principles, which addresses secured transactions. As the title suggests (“Secured Transactions: Generalities”), it establishes a general framework that reiterates or confirms concepts already dealt with in other Principles. However, this is not a mere repetition but provides an organised and systematic presentation of the legal framework for digital assets in secured transactions. Its primary purpose is to apply the overarching Principles to the specific domain of collateral arrangements involving digital assets. Paragraph 1 reaffirms the principle articulated in Principle 2: as digital assets qualify as property rights (broadly defined), they may be subject to legal transactions applicable to property. Consequently, digital assets can be utilised to secure the performance of obligations, provided that market participants (creditors) deem these assets to possess sufficient value for collateralisation purposes. Paragraphs 2 and 3 extend the application of Principle 4, which addresses “assets linked” to a “main asset” in the realm of secured transactions. In cases where a linked digital asset is used as collateral, the Principles do not aim to regulate the entire transaction regime. Instead, they recognise the need for jurisdiction-specific rules governing the “primary” asset. This results in a bifurcated approach: the Principles apply to the linked digital asset, while the rules of the applicable domestic law (“other law”) govern the effects of the security interest on the primary asset (paragraph 2) and its enforceability against third parties (paragraph 3). This dual-framework approach does not preclude the possibility of States revisiting their collateral laws to ensure alignment and consistency with the regime established by the Principles, should such reforms be deemed necessary.