Abstract

The present article is dedicated to demonstrating that, in terms of private law, tokenization is not a substantially new phenomenon for securities and that the process is de lege lata possible. The article argues that the provisions of Articles 9216-92116 of the Civil Code, by using a relatively neutral concept of a “document”, have inadvertently created a technology-neutral set of standards that can be used in dematerialization processes, including tokenization, of securities. This is because tokens constitute a digital representation of data which, from the perspective of legal qualification of carriers of statements of intent, is a document within the meaning of Articles 77² and 77³ of the Civil Code. The peculiarity of tokenized securities vis-à-vis their traditional form boils down to the fact that documentary clauses, changing the order of legitimacy and the rules of transferability of rights incorporated in securities, are linked to a digital record and not to a physical document. The article also demonstrates that the numerus clausus principle of debt securities does not apply in Polish law and therefore cannot be an obstacle to tokenization processes. Referring to the theory of documentary clauses, the author argues that there are no obstacles to incorporate such clauses into obligations recorded in the form of tokens. The article proposes a normative description of the creation of tokenized securities, trading of claims represented by them and the rules of exercising rights from such securities.