Initial Coin Offerings (ICOs) provide unprecedented liquidity and efficiency for capital formation while minimizing transaction cost. While ICOs have historically allowed primarily crypto start-ups, financial technology start-ups, and the crypto community to raise funds, in 2018, legacy businesses with established businesses and products increasingly used ICO fundraising to finance their business activities.

ICOs display several core beneficial characteristics that help explain their attractiveness for crypto startups and legacy businesses alike. ICOs’ comparative advantage over other means of capital formation consists mainly of their cost-effectiveness that helps offsets the complex and unpredictable economic dynamics in the crypto marketplace. Unlike other means of capital formation, ICO’s allow promoters to avoid sacrificing equity for financing. Instead, ICO promoters can use the proceeds of the ICO exclusively for product development. ICOs provide low barriers to entry for a diverse body of investors and thus increase the diversity and the heterogeneity of start-up funding.

ICOs are creating unparalleled efficiencies for capital formation. First, ICOs enable borderless online sales with much fewer points of friction. ICOs enable the promoters to bypass the typical legal, jurisdictional, and business hurdles by directly marketing to a worldwide pool of investors. Moreover, ICOs are still in 2018 subject to rather limited accreditation standards. While accreditation standards have been instituted by some jurisdictions, including full compliance checklists for ICO registrations, ICOs are overall still subject to rather limited accreditation standards and regulatory formality.

ICOs provide unparalleled liquidity for all of its constituents. First, global cryptocurrency exchanges provide significant continuous access to trading ICO tokens which allows for significant liquidity at the earliest possible time in the lifecycle of the underlying business. ICOs provide liquidity to investors much faster than any other form of capital formation. ICOs also allow venture capital funds to capitalize on existing profits much earlier while avoiding a long, complex, and time-intensive processes leading up to an IPO, acquisition, or similar late-liquidity event in the lifecycle of the business. Finally, promoters can get the earliest possible liquidity of their token reserves simultaneously with the financing for their product launch.

Regulatory concerns

Regulators have been evaluating possible risk factors associated with ICOs since the inception of the ICO market. Regulators are particularly motivated by several ICO risk factors for retail investors. Unlike shareholders in the traditional corporate infrastructure who are able vote for or against directors or to nominate directors, ICO investors have not control over the promoters whatsoever. Token holders typically invest in the future promise of an idea or future infrastructure product associated with the platform they invest in without having access to a tangible underlying product. Capped ICO raises evolved in an attempt by the crypto community to address the uncertainty for investors about the valuation of the underlying platform in cases of uncapped raises. However, capped ICO raises crate significant incentive for investors to attempt to get in first, raising the likelihood of retail investor frenzy.

Moreover, the lack of mandatory disclosures for ICOs leads many promoters to make irregular or no disclosures about the platform as time passes, leading to a significant lack of transparency in the ICO market. Promoters can also change the smart contract to change ICO sales rules mid-course during the ICO.

Unlike traditionally listed businesses that have a long history of business success before being listed on a stock exchange, most crypto platforms cannot generate revenue to offset costs. Crypto platforms typically do not have employees in the traditional sense that create and advertise the platform product. Worse yet, because they have no product and no revenue to offset costs, crypto platforms’ revenue raised is typically required to last for the lifecycle of the platform, requiring crypto platforms to set aside a large number of tokens for future funding needs.

ICO investors have no preemptive rights or other anti-dilution protections. If the promoters decide to issue more reserve tokens to additional investors, the ICO investors may be diluted in the future. The only real control token holders have to protect themselves is to sell their tokens post-ICO. In fact, many venture capital funds that received tokens in exchange for their pre-ICO investments often quickly sell their tokens to protect themselves against devaluation.

ICOs are subject to very high volatility. Unlike any prior financing vehicles, ICOs provide the highest possible liquidity for investors at the earliest possible time in the lifecycle of the issuer. Investors in legacy businesses receive significant assurances pertaining to the business success of the issuing entity because the issuing entity is subject to ongoing disclosure requirements. ICOs on the other hand, give investors very limited assurances through upfront and continuous disclosures, making the token market highly volatile.

