I. Introduction
The entry into force of the Markets in Crypto-Assets Regulation (hereinafter, MiCA)Footnote 1 consolidates what could be described as a phase of market ordering Footnote 2 in the governance of blockchain and digital assets in the European Union, marking a regulatory turn in the way these technologies and assets are approached within the EU legal order.Footnote 3 Rather than representing an isolated regulatory intervention, MiCA forms part of a broader process through which blockchain technologies and crypto-assets have gradually acquired regulatory legitimacy. This evolution has coincided with the increasing engagement of established financial institutions with distributed-ledger technology, tokenised assets and related digital-finance infrastructures, reflecting a shift from viewing these innovations primarily as sources of regulatory concern to recognising their potential role within mainstream financial markets.Footnote 4
Through MiCA – together with other key EU regulatory instruments, such as the recast Transfer of Funds Regulation (hereinafter, TFR),Footnote 5 the Digital Operational Resilience Act (hereinafter, DORA)Footnote 6, the Directive on Administrative Cooperation in tax matters as amended for crypto-assets (hereinafter, DAC8)Footnote 7, and the Distributed Ledger Technology Pilot Regime (hereinafter, DLT Pilot Regime)Footnote 8 – the EU has developed a bespoke substantive framework for the regulation of digital assets. Although this emerging framework still displays significant gaps – excluding from its scope, for instance, fully decentralised blockchain platforms and, in most cases, non-fungible tokensFootnote 9 – it nevertheless represents a robust attempt to govern the vast majority of crypto-asset transactions and is frequently regarded as a regulatory blueprint for other jurisdictions to follow. More broadly, this development reinforces the narrative of the EU as a “digital empire” – alongside the United States and China – distinguished by its commitment to producing digital regulatory models that place the protection of fundamental rights at their core.Footnote 10
This trend towards crypto-asset regulation, while particularly pronounced in Europe, does not stand in isolation. Rather, it has been accompanied, to varying degrees, by comparable regulatory initiatives across other jurisdictions. The adoption of the UNIDROIT Principles on Digital Assets and Private Law (2023),Footnote 11 the enactment in the United States of the Guiding and Establishing National Innovation for U.S. Stablecoins Act of 2025 (hereinafter, GENIUS Act)Footnote 12, and the efforts of other jurisdictions – notably Japan, Singapore and the United KingdomFootnote 13 – to establish substantive legal frameworks for different aspects of digital assets reflect not only a desire to regulate, but also an intention to legitimise and facilitate the use of crypto-assets, particularly within the financial sector. In the United States, this enabling approach was further reinforced in March 2026, when the Securities and Exchange Commission and the Commodity Futures Trading Commission issued a joint interpretive release clarifying the application of federal securities and commodities laws to crypto-assets.Footnote 14
This regulatory turn, however, does not represent a linear evolution in the governance of blockchain and digital assets. Following the advent of Bitcoin in 2008 – the first real-world application of blockchain technology – and throughout the early 2010s, blockchain and digital assets were widely regarded by regulators and other institutional actors as “a-legal,” “unregulated” or even “unregulatable.”Footnote 15 These perceptions were driven primarily by two considerations. The first was the inherent difficulty of regulating decentralised networks, in which no central actor or entity can readily be identified as accountable for legal violations. The second was the widespread use of digital assets – particularly Bitcoin at that stage – to facilitate illegal activity. Empirical research has estimated that, between 2009 and 2017, approximately 46% of Bitcoin transactions were associated with illicit activity.Footnote 16 Against this backdrop, it is unsurprising that regulators generally sought to discourage the use of digital assets, emphasising the risks they posed to consumers and investors, as well as to the stability and integrity of the broader financial system.Footnote 17
This article traces the broad contours of the transition by which blockchain technologies and the digital assets they enable – once widely regarded by policymakers and regulators as a-legal or illegal, and as vehicles for the abuse of investors and consumers – have come to constitute a highly regulated field. It considers how increasingly established institutional actors, including central banks, credit card companies, and financial intermediaries, have begun to consider or implement blockchain technologies and digital assets in their operations within an increasingly robust legal framework.Footnote 18
For this purpose, the article traces the broad contours of a genealogy of the emerging regulation of blockchain and digital assets. Rather than focusing on the legal rules per se, this genealogical approach seeks to identify the evolution of legal consciousness,Footnote 19 “understood as a vocabulary, of concepts and typical arguments,”Footnote 20 which then leads to a specific legal language, composed of the rules that materialise those ideas. It claims that the growing movement towards the institutionalisation and regulation of blockchain and digital assets indicates a change in legal consciousness involving argumentative moves and the elaboration of concepts that often remain in the background of regulatory discussions, and which this paper seeks to unearth. This genealogy is necessarily incomplete and should be understood as a first step towards a broader research agenda, leaving important questions and gaps to be addressed in future work. Indeed, several contributions to this Special Issue engage with themes and problems that extend beyond the scope of the genealogy developed here, highlighting additional dimensions of blockchain and digital asset regulation that warrant further conceptual and doctrinal inquiry.
