Laura Gratacós i Camós has posted Legal Certainty for B2B Tokenised Collateral: A Functional and Layered Analysis of Private Law, Smart Contracts and Private International Law on SSRN. Here is the abstract:
This study examines the use of financial tokens as collateral in cross-border B2B transactions and the legal uncertainty associated with cryptographic control, the localisation of digital assets and automated enforcement. It assesses whether the EU legal framework and traditional categories of private law and PIL provide sufficient legal certainty or require functional and layered adaptation. Using a legal-dogmatic methodology based on EU law, soft law, case law and scholarship, the analysis shows that the current framework provides only partial answers: not every token is legally suitable as collateral; cryptographic control does not by itself establish title, third-party effectiveness or priority; and execution through a smart contract does not guarantee legally valid realisation. Existing rules make it possible to determine jurisdiction and the law governing the contract, while proprietary and security effects remain dependent on national law or asset-specific regimes. For native digital assets, EU law lacks a uniform and binding conflicts rule capable of identifying with sufficient predictability the law applicable to third-party effectiveness and priority. DAC8 and CARF strengthen transparency without determining the legal or tax characterisation of the transaction. In response, the study proposes a collateral-ready financial token test, a lawful self-execution test and a hierarchy of functional connecting factors. It concludes that traditional legal categories remain indispensable, but that greater legal certainty requires targeted clarification of control, third-party effectiveness, priority, the law applicable to proprietary and security effects, and automated enforcement.
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