How do companies think?
By the Hon Justice Anthony Payne
My topic is ‘how do companies think?’. My answer, which I will provide up front, is: ‘it depends’ — by which I mean that where the question is one which involves civil or criminal statutory liability of a corporation, the starting point should be the statute rather than the general principles of company law or agency although those principles will almost always become part of the assessment.
Is cryptocurrency property?
By the Hon Justice Ian Jackman
The question whether cryptocurrency is property raises some fundamentally important issues of legal principle: Can cryptocurrency be treated as a chose in action, and what follows if it cannot? Is cryptocurrency properly treated as merely information and therefore not property? Can cryptocurrency be held on trust, for example through custodial intermediary exchanges and other holding arrangements which give relatively low-cost access to trading? Can one grant a mortgage or charge over it? Are the policy questions too great to be left to courts applying the common law? As yet, these issues have not yet arisen in substantive proceedings in Australia, although cryptocurrency was in effect assumed to be property in the two cases which might have analysed the issue (Commissioner of the Australian Federal Police v Bigatton [2020] NSWSC 245 (Cavanagh J); Chen v Blockchain Global Limited (2022) 66 VR 30 (Attiwill J)). Much of the judicial reasoning in other jurisdictions over the last five years is open to criticism. The legal debate was enlivened last year with the publication of an article by Professor Robert Stevens of Oxford University entitled ‘Crypto is Not Property’ (2023) 139 LQR 615, written in a refreshingly provocative style compared to the typically sober and measured pages of the Law Quarterly Review. But like cricket or rugby matches, the best style is not always victorious. I will seek to show that well-established High Court authority on various aspects of the concept of ‘property’ should yield a clear answer in favour of the view that cryptocurrency is property, and as to the nature of that property. While I accept that cryptocurrency would continue to exist even if the law did not regard it as an object of personal property rights, there would be important consequences for the kinds of transactions which people can, and do, engage in, whether by way of trusts, mortgages and charges, and wills. The question is also central to the availability of legal remedies, such as those associated with tracing or interim remedies such as freezing orders and proprietary injunctions.
Contract law master class 2024: Part 1 of 2
By Jeffrey Goldberger
Chapter 1:
Contemporary issues in contract formation
Chapter 2:
Incorporation of terms by reference
Chapter 3:
Lawful act economic duress in English and Australian law
How do companies think?
By Justice Anthony Payne
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4
Is cryptocurrency property?
By Justice Ian Jackman
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14
Contract law master class 2024. Part 1 of 2
By Jeffrey Goldberger
page
21