Token holders typically do not receive a liquidity preference that would protect them in the case of bankruptcy or termination of the platform they invested in. In cases of bankruptcy, token holders typically have no recourse at all after the debt holders and outside creditors were satisfied with the liquidation value of the entity. By contrast, in a typical venture capital seed stage investment, the venture capital fund should typically obtain at least a simple liquidity preference. This allows venture capital funds to reclaim their initial seed investment before other creditors are satisfied.

United Kingdom

The Financial Conduct Authority is the agency of the U.K. government that regulates financial activity such as ICO’s and cryptocurrency. The FCA has taken the position that ICO’s may be regulated as securities depending on the different aspects and rights the coin holder obtains through holding the coin. They propose a case-by-case analysis to determine whether the ICO falls under the regulatory authority of the FCA. Additionally, they recognize the lack of jurisdiction when the ICO is based overseas.

The FCA has also taken steps to regulate distributed ledger technology (DLT). Although they state that their objective is to regulate the outcome rather than the process, the FCA has acknowledged that DLT has unique aspects that can work around current regulations. As a result of a study, the FCA determined that the current laws are flexible enough to confer DLT businesses.

Russian Federation

The Central Bank of the Russian Federation is the regulatory authority in Russia that is considering ICO and cryptocurrency regulation. At the time of publication, the Central Bank of Russia has indicated that the regulation of this technology is premature. For this reason, the Russian government has declined to put forth any regulations to control ICO’s, cryptocurrency or DLT.

Switzerland

The Swiss Financial Market Supervisory Authority has the power to regulate financial matters within Switzerland. FINMA has said that current ICO activity is covered by money laundering, banking, securities and collective investment laws. FINMA has been supporting blockchain technology and sees its benefits within the financial markets. In an attempt to balance this benefit with investors rights, FINMA will investigate every time there is a reported regulatory breach.

Singapore

The regulatory authority in Singapore is the Monitory Authority of Singapore. In August of 2017, the MAS released guidance on how they plan to approach regulation of digital tokens. In this statement the MAS stated they will regulate tokens if they fall under the Securities and Futures Act (SFA). There is no direct regulation under the SFA unless the currency is linked to an ownership or security interest in the issuers assets or property. If such rights are attached to the currency, the issuer must register with MAS, unless exempted for another reason.
MAS also issued a warning to investors considering investing in these securities. If the securities fall under MAS regulation, there will be a triggering of conduct rules, which concerns fair dealing. If the security falls outside the MAS regulations, there will be no duty of fair dealing.

Lithuania

Lithuania current regulatory body (Bank of Lithuania) takes the position that these financial devices are too risky and discourage investors from investing in them. If a party decides to still launch an ICO or cryptocurrency under Lithuanian jurisdiction, the current laws surrounding securities and money laundering may apply.

The terms for financial institutions stipulates that if a financial institution seeks exposure to cryptocurrencies, they separate the financial services of the cryptocurrency from the other investments. Although this may be difficult for many institutions, there is still a possibility that a financial institution can invest in cryptocurrency if they keep the crypto exposure separate.

Australia

The Australian Securities and Investment Commission is the regulatory body for cryptocurrency in Australia. Australia is trying to determine whether the Corporations Act applies to ICOs and cryptocurrencies. If an ICO/cryptocurrency falls under the Corporations Act, additional disclosures are triggered. For instance, an ICO might trigger a disclosure requirement if the ICO is a managed investment scheme (MIS). A few other possible triggers of the Corporations Act involve, for instance, the ICO being offered as a share of a company, as a directive or as a non-cash payment.

Australia has also implemented what they call the “Innovation Hub” to help fintech companies comply and navigate the regulatory world. Through this program, the ASIC is also able to keep track of what is happening in the market. This allows both parties to eliminate uncertainty that may exist.

Gibraltar

The Gibraltar Financial Service Commission is in charge of regulating cryptocurrency in Gibraltar. Gibraltar has taken notice of the increased use of distributed ledger technology, cryptocurrency and exchanges. Since Jan. 1, 2018, there are new regulations to address DLT, exchanges and cryptocurrency.

GFSC states that “ICOs are an unregulated means of raising finance in a venture or project.” Under certain circumstances, however, tokens can fall under Gibraltar securities law. In order for a currency to be considered a security a token must be an equivalent to shares in a company. Most currencies are not regulated under securities law because the creator takes steps to make sure there is no interest in the project.

