Siting Intangibles

Abstract

Debts, shares of stock, intellectual property, wire transfers, LLC interests, and all other intangible assets have no physical location. The current law of jurisdiction imposes the legal fiction that intangible assets have a particular location or ‘situs.’ Courts have uniformly addressed the question of where intangible assets can be seized and applied to a judgment by attempting to imagine a situs for assets that have none. This process has produced a fog of conflicting and arbitrary rules that has clouded enforcement of judgments. This paper is the first attempt to systematically update the law’s power over intangible assets for an era that will increasingly be dominated by them.

The failure of this legal fiction demonstrates that power over intangible assets should be determined, not by imagining a physical situs where none exists, but by consideration of the conflict of laws principles that underlie judgment enforcement. This analysis comes down to two questions: (1) Does the court have power over the parties necessary to transfer the asset; and (2) Will doing so violate foreign law such that a court should stay its hand? As the answer to the second question will nearly always be no, a simple rule can be stated: Where the court has power over the party in control of an intangible asset, it should exercise its power over the asset to enforce a judgment.

Keywords: judgments, arbitration, arbitration awards, enforcement, conflict of laws, international litigation, international business transactions, international commercial law, international arbitration, civil procedure