In a significant development regarding intellectual property, the Chinese court in Hangzhou admitted a blockchain deposit as evidence in a legal dispute this summer. The court based its decision primarily on the credibility of the technical means used to obtain the evidence and the integrity of the blockchain evidence itself. In an official announcement published on September 7, the Chinese Supreme Court confirmed the admissibility of evidence authenticated by blockchain technology.
Developed in the early 1990s, blockchain technology combines two information systems: the compilation of data linked into chains and the sharing of files via a peer-to-peer system. Together, blockchain ensures the security of transactions and transmitted information. One of its greatest strengths lies in its ability to combine security and decentralization. Encouraged by European institutions, many companies, particularly banks, are now investing in startups developing blockchain applications within their respective sectors.
Updated. China has recently reconsidered its development in blockchain technologies, especially cryptocurrencies. Having maintained an ambiguous relationship with cryptocurrencies for several years, the country’s vice-governor of the central bank presented them as potentially major alternative investments. While he proposes implementing relevant policies to support their growth, stablecoins will benefit from a stricter, special regime. The main objective is to promote the future digital yuan as the preferred means of payment.
Blockchain: France’s cautious approach to proof
In France, blockchain technology has benefited from a legal definition since the ordinance of April 26, 2016, and specific authorizations for its use in certain sectors – fund units, negotiable debt securities, and unlisted financial securities. Blockchain is referred to there as a shared electronic registration system (DEEP).
Indeed, Article L.223-12 of the Monetary and Financial Code now stipulates that “the issuance and transfer of minibonds may also be recorded in a shared electronic registration system allowing for the authentication of these transactions, under conditions, particularly regarding security, defined by decree of the Council of State.”
However, case law did not wait for any legal framework to rule on Bitcoin as a currency, as it was deemed necessary to have authorization from the Prudential Control Authority to carry out Bitcoin transactions on behalf of third parties.
The Court of Justice of the European Union (CJEU) has confirmed that the exchange of traditional currencies for cryptocurrencies (and vice versa) on behalf of third parties constitutes a service within the meaning of Directive 2006/112/EC of 28 November 2006.
Furthermore, the Sapin II Law No. 2016-1691 of 9 December 2016, concerning transparency, the fight against corruption, and the modernization of economic life, authorized the government to issue ordinances regulating the representation and transfer of financial securities using blockchain technology.
While some continue to explore the various potential applications of blockchain—smart contracts, insurance, intellectual property—questions are emerging regarding its evidentiary value. Based on technologies identical to those of electronic signatures, the question of its admissibility as digital evidence is a major issue for the future of its use.
Law & Blockchain: the applicable rules of the Civil Code
Article 1366 of the French Civil Code has established electronic documents as admissible evidence, subject to two criteria: a duly identified author and a guarantee of the document’s integrity and preservation. Combined with other technical processes, blockchain could potentially meet the requirements of Article 1367 of the Civil Code concerning electronic signatures. Several legal scholars have interpreted a recent ruling by the Court of Cassation on electronic signatures as an opportunity to grant blockchain the same probative value (Cass. civ., 06.04.16, n°15-10732).
While its usefulness has been recognized in establishing a register of prior art for documents, blockchain does not currently guarantee a legal link between the signatory’s identity and their signature.
