The Law Commission, an independent organisation tasked with reviewing English and Welsh law, closed a consultation last week which reviewed how private international law operates in the context of electronic trade documents and digital assets. The review, expected to yield a final report by early 2026, examined how to navigate emerging technologies in international private law, such as crypto-tokens, electronic bills of lading (eBLs), and electronic bills of exchange.
The consultation invited responses from stakeholders, including legal scholars and market participants who often use distributed ledger technology (DLT) and electronic trade documents. The consultation paper, which stakeholders gave feedback on, focused on the problems brought by DLT, such as jurisdictional disputes in cases of fraud or hacking.
The paper proposes introducing a new free-standing information order to help victims of fraud make a claim. It also proposes an “alternative approach” to international law, which would be applied to those DLTs that are so decentralised that it would be impossible to identify a singular jurisdiction to apply to them.
Despite the fairly recent Electronic Trade Documents Act 2023, electronic trade documents still present a range of legal issues. The paper proposes reforming Section 72 of the Bills of Exchange Act 1882, which identifies the applicable laws in cases of issues connected to bills of exchange and promissory notes. Approaches to the conflict of laws have changed significantly in the 150 years since the law was drafted; the current practice, in which the two parties involved in a trade negotiate the jurisdiction under which any disputes would fall, is technically not permitted by Section 72(2) of the Act.
The Law Commission focused the consultation on digital assets and electronic trade documents, which “challenge the territorial premise on which the existing rules of private international law have been developed” – meaning current legal principles often fail to adequately take into account the developments brought by the new technology. The Commission started the review at the government’s request in 2022; its recommendations, which will be included in the final report, will take into account the feedback received during the consultation and are likely to be proposed as a law.
International private law, the branch of domestic law that governs disputes between private companies that occur across jurisdictions, has only gotten more complex in recent years. A continuing increase in international trade and investment on the one hand, and regulatory fragmentation on the other, have meant that cross-border disputes are more frequent and higher-stakes, and also harder to resolve.
Recent cases, such as Trafigura’s win against Rasmala in a Singapore court, show both the urgent need for electronic trade documents – which protect against many forms of fraud, such as forgery – and the importance of having a solid, bilaterally recognised legal system to resolve disputes in.
