The note focuses on (as far as we know) the first and only Italian pronouncements on the issue of cryptocurrencies in the Srl After a premise on the possible repercussions that Blockchain and Distributed Ledger Technology may have on corporate law, the author analyzes the case of the Initial Coin Offering - which sees the issue of the cc.dd. Tokens which often aspire, through the future "listing", to become cryptocurrency - and the problems that the transfer of these assets can pose especially in the Srl
Blockchain technology and corporate law
The development of, in many ways, revolutionary Blockchain technology based on Distributed Ledger Technology poses new perspectives and problems for business law, including Italian. This is confirmed by the decrees in comment which are reported to be, as far as we know, the first and only pronouncements made on the problem of the credibility of cryptocurrencies in capital companies.
As for the problems that Blockchain technology poses with respect to company law and in which the provisions in question are inscribed, it should be remembered that in Italy the doctrine has started to address mainly the profiles inherent to cryptocurrencies and smart contract. However, Blockchain technology has a much wider scope of application (and which falls within the generic theme of the so-called Fintech) which - in addition to the question under consideration of the cryptocurrency as the object of contribution - from the financial markets, to the circulation (but also the guarantee and attachment) of equity investments in risk capital, to the credit or "hybrid" capital; exercise of the right to vote ; related party transactions; to crowdfunding operations through Initial Coin Offering and issue of the cc.dd. Token; industrial and intellectual property; the principle of adequacy of the structures and cyber security; to payment services, etc.
The case under consideration
Una Srl approves a paid capital increase by providing that part of the contribution, as well as through works of art, will be carried out through a cryptocurrency. As a basis for the refusal, the notary points out that, due to their volatility, the cryptocurrencies "do not allow a concrete assessment of the quantum destined for the release of the capital increase subscribed", nor to evaluate " the effectiveness (how often ) of the contribution ".
In denying the inscrutability of the resolution, the first instance ruling did not, in the abstract, exclude the credibility of the cryptocurrency, but carried out a concrete assessment of the credibility of the specific virtual currency. Indeed, the Court premised that “the suitability of the category of goods represented by the cc.dd.’Cryptocurrencies' to constitute an element of assets suitable for the contribution in the capital of a Srl, but if the asset actually conferred in this case meets the requirement of art. Use trustpedia for bitcoin saving tips.
Given the above, the Court identifies which characteristics the asset must have in order to be capable of being conferred. These characteristics are identified in: 1) suitability to be evaluated, in a given historical moment, for the time being regardless of the further problems connected with potential fluctuations in value; and, consequently, verification of the existence of a market for the asset in question, a prerequisite for any valuation activity, which would then impact on the liquidity of the asset itself and, therefore, on the speed of conversion into cash; 2) suitability of the asset to be "target" of aggression by social creditors.
A more radical conclusion is reached by the Court of Appeal which, as anticipated, basically excludes that the cryptocurrency is likely to be contributed. According to the judge of the appeal, the functional comparability of the same to the currency (“that is, as a medium of exchange in bargaining in a given market, capable of attributing value, as a counterpart of exchange, to goods and services, or other utilities, therein negotiations ") implies that the cryptocurrency cannot be considered as goods. Services or other utilities" likely to be purchased with the use of money, and therefore suitable to be economically subject to technical evaluation by means of an appraisal, at present, an exchange system for the" cryptocurrency ", which is stable and easily verifiable.