In elaborating this genealogy, which recognises a global tendency towards the regulation and institutionalisation of blockchain and digital assets, the paper also seeks to identify whether there is a European specificity – or advantage – in this realm. After all, Europe no longer stands alone in its efforts to regulate digital assets. This is particularly true of stablecoins, which are now governed in the EU by MiCA, but are also subject to dedicated regulation in the United States through the GENIUS Act, in Japan through the amended Payment Services Act, and in Singapore through the framework finalised by the Monetary Authority of Singapore in 2023.Footnote 21
To examine this topic, the paper proceeds in six further parts. Part II sets out the overall scheme of the genealogy, proposing that the governance of blockchain and digital assets has moved through three main eras: an era of low legal salience – in which these technologies were widely framed as a-legal – an era of risk-control, and an era of market ordering. Parts III, IV and V examine each of these eras in turn, with particular attention to the European trajectory, read against comparative developments in the United States and beyond. Part VI turns to the path ahead, examining three frontiers along which the market-ordering era is likely to be tested: the regulation of decentralised platforms, the future treatment of non-fungible tokens, and the expansion of stablecoin issuers into the infrastructure of payment networks. Part VII concludes, drawing together the genealogy and its implications, and presents the seven contributions to this special issue, which examine specific dimensions of the field explored in this article.
II. The overview: elements for a genealogy of the regulation of blockchain and digital assets
Different legal studies have attempted to study legal consciousness and to examine how it has evolved over time, delineating genealogies of legal thought.Footnote 22 Most efforts of this kind operate at a significant level of generality, but some attempts have been made to construct such genealogies in the realm of digital law.Footnote 23 In the specific field of blockchain, the theoretical literature supplies the raw material for the genealogy proposed.
The first era identified here is characterised by low legal salience. During this period, blockchain technologies and digital assets remained largely outside the scope of bespoke legal and regulatory frameworks. They were primarily understood through their perceived relationship to existing legal orders rather than through dedicated legislation or regulation. Legal scholarship therefore focused less on the content of positive law than on the extent to which blockchain might circumvent, replace or transform conventional legal institutions.Footnote 24
The first era finds strong support in the legal-theoretical scholarship on lex cryptographia and “code as law”: by embedding rules directly in software execution,Footnote 25 substituting distributed executable rules for centralised legal enforcement,Footnote 26 and transgressing the temporal, spatial, material and subjective boundaries of ordinary legal orders,Footnote 27 blockchain was theorised as an inherently global normative order of its ownFootnote 28 – even as a challenge to the symbolic foundations of law itself.Footnote 29 Yet the same scholarship supplies the decisive qualification: none of these authors concludes that blockchain in fact escapes law. The question, as De Filippi, Mannan and Reijers put it, is not whether law can regulate blockchain, but how – through governance structures, social norms, market pressure and the allocation of legal responsibility.Footnote 30 “A-legality” is therefore best understood as the discursive starting point of the field – a component of its early legal consciousness – rather than a settled historical fact. It is precisely this trajectory, from a-legality as self-description to regulation as accomplished fact, that the genealogy developed below traces.
In the second era, the prevailing legal consciousness is that of negative regulation: crypto is regulated in order to be contained, not in order to exist. The purpose of the law in this era is defensive – to prevent money laundering, to protect consumers against a phenomenon that is officially discouraged, to tax gains, and to shield the regulated financial system from contamination. Its instruments are correspondingly restrictive in character – warnings, registration and reporting duties, product and promotion bans and, at the extreme, outright prohibition – typically imposed at the points where crypto meets regulated finance.Footnote 31 Its vocabulary is a vocabulary of risk: “virtual currencies,” “obliged entities,” suspicious transactions. What the second era never asks is what a well-functioning market in crypto-assets would look like; its only question is how much damage an unregulated one can do. Crypto is identified, monitored and contained – but never organised.
The third era, by contrast, corresponds to a legal consciousness of market regulation, or market ordering. Here the orientation of the law is inverted: regulation no longer aims merely to suppress the risks of a tolerated phenomenon, but to constitute a lawful market for crypto-assets – to define who may issue and trade them, on the basis of what disclosures, under what prudential safeguards, and with what rights for holders. It is this positive, enabling character that distinguishes the era. Regulation now performs a legitimating and not only a disciplining function, for an intelligible legal framework is what allows compliant firms to escape adverse selection, established institutional actors to participate, and activity to scale across borders. The law, in short, no longer polices a danger; it organises a market.
