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Proposed Changes In UCC Address Virtual Currency Financing
Virtual currencies continue to gain acceptance in commercial transactions. As a result, financial institutions are beginning to accept such currencies as collateral for financings. Could this become common for independent film productions and other entertainment industry ventures? However, Article 9 of the Uniform Commercial Code (UCC) falls short of providing adequate guidance on how to create or perfect a security interest in virtual currencies. This uncertainty, and the consequent risks to lenders, are further exacerbated by the lack of helpful case law and non-uniform state laws. Recognizing this problem, the Uniform Law Commission and the American Law Institute in 2019 organized the Uniform Commercial Code and Emerging Technologies Committee to consider changes to the UCC intended primarily to address "digital assets" (a term used but not defined by the Code drafters), such as some virtual currencies.
This article examines the scope of UCC Article 9 with a focus on virtual currencies, taking into consideration issues of classification and perfection, but also how the committee is attempting to tackle these unsettled issues by modifying existing provisions and, in some cases, adding new ones.
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The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
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