The Crypto-asset Phenomenon in a Corporate Law Perspective

Paolo Carriere

Banca Impresa Società, 2020, issue 3, 461-520

Abstract: Crypto-assets have so far been considered mainly under a regulatory perspective and less frequently under a corporate law perspective; as a matter of fact, in the light of a thorough understanding of the peculiar functioning model of the technological infrastructure necessarily underlying «security tokens» and «utility tokens» (i.e. blockchain or DLT technology) it is more difficult for such tokens to be qualified or even be described – per se, ontologically – in terms of traditional «securities», in the absence of specific provisions of corporate law that regulate and allow for the issuance and placement thereof, through the use of the said crypto-technology, then directly, simultaneously and without intermediaries. Looking at the market experience to date, many such tokens may be described, at most, as derivatives of underlying traditional securities, and therefore more properly «tokenized securities»; in order to conceive true «security tokens» it is necessary to refer to a primary legislation of civil-corporate law that will allow and regulate the adoption of DLT technology(ies?) as a legal method of issuance/placement/trading/custody/entitlement alongside the «paper-based» and the «dematerialized» methods; nevertheless, such a legislative option is far from being easily and efficiently conceivable, in the absence of standardized and universally recognized operational patterns and protocols. Finally, a more radical analytical perspective of corporate law yet to be investigated, concerns the possibility of considering a crypto-platform, per se, as a corporate entity, with all the intricately connected legal implications of domestic and private-international law.

Keywords: Crypto-asset; ICOs; Tokens; Security Tokens; Utility Tokens. (search for similar items in EconPapers)
Date: 2020
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