Private Law Regulation of Innovations and Creditors’ Rights: What We Can Learn from Domain Name Rights for Blockchain Rights

Abstract

The most significant innovation in recent years has been blockchain technology. Such innovations demand a response from the law. The most significant innovation of the last twenty-five years has been the internet. The relative lack of government regulation in the domain of public law has been one of the key features of the internet. The private law regulation of domain name rights has been left to private institutions to arrange this through contract law. Contract law, however, has its limitations when it comes to pledging, seizing and the forced sale of domain name rights. Qualification problems with regard to the nature of domain name rights and the prescribed mode of contract renewal have resulted in difficulties with respect to pledging and seizing domain name rights. These cannot be solved by bottom-up selfregulation. I will demonstrate this by discussing the law in the Belgian, Dutch, German and American jurisdictions. In particular, I will address the unique bottomup self-regulation of domain name rights in the Netherlands, which aims to replace statutory rules in the field of property law by contractual provisions. Lastly, I will discuss what we can learn from domain name rights for blockchain rights. I will argue that, learning from domain name rights, we should not try to fit in similar issues with regard to blockchain rights in existing private law or contractual arrangements, but should develop tailor-made statutory private law rules so as to avoid the same legal uncertainty as with domain name rights.