Notably, this genealogy is jurisdictionally uneven. Japan and Singapore moved into framework-based regulation earlier than the EU; China moved from uncertainty to a near-total prohibition rather than to market-building regulation; and the United States possesses a stablecoin statute and joint interpretive guidance, but still lacks a fully enacted general market-structure statute.Footnote 32 The first era, moreover, should not be described as one of “no law whatsoever”: general fraud, tax, securities, commodities, contract, property and money-transmission law always remained potentially applicable. What was absent – especially in Europe – was a dedicated, positive, purpose-built crypto framework. It is in this precise sense – crypto-specific legal absence, or low legal salience – that the first era should be understood.
III. The first era of blockchain governance: low legal salience
The first era is marked by the absence of bespoke blockchain regulation. Traditional, pre-existing legal frameworks potentially applied to certain risks posed by blockchain technologies, but could only imperfectly or insufficiently address them. This is the era to which the notion of the a-legality of blockchain technologies comes closest – though imperfectly – to defining the prevailing status quo.
In 2008, in the wake of the crisis of trust in governments and traditional financial institutions that accompanied the global financial crisis, Bitcoin was proposed. As described in its White Paper, this form of electronic money was presented as an alternative currency, enabled by cryptographic proof and independent from the financial institutions that had traditionally served as intermediaries guaranteeing financial transactions.Footnote 33 The currency was introduced as inherently global – transferable worldwide without restriction, owing to its decentralised network model – and free from the oversight of governments, regulators or large financial institutions. This description evokes the libertarian, cypherpunk movement of the early internet era, which considered the network an instrument to promote freedom of expression and independence from governments and powerful private actors.Footnote 34
Accordingly, as the first real-world use case of blockchain technologies, Bitcoin was conceived to be beyond the reach of traditional regulatory agents and institutional actors. For a long time, Bitcoin remained the sole real-world application of blockchain – and one that was not initially on the radar of regulators. On the one hand, it took considerable time for any Bitcoin exchange to occur at all: the first transfer of Bitcoin between two persons is recorded only in block 170 of the chain, in January 2009, when Satoshi Nakamoto transferred coins to the developer Hal FinneyFootnote 35; the initial blocks register only the bitcoins rewarded to those who mined new blocks. In addition, the first Bitcoin transaction used to effect a real-world payment did not occur until May 2010, when the programmer Laszlo Hanyecz paid 10,000 bitcoins in exchange for two pizzas – an amount that would be worth over USD 600 million at July 2026 valuations – and that exceeded one billion US dollars at Bitcoin’s 2025 peak.Footnote 36 The episode was mostly held up as anecdotal, rather than as the first step towards the development of an institutionalised means of payment or investment.
In the early 2010s, however, transactions involving Bitcoin rose rapidly. This history is closely connected with the Silk Road platform, a darknet marketplace once dubbed the “Amazon of drugs.”Footnote 37 Through this platform – accessible through the Tor browser, which conceals users’ identities by routing and re-routing their connections – different types of illegal substances could be procured, hackers hired, and other criminal services requested. Users would pay in Bitcoin, in transactions that could hardly be traced by regulators. During this period, a very substantial share of all Bitcoin activity was estimated to be connected to illegal transactions of this kind.Footnote 38 The network was eventually shut down by the FBI in October 2013, after roughly two and a half years of existence and an estimated USD 1.2 billion of illegal transactions enacted through Bitcoin on its platform.
The prevailing narrative in this context was the notion of a-legality.Footnote 39 Blockchain technologies were considered beyond the reach of legal systems. Their decentralised nature made it difficult to identify the potential sources of violations and to hold a specific individual or entity accountable. The global reach of the network also made it challenging for potential regulation to be effective: no single jurisdiction was likely to be able to shut down a network composed of nodes spread worldwide. These elements would arguably generate an unregulatable network. The existing, traditional legal frameworks, while potentially applicable to some of the risks involving these technologies, were often seen as insufficient to address them properly. This was the case, for instance, of the criminal investigations surrounding darknets such as the Silk Road platform, conducted on the basis of traditional criminal law frameworks that were clearly insufficient to provide adequate answers to the risks the platform posed.Footnote 40
This prevailing legal consciousness of low legal salience is widely documented in the regulatory discussions of the period in the EU. A 2012 report of the European Central Bank (ECB) described “virtual currencies” – an early denomination under which crypto-assets were then subsumed – as “unregulated, digital money.”Footnote 41 In 2014, the European Banking Authority (EBA) recalled that it had warned consumers in 2013 that virtual currencies were not regulated and that their risks were therefore unmitigated, while treating as still open the question whether these platforms would be regulated at all.Footnote 42 The absence of such regulatory frameworks not only left risks unmitigated; it also denied blockchain and digital assets the legitimacy required to operate more broadly throughout the economy. Notably, later EU legislation itself confirms this reading: the Union legislator has expressly described the Fifth Anti-Money Laundering Directive of 2018 as the first Union legal instrument to address the money-laundering and terrorist-financing risks posed by crypto-assets.Footnote 43 Until then, in other words, there was law around crypto, but no law of crypto.
