The jurisdictional gateways in England and Wales are framed in territorial terms, with a significant emphasis on geographical location. These can be difficult to apply when digital assets and distributed ledger technology (DLT), on which they are often based, exist “everywhere and nowhere”. This “omniterritoriality” means they have simultaneous and equally valid connections to multiple jurisdictions.
 
The pseudo-anonymous nature of blockchain transactions creates evidential issues in “localising” an act or object. This creates challenges for the victims of crypto fraud, who are unable to identify defendants or trace assets. Claimants often rely on intermediaries, such as crypto exchanges, to obtain information or recover assets. However, existing rules for information orders (e.g., Norwich Pharmacal and Bankers Trust orders) require either a connection to proceedings in the jurisdiction or an intention to commence proceedings in the jurisdiction.  This limitation is problematic for crypto cases where claimants may not know where proceedings might start. Courts have adopted a pragmatic approach in many cases. They have for instance allowed service by non-fungible tokens (NFT) and permitted claims against "persons unknown." But without consistency. Omniterritoriality therefore also creates access to justice issues, since crypto-fraud victims have more hurdles to overcome compared to claimants in contractual or property disputes involving identified defendants within the jurisdiction.
 
The Law Commission believes there is a clear case to introduce the power to make free-standing information orders.  These would operate independently of any substantive claim or identified defendant and would allow claimants to seek information from third-party intermediaries, such as crypto exchanges. They would assist claimants at the initial stages of pre-action investigations in digital and decentralised environments by supporting the preliminary investigations necessary to bring a fully pleaded claim, demonstrate an “adequate link” to England and Wales, or commit to commencing proceedings in the jurisdiction.
 
The consultation paper recognises some implicit difficulties in introducing this power, not least of which are challenges around enforcing these orders. It proposes some guardrails to ensure that it is exercised in a proportionate and principled way: requiring the claimant to demonstrate a case of a certain strength (“merits test”) as well as necessity and the impossibility of making the application elsewhere; and requiring a tangible connection to England and Wales (e.g., the claimant’s habitual residence). Additionally, the proposals emphasise the importance of avoiding conflicts with international principles of jurisdiction and ensuring that the orders are not used to unduly burden innocent third parties or circumvent established rules of international law.

The Law Commission has provisionally concluded that a specific crypto-token gateway is unnecessary. Existing jurisdictional gateways are broad enough to cover claims involving crypto-tokens. Courts already possess the tools to interpret these gateways according to private international law principles. The Law Commission believes that the challenges in crypto-token cases arise from the novel factual circumstances created by their characteristics: omniterritoriality, decentralisation, and pseudo-anonymity. They suggest the solution lies in interpreting and applying existing principles.
 
The Law Commission believes that crypto-tokens should be "localised" based on where they can be effectively controlled at the time proceedings begin. In tort cases, damage should be tied to the victim’s physical location when it occurred. If the damage cannot be clearly localised or if the defendant is identifiable, pursuing the defendant in their home court should remain an option. Courts are therefore being encouraged to avoid reliance on arbitrary or inconsistent fictions, such as linking crypto-tokens to the domicile of the owner, and instead adopt a principled approach that reflects the realities of the decentralised environment. This strategy promotes iterative and purposeful interpretation. It ensures that existing gateways adapt to new technologies without requiring major reform. However, the consultation will test whether a crypto-specific gateway will offer greater clarity and consistency.

Omniterritoriality also creates conflict of laws issues. A traditional multilateralist approach is premised on the idea that every legal issue “belongs” to a single legal system. It assumes the natural “seat” of the claim can be identified via a “connecting factor”, such as the location of property, the place where an act occurred, or the domicile of a party. In cases involving decentralised blockchains, decentralised finance (DeFi) systems and crypto-tokens involving servers, mining nodes, or private keys connected to multiple locations, no single jurisdiction emerges as the clear "winner". This has led to arbitrary or tenuous results.
 
The proposed solution is for courts to adopt a supranational framework in cases involving decentralised phenomena, where it would not be appropriate to apply the law of any one particular sovereign state. The Law Commission accepts that this would require a significant shift from the established multilateralist approach and the development of a special body of substantive rules. However, it is not suggesting this is achieved via legislative reform. Rather it advocates for the organic development of a framework through the common law on a case-by-case basis. The consultation contains a lengthy list of possibly relevant factors to determining jurisdiction under a supranational approach, including: 

• the location of the original coder’s primary residence, or the place where the website with their white paper is registered;
• the domicile of the creator of the DeFi protocol;
• the location of the majority of the platform’s contributor team who maintain the smart contract;
• where the servers are hosted;
• the location of the majority of mining nodes;
• the place from which the crypto-tokens can currently be controlled;
• where the person controlling the private key was at the time of the transfer; or
• where the acquiring party was located at the time of the disputed acquisition.

Beyond these technical and territorial factors, the Law Commission suggests that courts should examine the contents of any public disclosures about the DLT network, the substantive property laws, whether the parties voluntarily participated in the DLT network, any prejudice to third parties, the potential impact on other network participants, the effectiveness of any remedy, and broader policy concerns such as commercial certainty, clarity, and the sovereign authority to grant property rights.

The Law Commission has identified several reasons why s72 no longer aligns with modern private international law principles and commercial realities: 

• given the globalisation of trade and the increased use of digital and decentralised technologies, the “place of contracting” often has only a tenuous connection to the parties or the transaction, leading to uncertainty and disputes;
• it does not explicitly allow for party autonomy, which is seen as inconsistent with contemporary expectations and practices in commercial law; and
• determining “where” a contract is made, issued, or delivered is particularly ill-suited to the realities of digital and decentralised environments, such as electronic trade documents (ETDs) and blockchain-based transactions.

The Law Commission is proposing legislative reforms to modernise the provision to address both paper and electronic bills, allowing for greater party autonomy in determining the applicable law. Under the proposed reforms, the default rule would allow the parties incurring obligations under a bill of exchange to expressly choose the governing law, with such choice clearly indicated on the bill itself. In the absence of a valid choice, fallback rules would apply, such as the law of the place where the instrument is payable for the acceptor, or the habitual residence of the relevant secondary party for other parties incurring liability. These reforms aim to eliminate reliance on outdated connecting factors, such as the place of issue or delivery, which are increasingly difficult to apply in digital and decentralised contexts, and instead focus on ensuring legal certainty, predictability, and fairness for all parties involved.