Should Crypto-Asset Regulation Be Technology-Neutral?
Résumé
Almost every legislative project on crypto assets defends the principle of technological neutrality. This principle is based on three arguments. Future-proofing protects against the risk of change or obsolescence. Impartiality protects against the risk of discrimination between economic actors making different technical choices. Functional equivalence means that the same business leads to the same rules, even when that business is served by different technologies and processes. But bringing the principle to the fore may also hide some unease with the technicality of the subject.
Implementing the technology-neutrality principle into legislation is proving tricky. National legislators are tempted to adopt vague or clumsy legal definitions, or to rely on industry regulators to sort out the details. The lack of clear definitions complicates the writing of operational rules. Some lawmakers use the legacy legal framework as the basis for amendments with the result that the new one is rather skewed toward legacy technologies than actually neutral.
Applied too literally, the technology-neutrality principle may leave some issues unaddressed with too much discretionary power on supervisors or judges. Legal uncertainty may be just shifted rather than reduced. Investors may not see technology-neutrality as an end in itself if it compromises the very profitability of a DLT-specific investment. Finally, with respect to Private International Law, applying technological neutrality within national law while seeking harmonisation of crypto-asset regulation with that of other jurisdictions looks like squaring the circle…
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