CERIL report 2023-3 on crypto-assets in restructuring and insolvency

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Moffatt, P. ORCID: 0000-0001-7219-4092 and Skauradszun, D., 2023. CERIL report 2023-3 on crypto-assets in restructuring and insolvency. Leiden: Conference on European Restructuring and Insolvency Law (CERIL).

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Abstract

CERIL finds that, as a result of the complexity of the crypto-market and its rapid evolution, there is a lack of clarity as to whether insolvent crypto-asset service providers, in particular crypto custodians, should be governed by the European Insolvency Regulation Recast (EIR), the EU Single Resolution Mechanism or the EU Winding-up Directive. CERIL’s view is that the EIR’s exclusion in Article 1(2) should be interpreted narrowly, so that crypto-asset service providers such as pure crypto custodians fall within its scope, but recommends that, in light of the introduction of the Markets in Crypto-assets Regulation (MiCAR), the European regulator should cautiously undertake a proper assessment of the most appropriate approach. CERIL further recommends that the EIR should be amended for crypto-assets in three ways: first, to include an autonomous definition of “crypto-asset”; second, to make it explicit that the lex libri siti applies only to those blockchains subject to the supervision of a public authority; and third, to provide a waterfall mechanism for determining where crypto-assets are situated.

Item Type:

Research report for external body

Creators:

Moffatt, P. and Skauradszun, D.

Publisher:

Conference on European Restructuring and Insolvency Law (CERIL)

Place of Publication:

Leiden

Date:

31 October 2023

Identifiers: