This is the second in the series of articles, prepared by Descrow team, which observes the particularities of ICO regulation in different countries, in order to bring light to the latest news and legal trends of the chaotic market of tokensales. The first chapter looked closer at Asian market, the second one focuses on the legal approach of Middle East countries, America and the foggy costs of Albion.
Chairman of Israel Securities Authority (ISA), Shmuel Hauser, in December, has shown a very positive attitude towards ICO as a promising crowdfunding mechanism. Current ICO applause is indeed surprising as previously Hauser shared a skeptical view on Bitcoin, saying that it “looks like a bubble, it smells like a bubble, behaves like a bubble and feels like a bubble”. On the contrary, his latest statements on ICO were quite welcoming. According to his speech, the initial coin offering topic should receive a welcoming legal and regulatory response to give Israel a chance to develop international ICO Hub and become the international financial center.
Contrary to countries that decided to outlaw ICO, Israel intends to carefully examine the field to find out the conditions that can make the crowdfunding mechanism safe. The Authority has dedicated resources to form a commission that will present results publicly in a form of an official report.
“We’ll have to consider extending supervision to currency securities and defining an appropriate regulatory framework different from the one we know for securities offerings”, — commented the ISA Chairman.
Generally speaking, at the moment the Israeli government takes a neutral stance on the ICOs and constructive approach towards the industry problems, standing for including ICO in the legal framework and creating mechanisms for investor protection.
In the middle of September Dubai Financial Services Authority has issued a warning on initial coin offering risks without mentioning any plans to regulate token sales. Without directly banning the ICOs, the financial regulator highlighted, that “these offerings should be regarded as high-risk investments”.
According to DFSA, the riskiest are the offerings, which are made “on a cross-border basis” as they might have “their own unique risks, which may not be easy to identify or understand”.
Contrary to Dubai, the regulator in the Emirate of Abu-Dhabi, Financial Services Regulatory Authority (FSDA), is planning to strictly regulate cryptocurrencies and ICOs. According to Abu Dhabi regulator, virtual currencies are “commodities” and the majority of ICOs will be regulated as “specified investments”.
ICO is seen by a regulator as a mechanism, where investors “typically give virtual currencies to an ICO issuer in exchange for a proprietary digital medium of exchange, based on the DLT platform, which is called a ‘coin’ or ‘token’”. The regulator highlights that tokens differ in its nature and in some cases they do not “represent underlying financial asset” but can be “a digital identity record, a voting right, or simply access to software”. Tokens that will be classified as “specified investments” (securities, shares, and bonds) fall under the FSMR regulation. The FSRA will determine whether a given ICO is subject to regulation on a case-by-case basis.
In July 2017 the U.S. Securities and Exchange Commission (SEC) issued its stance on ICO: tokens can be defined as securities on the same basis as shares entering the traditional exchange. This statement has served as an etalon for other regulators, who shared their views shortly after the SEC announcement.
The SEC decision came as a result of the investigation on the decentralized fund DAO epic security breach, which had catastrophic consequences in June 2016: it caused the split of the second largest cryptocurrency network Ethereum. SEC has revealed that issued during its ICO tokens were nothing else but shares and therefore, were subject to regulations.
At the end of November SEC ex-employee, Joseph Grundfest in the interview to the New York Times declared that ICOs should be banned as soon as possible, due to the violation of all possible legal norms. In his opinion, the violation of the law via the ICO mechanism is so widely and openly in place, that it all seems “the almost comedic quality”.
“ICOs represent the most pervasive, open and notorious violation of federal securities laws since the Code of Hammurabi,” — Grundfest said in an interview.
Despite the SEC statements, most of startups do not even try to comply with the law.
One way or another, SEC has actually started to implement measures of ICO crime suppression. The Cyber Unit, established for this purpose in September, “focus the Enforcement Division’s substantial cyber-related expertise on targeting cyber-related misconduct, such as violations involving distributed ledger technology and initial coin offerings, market manipulation schemes involving false information spread through electronic and social media, cyber-related threats to trading platforms…”.
