Clifford Chance
Code is Law (unless the Court of Appeal says there is a realistic argument that it is not)
6 March 2023
The recent Court of Appeal decision in Tulip Trading Limited v van der Laan and Others [2023] EWCA Civ 83 has generated significant interest in the Bitcoin community and the wider digital asset sector. The claimant asks the English court to order software developers alleged to control various Bitcoin blockchains to modify source code to restore the claimant’s control over Bitcoin for which its private key has been stolen. The case has generated unease in some quarters because the notion of a national court requiring the modification of a decentralised ledger is contrary to two of the key tenets of DLT, namely that the information recorded on the ledger is immutable and there should be no central governing authority. Undermine those principles, some say, and the value of digital assets, and Bitcoin in particular, may collapse.
Nothing has been finally decided yet (this was just an appeal of a jurisdiction challenge) but the case shows that the English courts are willing to engage fully with difficult legal issues arising from DLT and illustrates how the law is continuing to develop in this area.
