A blockchain is a register for storing digital evidence (each technically represented by a hash, a digital fingerprint corresponding to a single data or document). This method is called anchoring. The legal value of such evidence must, however, be distinguished by whether one is in the presence of a legal fact or an act.
In civil law, the legal fact is proven by any means. In this case, the inclusion of evidence in the blockchain will ensure its integrity as well as accurate time-stamping. However, blockchain anchoring does not have a particular probative force: the person who uses it must be able to justify the value of the evidence he is advancing. In this case, a specialist lawyer and an expert may be required to convince the judge of the unfalsifiable nature of the blockchain.
Digital proof of a legal act (contracts, will, etc.) requires “that the person from which it emanates may be duly identified” (Article 1366 French Civil Code). Without recourse to a trusted third party, this link between the author and the evidence is not possible on a blockchain. For example, commercial law allows free proof of acts: a probationary clause for the blockchain is therefore possible between traders, as part of a blockchain traceability system for example.
Who recognizes the Blockchain in the world?
The blockchain has been recognized since September 2018 by CHINA in a ruling by the Chinese Supreme Court that recognizes the blockchain as a legal means of proof. In its decision, the Supreme Court states:
“Internet courts will recognize the digital data submitted as evidence if the parties involved have collected and stored this data via a blockchain with digital signatures, reliable time stamps, hash value verification or via a digital repository platform and can prove the authenticity of this technology used.
In the United States, the first state to recognize blockchain as a means of proof is the state of Vermont and this dice 2016. As of January 1, 2020, more than 17 U.S. states recognize Blockchain as a legal means of proof before the courts. After Vermont, the states of New York, California, Wyoming, Florida, Connecticut, Arizona, Colorado, Maryland, Nebraska, New Jersey, Virginia, Tennessee, Ohio, Illinois recognized the Blockchain as evidence.
In Europe, Italy in 2019 recognized the blockchain as a means of proof, as did Russia, Latvia, Lithuania, Germany, Slovenia.
In Africa, Ghana has passed legislation to give the blockchain a means of proof and now manages the land registry through the blockchain.
In the absence of legislation and jurisprudence in this regard, it is still impossible to know with certainty whether blockchain can constitute a legal mode of proof in France.
However, the principles of blockchain recognition are enshrined in our national and European law. It would be enough to reveal them and institute them explicitly to guarantee French and foreign operators in France a legal certainty allowing them to no longer ask the question and simplify their commercial practices and practices.
In French law, the criteria for probative force of an e-writing are defined by Article 1366 of the Civil Code, in these terms:
“Electronic writing has the same probative force as paper writing, provided that the person from which it originates can be duly identified and that it is established and preserved under conditions such as to guarantee its integrity.”
The probative force of an e-writing is therefore subject to two conditions:
(i) The author of the writing must be duly identified:
Section 1366 of the Civil Code provides no specifics in this regard.
The only method of identification provided by the Civil Code is the signature, of which Article 1367 of the same Code indicates that it identifies the author of a legal act.
Two French ordinances that legitimize the blockchain:
Between 2016 and 2017, France has two texts, one for the management of mini bonds, the other for unlisted financial securities through a blockchain.
These two orders will allow, in their respective fields, to issue and exchange on a blockchain tokens representing company shares, bonds, debt securities or shares of OPCVM. They will test the blockchain on “minor” assets, although the market for unlisted securities represents 400 billion euros, before a possible generalization to regulated financial securities: listed securities, derivatives, etc.
The conditions of use of the blockchain and the security conditions must be detailed in a decree common to these two ordinances. Due to the technical complexity of these topics, this text is likely to be subject to public consultation before it is adopted. Of paramount importance, this decree will have to define the public or private nature of the usable blockchain, as well as the approved actors in charge of the link between token transmitters, users and the network.
Once effective, these two orders will form the basis of the “future law of the French blockchain” and a reference to legally qualify this technology, especially in the courts.