Private Law Frameworks for Tokenized Assets: Implications from Legal Developments in Switzerland, Germany, France, and the United States

In recent years, "asset tokenization" has attracted attention, with proof-of-concept experiments and actual transactions progressing worldwide. These initiatives can be understood as efforts to introduce new technologies to payment and settlement systems and extend their functionality in such a way that is only possible with digital technologies. As a prerequisite for that, legal stability concerning rights is essential. Various approaches exist among jurisdictions regarding how to determine private rights concerning the holding and transfer of tokenized assets. In this paper, we (i) extract the private law elements required for asset holding and transfer, (ii) analyze the legal developments carried out in Switzerland, Germany, France, and the United States while focusing on how these elements can be satisfied during tokenization, and (iii) provide an overview of proof-of-concept experiments and actual transactions conducted based on these developments. As a result of the analysis, a difference was confirmed between cryptoassets such as Bitcoin and tokenized assets: the former is designed to take on the characteristics of transferable assets by placing emphasis on the exclusivity of the power to dispose of tokens held by the managers of private keys rather than the principle of consensual transfer of rights, while the latter is premised on the structure that "rights in personam" (typically, claims) are recorded by tokens. Similarly, in Japan, considering these characteristics of tokenized assets, it would seem to be an option to proceed with further clarification of private rights through refinement of legal interpretation while considering legislative solutions that reference precedents from the above countries.