Cryptocurrency – is it property? (Part V)
In the recent case of Fetch.ai Ltd and another v Persons Unknown Category A and others  EWHC 2254 (Comm), the English High Court granted a proprietary injunction, a worldwide freezing order with an ancillary disclosure order against persons unknown, along with various disclosure orders against the Fourth and Fifth Respondents who maintained Fetch.ai’s cryptocurrency account.
The applicants (Fetch.Ai) alleged that as victims of a cryptocurrency fraud, “persons unknown” had been able to access their cryptocurrency accounts which were maintained by the Fourth and Fifth Respondents on the Binance cryptocurrency exchange (Binance). The trading accounts held various cryptocurrencies including USDT, a cryptocurrency tethered to the value of the dollar, BNB, BTC and FET among others. Through these accounts Fetch.ai could buy and sell cryptocurrencies with counterparties who, at all times, remained blind to the account holder. The “persons unknown” obtained access to Fetch.ai’s accounts on Binance and traded crypto assets with unknown counterparties. Various trades were executed at a massive undervalue which caused Fetch.Ai a loss in excess of US$2.6 million. It was inferred that the trades were carried out with accounts operated by or on behalf of the “persons unknown” carrying out the fraud.
Fetch.ai sought and was granted:
(a) a proprietary order designed to freeze either (i) the assets moved; or (ii) to restrain third parties in possession of the traceable proceeds of those assets from dealing with them as if they were their own;
(b) a Worldwide Freezing Order against those knowingly involved in the fraud;
(c) an ancillary information disclosure order against “persons unknown”; and
(d) certain disclosure orders against the Fourth and Fifth Respondents (who maintained Binance).
The judge commented that he was satisfied that the cryptocurrencies in Fetch.ai’s accounts were to be regarded as property for the purposes of English Law and they were a chose in action.
The judge also cited and approved the decision in Ion Science Ltd v Persons Unknown and others (unreported), 21 December 2020 (Commercial Court), in which Butcher J considered that the governing law (lex situs) of the cryptoasset was the place where the person or company who owns it is domiciled. As Fetch.ai was domiciled in England, the English courts had jurisdiction over the cryptoassets.
It may well be that the granting of the disclosure orders against the operators of Binance will force disclosure of the identities of the counterparties in the fraudulent trades. This will allow Fetch.ai to obtain an insight into the identities of the “persons unknown”, so that they can put them on notice of the orders granted under (a) to (c), an important step towards potential recovery of the losses suffered.
English case law in relation to digital assets is developing at pace and recent judgments have shown the English courts’ willingness to apply legal principles flexibly to deal with the variety of disputes which have arisen from the rise in digital asset ownership. The English courts’ readiness to grant disclosure orders against cryptocurrency exchanges outside the jurisdiction is a positive development in light of the recent rise in cryptocurrency fraud.
Other Perspectives in the 'Cryptocurrency - Is it Property?' series: