The temporal connecting factor
Year: 2026
Type: article
Abstract: A digital asset can be born as one thing and become another. The US Clarity Act follows the asset throughout its life and is built to adapt. MiCA, by contrast, fixes the asset’s nature when it is created. Neither law asks the conflict-of-laws question: which law governs an asset whose legal nature changes over time? This article compares the two models from private international law, sets out the problem their divergence creates, and only then turns to doctrine. Building on the classical search for the seat of the legal relationship, from Savigny to Rabel, it builds a theory of the temporal connecting factor and addresses characterisation, party autonomy, overriding mandatory rules, extends the analysis to jurisdiction, recognition and enforcement, and closes with concrete proposals for the HCCH-UNIDROIT Project.
Author: Cayetana Santaolalla Montoya
Institution: Universidad Pública de Navarra (UPNA)
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W7225751744
FWCI:
Cites:
Cited by:
Related to: