Cryptocurrency and how to make recoveries in a digital world: views from Vilamoura (FIRE International 2022)

On 18 May 2022, I participated in a panel discussion at FIRE International in sunny Vilamoura alongside Dani Haston of Chainalysis, Benedict Hamilton of Kroll and Sheila Ng of Rajah & Tann on cryptocurrency and how to make recoveries in a digital world. I discussed the English approach to seeking recovery of crypto assets following a fraud and my views on likely future developments in this area and include a brief summary below.

The English courts have demonstrated a willingness to apply existing legal remedies to assist victims of crypto fraud in locating and recovering stolen crypto assets. Remedies that have so far been successfully obtained in crypto fraud claims in the English courts include:

• Freezing and proprietary orders in respect of both cryptocurrencies and recently, NFTs.
• Third party disclosure orders against exchanges including Bankers Trust and Norwich Pharmacal Orders (watch this space for possible procedural changes to enable the rapid and efficient service of disclosure orders on parties out of the jurisdiction).
• A third party debt order against a crypto exchange in respect of a judgment in default obtained against an entity which was a customer of the exchange.

Future developments in regulation and disputes in the cryptosphere include:

• The FCA supervision of crypto firms offering crypto asset activities to UK consumers and requirements to comply with various AML and KYC obligations may provide greater assistance to victims of crypto fraud by improving the availability and quality of information that may be obtained by third party disclosure orders. However, we will need to see more uniform international regulation in this respect to see a real improvement.
• On 10 and 11 May, the FCA held its first “Crypto Sprint” event to explore with crypto industry participants how the evolving world of crypto assets can be regulated in the UK, balanced against the need to enable innovation. The FCA is due to share the outputs of the Crypto Sprint in the summer, but I anticipate that a key focus will be the safeguarding of investors and consumers through proposed regulation of (1) what information crypto firms are required to disclose about crypto assets when offering them to investors; and (2) how customers’ ownership rights of crypto assets are proven and protected through custody arrangements.
• While HM Treasury recently confirmed the intention to regulate stablecoins (i.e. cryptocurrencies pegged 1:1 to other assets such as fiat currency), the recent collapse of algorithmic stablecoin TerraUSD is likely to bring increased scrutiny to this area (particularly as algorithmic stablecoins were excluded from recent regulatory proposals). TerraUSD was meant to be algorithmically stabilised by reference to a second cryptocurrency, Luna (as opposed to relying on a reserve of assets to maintain its peg to the US dollar as with most other forms of stablecoin). However, when it lost its peg, both TerraUSD and Luna crashed, losing over 95% of their values and leaving investors suffering significant losses. The TerraUSD fiasco had one writer comparing its founder to Elizabeth Holmes for having promised the impossible to investors. Query whether there is any truth in this comparison and whether there may be potential investor claims arising, in fraud or otherwise, as a result.