IV. The second era: the phase of risk-control
The second era of blockchain regulation involves the emergence of bespoke rules (or guidances) specifically targeted at controlling the risks presented by these technologies, particularly through anti-money laundering (AML) measures, tax rules, and perimeter controls defining which crypto-assets or related entities fall within the scope of financial law. Its defining feature was negative regulation. Rather than establishing a comprehensive legal framework for blockchain activities or recognising digital asset markets as legitimate objects of regulation, states imposed targeted obligations on intermediaries – such as exchanges, custodians, brokers, and other service providers – to prevent money laundering, improve tax compliance, curb illicit finance and mitigate consumer harm. Crypto was thus regulated principally as a source of regulatory risk to be identified, monitored and contained, rather than as an economic activity to be authorised and governed. This approach fell far short of structuring a coherent market order.
In 2015, the platform Ethereum – proposed in a 2013 white paper by the Russian–Canadian developer Vitalik ButerinFootnote 44 – was launched, greatly expanding the range of use cases to which blockchain technologies could be deployed. Based on the notion that a blockchain is, in essence, a ledger or database that can serve different purposes and business applications – not merely an “accounting machine” tracing the exchange of bitcoins – Ethereum enabled the use of smart contracts operating on top of the blockchain to develop more sophisticated applications, ranging from decentralised lending and exchange protocols to the tokenisation of assets, decentralised autonomous organisations and, later, non-fungible tokens. While Ethereum was the forerunner of programmable blockchain technology, other blockchain platforms followed, greatly expanding the scope and circulation of blockchain and digital assets.
This expansion created new risks and disseminated existing ones, making apparent the need for a regulatory framework to address them. The strategy that emerged in Europe is reflected in the EBA’s 2014 Opinion, which proposed a short-term regulatory response in terms of a double movement.Footnote 45 First, shielding regulated finance from crypto-assets, by discouraging credit institutions, payment institutions and e-money institutions from “buying, holding or selling virtual currencies.” Second, bringing the fiat/crypto interface into the AML framework, by recommending that virtual-currency exchanges be made “obliged entities” under the EU anti-money laundering regime until a fuller framework could be built.
This strategy came to fruition with Directive (EU) 2018/843 – the Fifth Anti-Money Laundering Directive (AMLD5) – which extended the AML/CFT framework to providers engaged in exchange services between virtual currencies and fiat currencies and to custodian wallet providers.Footnote 46 The Directive required platforms facilitating the exchange of digital assets to identify their users, making it more difficult for anonymity to shield illegal activities conducted through crypto-assets. The same logic was globalised in 2019, when the Financial Action Task Force updated its Recommendation 15 to subject “virtual assets” and “virtual asset service providers” to AML/CFT controls worldwide.Footnote 47 Alongside AML rules and supervisory guidelines discouraging the dissemination of crypto-assets, national tax authorities began clarifying that gains arising from their sale or exchange could be subject to existing income-tax or capital-gains-tax rules.Footnote 48
Besides anti-money laundering and tax rules, financial rules were also relevant for crypto-asset regulation in this era. Crypto-assets qualifying as financial instruments under MiFID II were never outside financial law at all: they were always subject, in principle, to the full financial-services acquis Footnote 49 – prospectus requirements, market-abuse rules, authorisation and conduct obligations.Footnote 50 Yet this pre-existing applicability was itself an expression of the second era, not an anticipation of the third. MiFID applied to tokens not as crypto-specific law, but by subsumption: a token that happened to qualify as a transferable security – and most crypto-assets in circulation would not qualify as suchFootnote 51 – fell into the general regime. And the route remained largely latent: it operated less as a functioning market-structure regime for crypto than as a contested classification threshold, with national interpretations of the notion of “transferable security” diverging across Member States.Footnote 52 The perimeter of financial law was thus policed case by case – one more manifestation of the defensive posture of the era, in which the law’s question was whether a token had strayed into its territory, not how a market in tokens should be organised.
Outside Europe, the second era unfolded in distinctive registers, and a brief overview suffices to convey the range. The United States entered it earlier and more decisively than the EU – and remained in it far longer. From 2013 onwards, federal agencies successively extended existing legal categories to crypto: exchangers were treated as money-services businesses,Footnote 53 virtual currency as taxable property,Footnote 54 and bitcoin as a commodity,Footnote 55 while New York pioneered state licensing through the “BitLicense”Footnote 56 and the SEC’s 2017 DAO Report brought token offerings within the reach of securities law.Footnote 57 In the years that followed, guidance and enforcement – rather than bespoke legislation – served as the principal American regulatory technology: crypto was identified, taxed and monitored through old categories stretched over a new phenomenon. China, by contrast, shows that the second era did not everywhere evolve towards market-building: successive notices moved from warning, in 2013, that Bitcoin lacked the status of currency, to halting token offerings in 2017, to declaring virtual-currency business activities illegal financial activities altogether in 2021Footnote 58 – a prohibitionist branch of the genealogy in which crypto is not merely contained but excluded.
