Cryptoassets, non-fungible tokens and consumer protection. The High Court rejects jurisdiction in Soleymani v Nifty, re-igniting the opaqueness of the arbitration exception under Brussels Ia.

In Amir Soleymani v Nifty Gateway LLC [2022] EWHC 773 (Comm) Abrose J largely rejected jurisdiction for the English courts in a claim following auction brought by a UK-based digital artwork collector. Another part of the claim was stayed pending arbitration in New York.

Faced with a clause in Nifty’s general terms and conditions that provide for binding arbitration in New York and for New York law to be the governing law of the contract, claimant seeks a declaration that the arbitration agreement was unenforceable due to it being unfair under the UK Consumer Rights Act 2015. Alternatively, he argued the governing law clause is invalid on the same statutory ground, and that a contract arising from the auction is void for illegality pursuant to the UK Gambling Act 2005.

Of note is that the US based arbitrator, in the proceedings initiated by Nifty, is considering himself (with procedural and discovery orders having been issued) broadly similar issues under consumer protection provisions of the ADR provider.

At [34] the qualification of NFTs as ‘art’ or merely ‘technology’ [‘the nature of NFTs as assets, and whether they are artwork, with the Claimant’s position being that he was trading in digital art whereas the Defendant maintained that an NFT is merely a unique string of code stored on a blockchain ledger that makes a digital artwork accessible, and marks authenticity’] is announced as potentially relevant for substance but not for current application.

The discussion largely takes place under retained EU law (s15b of the Civil Jurisdiction and Judgments Act 1982 (as amended)). The judge holds [55] that the claim falls within the arbitration exception of (retained) Brussels Ia seeing as, as she qualifies it

The principal focus and subject matter of Mr Soleymani’s claim is whether he is legally obliged to arbitrate.

Recital 12 BIa is called upon in support. Claimant ([49]-[50] in particular are a good summary of the position) essentially argues such a view is incompatible with the effet utile of the consumer title. I believe that point has merit and one imagines it will be on this point that appeal will be sought (Bitar v Banque Libano-Francaise was offered in some support).

Whether the contract is a ‘consumer’ contract is still discussed [62] ff viz the claim for declaratory relief regarding the unfairness of the arbitration clause under the Gambling Act. The judge holds [79] that on the evidence put forward, Claimant has the better of the argument as to whether the Defendant was directing commercial activities to England (and the UK more generally). However she decides to grant the defendant a stay (which would not have been possible pre-Brexit) in favour of the unfairness issues being discussed in the New York arbitration. (These issues may later return to a UK court in the shape of an ordre public opposition to enforcement of the award in the UK).

I will of course notify if and when permission to appeal will have been granted.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.2, and 2.2.9.2.

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