Legal anatomy of the White Paper (using the example of virtual asset circulation)

Abstract

The purpose of this article is to clarify the legal nature of the White Paper and to determine the criteria on which its legal significance depends, using the example of the White Paper on virtual assets, the mandatory conclusion of which is proposed in recent regulatory initiatives. To achieve this goal, the authors used traditional general scientific and special legal methods of scientific knowledge. The choice of specific methods corresponds to the specifics of the subject of analysis: formal-logical is used to generalise the features of the White Paper based on the study of individual types of such documents; the method of analysis and synthesis is used to study the structure and content of the White Paper on virtual assets and the classification of types of White Papers; systemic – to identify the place of White Papers in the system of means of regulating social relations;  formal-legal – to analyse the content of legal norms regarding the White Paper and the content of the White Paper on virtual assets; etc.

The authors note that today, a white paper is perceived as an informational and analytical document that concisely presents information about a complex problem and proposes solutions or recommendations. At the state level, white papers are perceived exclusively as strategic documents that set out the tasks and logic of the government's actions in the relevant area of public policy. White papers help to systematise reforms and increase the transparency of public authorities in Ukraine. White papers are widely used in public practice and are particularly prevalent in the business sector, where they are used as marketing documents that define the parameters and advertise a product or technology.

According to the Law of Ukraine ‘On Lawmaking,’ a white paper is an analytical public policy document developed by government agencies, regulators, or expert groups to prepare draft primary laws and codes; such a document aims to outline a problem, propose conceptual approaches to solving it, and spark public discussion. At the same time, the draft law, which sets out a new version of the Law of Ukraine ‘On Virtual Assets,’ provides for the mandatory conclusion of a White Paper on virtual assets for their public offering, which must contain detailed information about the issuer, the risks and conditions of the issue, and define the legal regime for specific virtual assets.

As a result of studying the problem, the authors identify two categories of White Papers: a) non-regulatory – analytical documents that are important for rule-making and create a basis for consensus between the state, business and citizens; b) regulatory, which serve as the legal foundation for carrying out a certain type of activity; their creation is mandatory in a specific area, so they are a key element of the legal mechanism that ensures the normal functioning of the relevant sector of the economy.