Beiträge

The Position of Blockchain Technology and Bitcoin in Swiss Law

Barbara Graham-Siegenthaler

Andreas Furrer

Citation: Barbara Graham-Siegenthaler / Andreas Furrer, The Position of Blockchain Technology and Bitcoin in Swiss Law, in: Jusletter 8. Mai 2017

The authors explore the legal implications of the Blockchain Technology and Bitcoins on Swiss private law. They focus is placed on the aspects of ownership and property. Firstly, the applicable law under SPILA is discussed. This is followed by an assessment of the practical implications for providers of Bitcoin storage to customers. Such storage can be qualified under traditional ownership and contractual concepts which has considerable implications when segregation is considered in cases of bankruptcy. It is argued by the authors that ownership over Bitcoins can be established applying the basic ownership concepts of Swiss law.

Table of contents

I. Introduction
- A. Bitcoins as a new currency based on a new technology
- B. Challenges for lawyers and lawmakers
- C. Question: ownership and segregation of Bitcoins
II. The law pertaining to Bitcoins
- A. Comparative viewpoints
  - 1. Introductory remarks
  - 2. Germany
  - 3. Netherlands
  - 4. Spain
  - 5. United States
- B. The different legal relationships (applicable law)
  - 1. The applicable private international law of the forum
  - 2. Legal relationship between sender and receiver of Bitcoins
    - 2.1. Problem of qualification
    - 2.2. Qualification as rights in rem
    - 2.3. Qualification as a contractual relationship
    - 2.4. Third approach: lex fori according to Article 15 SPILA
  - 3. The legal relationship between the service provider and the customer
    - 3.1. Choice of law clause
    - 3.2. Contractual relationship
  - 4. Conclusions
III. Two private law issues on Bitcoins under Swiss law
- A. Ownership and property of Bitcoins under Swiss law
  - 1. Common core of ownership laws and principles
  - 2. Principles of property law
  - 3. Ownership in Swiss law
    - 3.1. Concept
    - 3.2. Definition of an «object» under Swiss law
    - 3.3. Exceptions and deviations from the traditional definition
    - 3.4. Functional approaches to tangible objects and concepts of ownership
  - 4. Are Bitcoins objects in the sense of Articles 641 and 714 SCC?
    - 4.1. Digital data
    - 4.2. Impact of the decentralised structure of Bitcoins
    - 4.3. Legal consequences of the decentralised structure of Bitcoins
  - 5. Conclusions
- B. Practical impact: the example of segregation in case of bankruptcy
  - 1. Starting point: different transaction concepts used by service providers
  - 2. Principle of segregation in general
  - 3. Segregation of «stored» Bitcoins with a service provider (ownership scenario)
    - 3.1. Users control of their Bitcoins
    - 3.2. Relationship between sender and receiver
    - 3.3. Relationship between service provider and customer
    - 3.4. Similarities between intermediated securities and Bitcoins
    - 3.5. Bankruptcy scenarios
  - 4. Contractual perspective and possible claims (no ownership scenario)
    - 4.1. Introductory remarks
    - 4.2. Contract between the sender and the receiver of Bitcoins
    - 4.3. Contract between the service provider and its customer
    - 4.4. Consequences in case of bankruptcy
IV. Conclusions