While at the Union level the panorama indicated only a framework oriented towards risk-containment, at the level of EU Member States a more ambitious architecture was already in the making. Malta’s Virtual Financial Assets Act, effective 1 November 2018, explicitly regulated initial VFA offerings and VFA service providers.Footnote 59 France’s PACTE law of 2019 created the legal status of digital-asset service providers (prestataires de services sur actifs numériques, PSAN), with mandatory registration and an optional approval regime, alongside an optional visa for ICOs.Footnote 60 Germany, through the act implementing amendments to the Fourth AML Directive, folded crypto custody business into the Banking Act as a new regulated financial service from 1 January 2020, requiring authorisation.Footnote 61 These enactments show Member States moving from vacuum to explicit perimeter regulation – and, in the French and Maltese cases, towards partially enabling frameworks – before the Union as a whole did. They can be seen as forerunners of the next phase of EU regulation in this field, with its more ambitious objective of structuring the market. They also carry an important lesson for the genealogy: market-building did not suddenly begin with MiCA; rather, MiCA consolidated and harmonised an enabling logic that some Member States had already pioneered.
V. The third era: the market ordering of blockchain and digital assets
The third era is characterised by a change in the very purpose attributed to regulation. Whereas the second era regulated crypto in order to contain its dangers, the third era regulates crypto in order to constitute a lawful, intelligible and scalable market for it. A more encompassing regulation, in this sense, does not mean total control over decentralised systems. It means a move from pointed interventions to broader frameworks covering issuance, intermediation, disclosure, market conduct, prudential and reserve rules, authorisation, and cross-border supervision – frameworks that simultaneously constrain and legitimate the sector. This section examines the European framework first, before situating it comparatively.
As in the previous eras, MiCA and its analogues still regulate intermediaries – issuers, exchanges, custodians, service providers – rather than protocols, and the addressable entity remains the basic unit of regulatory technique. The third era does not overcome intermediary-based regulation, but it generalises and transforms it.
The distinction between the second and the third eras lies in four registers. First, in function: the second era regulates intermediaries negatively, to contain risks and police the border between crypto and regulated finance – mostly the shielding logic of the EBA’s 2014 Opinion – whereas the third regulates them constitutively, to confer a lawful status under which the activity may be carried on and scaled. Second, in scope: second era regulation regulated crypto-assets mostly for a narrow set of concerns (particularly those not covered by financial law, which constituted the majority) – AML/KYC, tax reporting, consumer warnings – whereas market ordering covers the entire lifecycle of the asset: issuance, disclosure, conduct of business, market abuse, prudential and reserve requirements, and redemption rights. Third, in legal form: the second era proceeded by retrofitting pre-existing categories – the “obliged entity,” the “money services business,” the “security” – through guidance and enforcement, whereas the third proceeds by bespoke legislation creating new legal statuses – the authorised crypto-asset service provider, the authorised issuer of asset-referenced or e-money tokens – endowed with authorisation, passporting and continuing supervision. Fourth, in effect: to be an obliged entity is to be tolerated; to be an authorised service provider is to be legitimated. An analogy may make the point vivid: subjecting banks to anti-money laundering duties is not banking law; a banking act – licensing, capital, conduct, resolution – is. The second era gave crypto its AML duties; the third gives it its banking act. And precisely because the third era generalises rather than transcends the intermediary-based technique, its gaps are structural rather than accidental: fully decentralised platforms, decentralised autonomous organisations and non-custodial arrangements fall outside its perimeter not by oversight, but because they supply the law with no addressee.Footnote 62
1. The EU framework: MiCA and its legislative ecosystem
The European Commission’s 2020 MiCA proposal was explicitly framed as part of the Digital Finance Package, intended to enable and support innovation and competition while mitigating risks.Footnote 63 The enacted Regulation states that a dedicated, harmonised framework is needed for crypto-assets not covered by existing financial-services legislation, and that such a framework should support innovation and fair competition while ensuring retail protection and market integrity. The Commission now presents EU crypto legislation as a comprehensive framework that allows issuers and service providers licensed in one EU jurisdiction to scale within the single market through an EU passport.
The MiCA Regulation entered into force in June 2023; its rules for asset-referenced tokens and e-money tokens began to apply on 30 June 2024; and the remainder applied from 30 December 2024.Footnote 64 This is a genuine shift from perimeter policing to ex ante market organisation for most crypto-assets: authorisation of issuers and service providers, mandatory white papers, conduct rules, prudential requirements, market-abuse controls and a Union-wide passporting logic.
