BERMUDA Law and Practice Contributed by: Bourn Collier and Sharon A. Beesley, BeesMont Law Limited
compared to a liquidity services provider who deals only with institutions (with little or no personal informa- tion involved). 1.1.4 Smart Contracts To the extent they are intended to comprise binding contracts (and include the requisite elements of con- tracts under common law – including offer, accept- ance, intention to create legal relations and considera- tion), smart contracts can and will be enforceable as contracts under common law in Bermuda. In addition, the enforceability of smart contracts (including when they comprise a contract under com- mon law) is strengthened by a statutory presumption of effectiveness. Under the Electronic Transactions Act 1999 (ETA), legal recognition is given to electron- ic records (which includes information inscribed on a tangible medium or any other medium and is retriev- able in perceivable form) with a negative presumption that the form of electronic record and records which are referred to in such record “shall not be denied” legal effect, validity admissibility or enforceability sole- ly the ground of the electronic form of such record. The ETA contains a negative presumption in respect of legal proceedings also – such that the electronic form of record (or its status as the best evidence, being not in the original form) shall not be a sole basis nor shall being the best evidence be a basis either, to deny admissibility in evidence in any legal proceedings. Ordinarily however Bermuda DABA licensees need to ensure they adopt best practice in the operation of smart contracts to accord with the technical standards set by the BMA for smart contracts, which include the adoption of secure development practices (in respect of standards, audits and testing environments) as well as benchmarking against specific vulnerability stand- ards, security assessments and reviews of design and implementation risks (as set out in the Operational Cyber Risk Management Code of Practice, Cyber Code). The BMA is evolving its oversight of smart contracts, including observations in a Consultation Paper about Asset Tokenisation published earlier in the year (and discussed below). This includes recognising smart
contract architecture (along with oracles and tokeni- sation platforms) as raising unique prudential chal- lenges and risks, for which the BMA proposes to update supervisory standards and rules. 1.1.5 Industry and Trade Bodies Bermuda hosts a number of professional bodies rep- resenting interests across the financial services sector. Relevant to digital assets is NEXT, the Bermuda Digi- tal Assets Industry Forum, which is an autonomous industry advocacy group for Bermuda-based digital asset companies licensed by the BMA providing a col- lective voice and opportunities for collaboration within Bermuda and globally. Founded in May 2022, at the time of writing it con- sists of 13 companies licensed under the Digital Asset Business Act (DABA) and/or the Innovative Insurance (IIGB) category. As well as being a voice for the indus- try and representing Bermuda’s interests internation- ally, NEXT has been involved in consultations with the BMA on behalf of its membership. In addition, the Bermuda Stablecoin Association (BSA) was formally launched in late 2025 by leading global digital asset firms operating in Bermuda, as a collaborative, industry-led forum to support the adop- tion and institutional standard-setting of stablecoins. The BSA’s early working group tracks focussed on compliance, technical standards, policy engagement and public education. It also participated in a consul- tation by the US Treasury on the implementation of the GENIUS Act (and its impact for foreign stablecoin issuers). 1.2 Crypto-Assets 1.2.1 Property Considerations The proposition that digital assets are property under Bermuda common law was first established by Hargun CJ in In the Matter of BlockFi International Ltd (in provisional liquidation for restructuring purposes) (Bermuda Supreme Court, No 383 of 2022, 9 June 2023, unreported), following the English authority AA v Persons Unknown (2019) EWHC 3556 (Comm), with the holding subsequently referred to and applied by Martin J in In the Matter of BlockFi International Lim-
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