Law and regulation for a crypto-market: perpetuation or innovation?

Abstract

This paper looks at the importance of the law in a crypto-market and recognises that the market is a legal construct and so is the crypto-market. Private law matters as it provides legal certainty for market transactions. Regulatory intervention is required for a market as it can enhance legal certainty, mitigate legal and market risks, and address market failure. Currently there are different types of cryptoasset on the market. There are also several possible cryptoassets that are currently been imagined and could in the future enter the market. This phenomenon has created confusion. Cryptoassets keep developing alongside law and regulation. Using the existing private law concepts to engage in legal taxonomy exercises for these cryptoassets can lead to unsatisfactory results. Equally, applying the current regulatory ethos and framework to them has a significant risk of stifling financial innovation in the crypto-market. A new type of social contract is required to define the stakeholders and their relationships with law and regulation. This new social contract should reflect the desire to cross or even transcend national boundaries, the mistrust in the current centralised and intermediated market structure, the needs of the currently excluded, and a reformed power structure of global financial regulation.