MiCA’s relationship to the pre-existing securities-law perimeter illustrates the transition to the third era with particular clarity. As seen in Part IV, MiFID applied to only a minority of crypto-assets, and only through case-by-case classification as financial instruments. With MiCA, by contrast, crypto-assets that do not qualify as financial instruments are brought within a EU dedicated regulatory framework, while those that do qualify remain governed by the traditional regime.Footnote 65 In addition, the DLT Pilot Regime adapts the traditional trading and settlement infrastructure to tokenised financial instruments, addressing the infrastructural limitations of the existing regime. The resulting architecture is dual-track: for crypto-assets governed by traditional financial law, the third era confirms and adapts the existing regime; for those outside it, it constructs a market order that previously did not exist. A market order presupposes comprehensive regulatory coverage and a defined perimeter, for issuers and service providers can organise their activity only around a regulatory framework whose scope is defined in advance.
The EU’s third era, moreover, is broader than MiCA alone. The recast TFR extends travel-rule-style traceability requirements to crypto-asset transfers. DAC8 extends administrative tax cooperation to crypto-assets, imposing due diligence, reporting and automatic-exchange obligations on crypto-asset service providers. The DLT Pilot Regime, as previously mentioned, creates a temporary Union framework for DLT-based market infrastructures, expressly designed to remove regulatory obstacles to the use of DLT in market infrastructures for financial instruments. DORA subjects the sector to horizontal requirements of digital operational resilience. Taken together, these measures reveal a maturing legal order: AML, tax, prudential supervision and market access are no longer ad hoc edges responses to crypto, but components of a coordinated legislative ecosystem. It is this integration rather than the sheer quantity of rules, that defines the market-ordering era.
2. Beyond Europe: convergence and divergence
The United States displays a distinct pattern: a long second era and only a partial transition into the third. The current period nonetheless differs qualitatively from the enforcement-heavy years that preceded it. The SEC created a Crypto Task Force in January 2025 and dismissed its civil actions against Coinbase and Binance in the course of its 2025 pivot; Congress enacted the GENIUS Act in July 2025 for payment stablecoins; the Treasury began implementation through requests for comment and a proposed rule on illicit-finance requirements; and in March 2026 the SEC and CFTC issued their joint interpretation clarifying token categories.Footnote 66 The GENIUS Act is a genuine federal enabling statute: it centres reserve quality, public disclosures, redemption, marketing controls, AML and sanctions obligations, and a federal-state supervisory architecture. Yet the broader market-structure settlement remains incomplete. Although the CLARITY Act would establish a comprehensive market-structure framework by allocating regulatory responsibilities between the SEC and the CFTC and creating a dedicated regime for digital assets, it remains only a proposed bill.Footnote 67 The aforementioned SEC/CFTC release, although significant, likewise does not fill that gap: it is an administrative clarification of how existing securities law applies to crypto-assets rather than a congressional statute establishing a comprehensive market-structure framework comparable to MiCA. As a result, the United States now has a comprehensive federal framework for stablecoins, but only a partial one for the wider crypto market.
Asia presents a distinct trajectory in relation to the Eurocentric chronology. JapanFootnote 68 and SingaporeFootnote 69 adopted comprehensive regulatory frameworks for crypto-assets well before the EU, albeit by building on existing payments and financial-services legislation rather than through a single omnibus regulation like MiCA. The United Kingdom, by contrast, remains in transition: although it has progressively brought more crypto-asset activities within the scope of financial regulation, its development of a comprehensive market-ordering framework is still incomplete.Footnote 70 China, meanwhile, represents a prohibitionist branch of the genealogy rather than a stage within it.
3. A European specificity?
What, then, remains of the claim to a European specificity or advantage? Two observations can be advanced. First, the EU is, to date, the only jurisdiction to have enacted a single, omnibus, cross-sectoral crypto-asset code with continental passporting – a legislative form that Japan and Singapore achieved only functionally, through payments law, and that the United States has achieved only for stablecoins. Second, the EU model is distinctive in its integration of market ordering with fundamental-rights-adjacent commitments – data protection, consumer protection, alongside robust operational resilience requirements – consistent with the broader “digital empire” account of European regulatory identity.
VI. The path ahead: three frontiers of the market-ordering era
The genealogy traced in this article is evolving. Three frontiers can already be identified along which the market-ordering era is likely to be tested – and, perhaps, transformed – in the coming years: the regulation of genuinely decentralised platforms; the future treatment of non-fungible tokens; and the expansion of stablecoin issuers into the infrastructure of payment networks. This Part examines each in turn.
