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The Research States That Crypto Custodians Are Not Entirely Disintermediated And Hold Legal Risks

Since its start in 2008, the crypto sector drew the attention of almost everyone in the financial industry – from crypto enthusiasts to legislators. In the context of research on digital assets, conducted as a collaboration between Leiden Law School and Oxford University, Prof. Dr. Matthias Haentjens, Dr. Tycho de Graaf & Ilya Kokorin LLM published a 42-page document. The research paper examines the possible risks behind crypto customers’ involvement with crypto custodians.

The researchers noted that in recent years several crypto exchanges shut down operations, including Cryptopia (New Zealand), BitGrail (Italy), and QuadrigaCX (Canada). The team at Leiden Law School also analyzed the legal standpoint behind crypto custodians’ insolvency, like the ownership of Bitcoin, as well as the mechanisms behind transferring ownership, if such exists.

Prof. Dr. Matthias Haentjens and his colleagues found out that a large portion of all Bitcoin in circulation is held by crypto custodians, which means the cryptosystem is not entirely disintermediated. Despite offering free-of-charge entry, crypto exchanges often store Bitcoin in a pool, rather than a segregated address. The pooling creates difficulties in tracing the exact path of a given Bitcoin, as well as not clarifying whether the funds are used by someone else. However, the team proposes the prohibition or limitation of such Bitcoin re-usage by eliminating the use of pooled Bitcoin addresses and use of segregated addresses.

From a legal standpoint, there is no big difference in the way a crypto custodian stores Bitcoin, whether in pooled or in segregated addresses. Segregated crypto addresses mean the crypto custodian allocates unique wallet addresses and private keys for each user.

The lawyers considered that from a property law perspective, Bitcoin ownership can be qualified either absolute or contract-related. The absolute ownership is often referred to as a physical Bitcoin carrier. However, the team proposes the prohibition or limitation of such Bitcoin re-usage. 

The researchers concluded that it’s hard from a legal point of view for users to put claims for revendication in case of crypto custodian insolvency. However, in the cases of MtGox and BitGrail, such claims were referred to as pari passu with other unsecured claims, as the courts ruled that Bitcoin can’t bear signs of ownership.

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