American Bar Association Publishes White Paper on Digital and Digitized Assets

By Clifford C. Histed

On March 13, 2019, the American Bar Association’s Derivatives and Futures Law Committee published a white paper called Digital and Digitized Assets: Federal and State Jurisdictional Issues.  As stated in its preface, this White Paper was prepared by members of the Jurisdiction Working Group of the Innovative Digitized Products and Processes Subcommittee (“IDPPS”) and their colleagues, who generously contributed substantial time and effort to this ambitious undertaking. The authors have sought to provide a comprehensive explanation of federal and state laws that may apply to the creation, offer, use and trading of digital assets in the United States, along with summaries of key initiatives outside the United States. The White Paper also recommends an analytic framework for considering potential issues of jurisdictional overlap between the Commodity Futures Trading Commission and the Securities and Exchange Commission under the separate federal statutes they each are responsible for administering.

IDPPS was established in March 2018 as a subcommittee of the Derivatives and Futures Law Committee of the Business Law Section of the American Bar Association, and has over 80 members, comprised of attorneys who work extensively in the areas of derivatives law and securities law, and related legal fields.  IDPPS is organized into three working groups, which include, in addition to the Jurisdiction Working Group, a Blockchain Modality Working Group and an SRO Working Group.  IDPPS was formed with the following objectives:

  1. To educate its members, policy makers and the public about current issues raised by innovative digitized products and processes, such as cryptocurrencies, smart contracts and blockchain or other distributed ledger technologies;
  2. To identify and study emerging legal and regulatory issues and their implications for such products and processes;
  3. To study and understand how the Commodity Exchange Act framework and other statutory and regulatory frameworks may intersect, and identify areas of conflict or other issues that overlapping laws may create; and
  4. To make appropriate recommendations to address material issues identified.

K&L Gates is proud of its significant contributions to the White Paper, which is found here.

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