1. Decentralised platforms: from addressees to points of intervention
As Part V has argued, one structural gap of the third era lies where the law finds no intermediary that could be indicated as legally accountably. An emerging response to that gap is a change in the regulatory question itself: rather than asking who is the intermediary, regulators and scholars increasingly ask where are the points of intervention. Schuler, Cloots and Schär propose a framework to assess the factual decentralisation of blockchain-based financial infrastructure across the layers of the DeFi stack – settlement layer, assets, protocols, applications and aggregators – and identifies the “centralization vectors” present at each: administrator keys and restricted functions (blacklists and whitelists, minting rights, emergency stops, upgradable contracts), concentrated token-based governance, reliance on oracles and bridges, external promises of off-chain delivery, and centrally operated front-ends.Footnote 71 Such vectors may be endogenous to a project or “inherited” from its dependencies, and they carry a double regulatory significance: they indicate that a project has custodial-like properties warranting regulation in the first place, and they reveal the avenues of control – the appropriate regulatory hooks – through which obligations can be imposed. On this view, much of what circulates under the DeFi label is better described as “on-chain CeFi”: blockchain-based financial intermediation that can, and should, be regulated in line with its off-chain counterparts, under the principle of “same activity, same risk, same rules.”
Points-of-intervention analysis does not transcend the intermediary-based technique of the third era; it generalises it one step further, locating intermediation functionally – in control over restricted functions, governance and interfaces – rather than institutionally, in the existence of a firm. The European legislator has, in a sense, programmed its own confrontation with this question: MiCA’s review clause requires the Commission to assess the development of decentralised finance and the appropriateness of a bespoke regulatory regime for it.Footnote 72
Where no such vectors remain – where decentralisation is genuine – the points-of-intervention approach reaches its limit, and the complementary proposal of De Filippi, Mannan and Reijers becomes salient: regulation via governance, in which the law acts not by command over an addressee, but by shaping the on-chain and off-chain governance of blockchain communities, their social norms, their market environments and the allocation of legal responsibility among developers, token holders and users.Footnote 73
2. Non-fungible tokens and the limits of MiCA
The second frontier concerns non-fungible tokens. MiCA excludes from its scope crypto-assets that are “unique and not fungible” with other crypto-assets – but the exclusion is narrower, and less stable, than it first appears.Footnote 74 Fractionalised tokens are not considered unique, and issuance in a large series or collection may be treated as an indicator of de facto fungibility, with MiCA thus covering NFTs in those circumstances. The qualification is thus functional rather than formal, and it generates uncertainty regarding the potential coverage of these assets under MICA. This will likely have to be settled by supervisory guidance, case-by-case qualification, or a further legislative round. Here too MiCA programs its own extension: the review clause directs the Commission to assess the development of markets in unique and non-fungible crypto-assets and the necessity of a dedicated regime.Footnote 75
3. Stablecoin issuers as payment infrastructure
The third frontier arises not from a gap in the third era, but from its success. By legitimating stablecoin issuance – through MiCA’s e-money token regime in the EU and the GENIUS Act in the United StatesFootnote 76 – the market-ordering era has opened the way for stablecoin issuers to become operators of payment infrastructure. Circle’s Payments Network is the clearest example: launched in 2025, it connects banks, payment service providers and enterprises for continuous cross-border settlement in Circle’s own stablecoins, with Circle writing the network’s rulebook and defining its protocol.Footnote 77 A stablecoin issuer has become, in effect, the operator of the settlement infrastructure through which stablecoins circulate. That transformation shifts the regulatory focus: issuer-focused prudential rules – reserves, redemption, disclosure – are built for an entity offering an instrument to holders, whereas operating payment infrastructure entails governance over access, settlement rules, participation criteria, interoperability and operational resilience – the traditional concerns of payment-system regulation rather than issuer regulation.
VII. Conclusion: the trajectory ahead
The genealogy developed in this article can now be restated with greater precision. The first era was not one of “no law whatsoever,” but of crypto-specific legal absence and low legal salience: general law existed around crypto, but there was no law of crypto, and the prevailing legal consciousness framed the technology as a-legal or unregulatable. The second era was one of “containment” regulation. States addressed the risks that crypto-assets posed to existing legal interests through AML, tax and financial regulation. Even in the financial sphere, however, regulation remained partial: crypto-assets were governed only where they could be accommodated within pre-existing legal categories, most notably as financial instruments, rather than as crypto-assets in their own right. The third era – clearest in the EU, partial in the United States – is one of market ordering, in which law defines lawful issuance, custody, trading, disclosure, prudential structure and cross-border scalability in a way that simultaneously disciplines and authorises the sector. Blockchain regulation, in short, has moved from a narrative of unregulatability, to constraining regulation, to market ordering – even if still incomplete.
Looking ahead, the frontier of the third era lies at its structural gaps – decentralised platforms, non-fungible tokens and stablecoin-based payment infrastructure – where, as Part VI has argued, the authorised-intermediary model will be tested and, in all likelihood, refined. How those tests unfold will differ across jurisdictions. What the trajectory from a-legality, to constraining regulation, to market ordering ultimately reveals is a transformation of legal consciousness: technologies once framed as beyond the reach of the law are now organised by it, and the question that remains is not whether blockchain and digital assets will be regulated, but how the frameworks now in place will adapt to what they do not yet capture. In that sense, the genealogy developed in this article is less a closed narrative than an account of an ongoing process of institutionalisation – one in which the law has learned, gradually and unevenly, to govern what it once declared ungovernable.