The Cyber Unit wasted no time and already brought two enforcement actions related to ICOs, PlexCorps, and Munchee, that, according to SEC, did not comply with the law. Additionally, SEC has issued trading suspensions of public companies that had promoted plans for future ICOs, such as First Bitcoin Capital Corp., CIAO Group, Strategic Global и Sunshine Capital.
Following the US SEC statement, the Canadian Securities Administrators (CSA) has confirmed, that securities law may apply to ICOs, emphasizing that the digital nature of tokens does not determine whether or not a particular token is a security. According to the statement, the Howey test answers that question.
In the middle of October, the Ontario Securities Commission (OSC) released a statement that it is “keen to support” cryptocurrencies and initial coin offerings. The OSC invites to take advantage of their consulting services that help ICO launching startups to comply with security law. Also, the OSC has established a dedicated OSC Launchpad team “to respond quickly to cryptocurrency offerings”.
OSC, being one of the largest financial regulatory agencies in Canada, has the Toronto Stock Exchange within its jurisdiction and administers the Ontario Securities Act and the Commodity Futures Act. The Commission in its statement shared that they intended to be flexible in their approach towards the ICO as an innovative financial mechanism “to find the right balance for those vested in this space”.
On the OSC web page, it is clarified that cryptocurrency offerings, such as ICOs, ITOs, and sales of securities of cryptocurrency investment funds “can provide new opportunities for business to raise capital and for investors to access a broader range of investments”.
Recently, in the middle of December, the Bank of Mexico, Mexico’s central bank, has issued Warning on cryptocurrencies and ICO, where cryptocurrencies were named “risky investments” and ICOs “could potentially violate Mexican financial law”. The approach is fully supported by Mexico’s banking and securities regulator (CNBV). According to CNBV statement, cryptocurrencies “are not officially recognized in Mexico as a legal form of payment…Some ICOs that originate and are emitted in Mexico could violate the Markets and Securities Law and constitute a financial crime”.
However, the Mexican regulator statement includes no direct ban on ICOs. Moreover, it lacks specific regulatory guidelines and fines. Therefore, on the one hand, it gives Mexico’s Central Bank broad authority to regulate operating companies, inspecting and issuing suspensions. On the other hand, it leaves startups enough space for maneuver. Interestingly enough, in its statement, the regulator also claims that the upcoming bill “will drive innovation and competition by establishing a clear operational framework”.
The Isle of Man
In a week after the Chinese regulators’ decision to outlaw ICOs, the official representative of the Isle of Man, Brian Donegan, released the island stance on this method of crowdfunding. The representative has shown an enthusiasm to develop the regulatory framework under the island jurisdiction, for which, as he added, a certain time for clarification and procedures establishment is needed. Under its jurisdiction in 2014-2015, the regulatory frameworks have been developed that allow launching ICOs in compliance with anti-money laundering (AML) and know-your-customer (KYC) regulations.
Mann, being a self-governing British crown dependency, which is not part of the United Kingdom or the European Union, is an offshore territory. Tokens, which are welcomed by its regulators, will have a legal status under its jurisdiction. The Isle of Man has become one of the first countries to develop a regulatory apparatus for cryptocurrencies designed to promote ICO. The island government counts on becoming the trial zone for the ICO “massive vertical market”.
The United Kingdom
At about the same time the British regulator, the Financial Conduct Authority (FCA), has ringed an alarm bell around the fact that initial coin offerings (ICO) resemble the same characteristics as initial public offerings (IPO), as well as private placements of securities and crowdsales. The FCA has warned that the authority plans to “conduct a deeper examination” and will assess if it needs to take “further regulatory action”. Also, the regulator warns investors to be conscious of the risks involved and that some of the purchased tokens might fall under regulations and has to be registered.
That being said, the FCA acknowledges that cryptocurrencies bring new opportunities for startups, as the innovative investment schema, and for investors – as an access to a broader range of investment tools. By one means or another, the startups that are planning to raise fund via ICO should be extremely careful while using the collected funds, as the careful attitude towards such questions mean, in particular, care for the investors, as the token price, and consequently investment returns, depend on the success of the project.
The materials are prepared by the Pr-department of Descrow project, a first in the world platform for secure ICO investments. For more detail, you can check the project’s website.