From melting borders to fading people

Sat 21 June 2025, Philippe Ropenga Digital assets Artificial intelligence Estate management

Learning trusts is often seen as useless in France because trust is a foreign concept that is not known to most French people. As you know since 2018 Christmas cracker¹, this formal objection leaves issues related to values unanswered. Learning fiduciary law enables the French practitioner to address them directly by spotting conflicts of interests as in Phipps v Boardman² that still is my favourite case.³. Anyone educated in trusts knows that when it comes to property or estate management, tracing the legal title is not enough because the legal title to a piece of property gives no indication about what needs to be done with it.⁴

People who deal with digital assets tend to focus on tracing, tracking, and modifying things done by others, sometimes without paying attention to the author, especially in an open-source context.⁵ This is bad practice because the person who possesses a thing exercises power over it notwithstanding the legal title to it and can make the most out of it.⁶

Law is necessary to enable people to satisfy their needs, not to decide who is right or wrong. Compliance can be used instead of law to achieve this task. Big Tech are powerful because they can decide how people who use their services or products interact with others. This is a matter of possession, not of legal title. Law connects people together; compliance focuses on the product or service. Compliance relies on formalities; big companies can deal with them better than small ones because they can hire people who will specifically monitor the firm's compliance.

Paperwork standardisation is convenient in a cross-border context since it fosters freedom of circulation. Nevertheless, in a context of melting borders, you know that it is important to make one own values clear and to make sure that the wording of a document reflects the life of its author.⁷ When I wrote this earlier blog post, I thought that the concept of melting borders was somewhat psychedelic and yet I felt the need to pay greater attention to the context of a given matter. As you know, processing context with a machine is a thorny issue because machines process only data but this obvious obstacle does not deter political leaders from promoting the ethical regulation of artificial intelligence though ethics are based on a social consensus that cannot be measured to fit any kind of data-processing regulation. One may impose constraints to create processes that could be seen as compliant⁸. Fiduciary law casts an interesting light on digital assets. It is useless to care about creativity when the only thing that matters is the compliance of the creation process. No one has to care about the author's best interests because the process matters more than the person; the author is fading. Is this hypothesis psychedelic? Surrogacy pregnancy is illegal in France, but the filiation with no biological connection between a parent and a child born aboard from surrogacy can be transcribed into civil status registers provided that the surrogacy agreement is well written and informed consent has been given.⁹ Hence, the best interests of a child will probably be debated above all in case of doubt regarding the surrogacy agreement; the service matters more than the person.

In brief, pay attention to people behind processes if you do not want the value of digital assets to be captured by those who possess the processing infrastructure.

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