1. The contributions to this special issue
This article opens a special issue devoted to the emerging regulation of blockchain and digital assets. The seven contributions that follow approach the field on their own terms, but the genealogy developed above offers one lens through which they may be read: they speak, in different ways, to the private-law foundations on which any market order must rest, to the instruments of the market-ordering era, and to the frontiers towards which it is moving. Each is briefly presented in turn.
In “DAO Token Transferability: Property, Contract, and Technology,”Footnote 78 Joseph Lee and Alexandre Fricotté examine the legal dimensions of the transferability of the governance tokens of decentralised autonomous organisations (DAOs), a question they consider vital for the expansion of DAO operations. They first assess how property law – including the proposal of the Law Commission of England and Wales for a third category of personal property – might apply to DAO tokens so as to mitigate legal risks and secure their transferability. They then investigate how transfer restrictions can be embedded in DAO software protocols, and conclude by examining the legal enforceability of such restrictions, confronting the tension between the primacy of code and the remedial powers of the law.
Teresa Rodríguez de las Heras Ballell, in “The Emergence of Principles and Best Practices on Digital Assets: Proprietary Rights, and Enforcement,”Footnote 79 turns to the international dimension of these private-law questions. Observing that the growing popularity and economic relevance of digital assets have been accompanied by persistent legal uncertainty, she makes a strong case for international harmonisation and traces the emergence of principles and best practices on proprietary rights, insolvency and enforcement. Particular attention is devoted to the UNIDROIT Principles on Digital Assets and Private Law and to the concept of “control,” presented as the cornerstone of an emerging, globally harmonised private-law regime for digital assets.
In “Legal Structures of Tokenised Assets,”Footnote 80 Xavier Lavayssière offers an analytical framework for categorising the legal structures underlying tokenisation. He proposes a taxonomy based on the legal relationship between the token and its underlying asset, distinguishing complete tokenisation – whether direct, where the token is the primary form of the asset, or indirect, where asset-backed tokens are created through intermediary structures – from incomplete tokenisation, in which tokens operate as mere “digital twins” with limited legal value. His analysis shows that the effectiveness of tokenisation depends on the robustness of this legal bond, with consequences for asset transferability, legal certainty and composability.
Jasper Verstappen’s contribution, “Tokenisation of Absolute Rights and Claims: On the Use of Tokens to Transfer Rights in Property Law,”Footnote 81 asks whether European private-law frameworks on the transfer of rights are compatible with token-based transfers. Using the “token container model” – pioneered in legislation in Liechtenstein and Belarus – as a conceptual framework, he examines the rules on the transfer of rights in movables and immovables and on the assignment of claims. The analysis reveals substantial legal obstacles to the use of tokens to transfer absolute rights or claims, ranging from delivery and form requirements to the retroactive effects of avoidance in causal transfer systems.
With Mikołaj Barczentewicz and André de Gândara Gomes’s “Crypto-Asset Market Abuse Under EU MiCA”Footnote 82, the issue turns to the instruments of the market-ordering era itself. The authors critically analyse MiCA’s provisions on market abuse, applying the new rules to the main categories of market-integrity risks in crypto-asset markets and reading them against the pre-existing Market Abuse Regulation. They find that, by largely replicating that regime, MiCA presents “new wine in old bottles” challenges, and that the extent to which decentralised finance activities will incur liability under its anti-market-abuse provisions remains unclear.
In “AI Agents in Payments: Applications, Risks and Regulations”Footnote 83, David Restrepo Amariles, Damien Charlotin and Liyun He-Guelton examine “agentic payments” – transactions initiated and completed by AI agents without direct human intervention – and analyse the operational logic of agent-enabled payment systems and their emerging use cases across retail, e-commerce and decentralised finance. Identifying a range of technical, legal and societal risks, they argue that current regulatory frameworks, designed for human-intermediated payments, are ill-equipped for agent-led transactions, and propose a multi-layered governance framework to ensure accountability, security and transparency.
The issue closes with Edoardo D. Martino and Wolf-Georg Ringe’s “The Social Cost of Blockchain: Externalities, Allocation of Property Rights, and the Role of the Law,”Footnote 84 which situates the field within a law-and-economics perspective. While acknowledging blockchain’s potential to reduce transaction costs and improve the allocation of property rights, the authors show that the technology generates a variety of new externalities – environmental, operational and legal – which the decentralised actors using it cannot address on their own. The law, they conclude, is the missing piece, and they propose regulatory strategies to mitigate these shortcomings and harness the technology’s full potential – a conclusion that resonates with the trajectory traced in this article.
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