Germany

Under the current law, financial regulator BaFin has stated that cryptocurrencies are financial instruments. Additionally, the regulation being applied to the currency is dependent of the rights the cryptocurrency holds. The main difference involves whether ownership rights apply, which will trigger securities law. BaFin has also stated that just because a German citizen is in possession of the currency, German law will not necessarily apply. This deals with a jurisdictional issue where for Germany enforce the law, the coin offeror must be specifically marketing to the German population.

As of the date of publication, BaFin has decided that they will decide on a case-by-case basis whether any of this new technology is in violation of the Banking Act, Investment Code, Payment Service Supervision Act or the Insurance Supervision Act.

Canada

The Canadian Securities Administration is the regulatory authority in Canada. The CSA applies a four-factor test in determining whether cryptocurrencies must be registered as securities. The factor test will consider substance over form when considering:

  1.  Soliciting a broad base of investors, including retail investors;
  2.  Using the internet, including public websites and discussion boards, to reach a large number of potential investors;
  3.  Attending public events, including conferences and meetups, to actively advertise the sale of the coins/tokens; and
  4.  Raising a significant amount of capital from a large number of investors.

The CSA has also developed a regulatory sandbox specifically for fintech companies to stay in compliance. The regulatory sandbox allows a fast track for registration or exemption depending on the circumstances. The thought behind the regulatory sandbox is to allow a flexible process for complying with the current regulations.

Finally, the CSA touches on exchanges and how this relates to regulation. In determining whether an exchange must be registered, they must meet the qualifications for being a marketplace. When an exchange is considered a marketplace or alternative trading system, the exchange is required to register. At the time of publication, there were no registered marketplaces or alternative trading systems (ATS) in Canada.

Israel

Israel has formed a committee to consider the regulation of cryptocurrencies and ICO’s. The committee will lay the groundwork for future regulation. As of now, the overarching tone from the committee has been to embrace blockchain technology and become an “ICO hub.” With this tone from the committee, it is likely that future regulation will be favorable to ICO’s and blockchain technology.

Ukraine

The National Bank of Ukraine has the power to regulate cryptocurrencies in Ukraine. A statement for the Bank of Ukraine lays out the different views other countries have presented, concluding that the Ukraine has not taken a position on the issue yet. Instead, they are going to discuss the issue at the next financial stability board meeting, which will be held in August of 2018. At the present time, Ukraine is not saying anything as to how they are going to treat this technology.

France

France’s regulatory authority on the matter of cryptocurrency is the AMF. The AMF has taken the position that they are still not sure what this technology is or how to regulate it. For this reason, France has implemented a new program called the Universal Node to ICO Research & Network (UNICORN). Through this program, France will explore the scope of regulation to be implemented. As of now, the three ways of regulating they are considering are: (1) promoting best practices with existing legislation (2) extend the scope of existing text to include ICOs as securities and (3) propose ad hoc legislation adapted to ICOs.

Spain

There is currently no information on the regulation of ICO’s or cryptocurrency beyond gambling laws.

Poland

In a joint statement by the Polish National Bank and Financial Supervision Commission, the regulatory authorities said cryptocurrencies are not considered legal tender. As a result of this lack of legal tender, the government issued warnings about investing. The government makes a clear distinction between investing in DLT and virtual currencies. The government says that DLT’s may be subject to other laws that do not apply to virtual currencies. The statement does not explicitly prohibit financial institutions from participating in the crypto market but advised these institutions not to invest.

The KNF issued an additional statement concerning ICO’s specifically. The statement laid out what an ICO was and the risks associated with investing. Depending on the way the currency is structured, there can be a lack of legal protections if the currency does not fall under the regulations financial markets have to follow.

Lichtenstein

Until recently, Lichtenstein had been relatively silent with regards to taking a stance of whether securities law applied to ICO’s and cryptocurrencies. In September of 2017, the Financial Market Authority came out with a fact sheet concerning ICO’s and cryptocurrency. In the legality section, the government states that the applicability of securities and financial instrument law will depend on the rights attached to the token. If corporations have questions concerning ICO’s, Lichtenstein has established a fast track fintech department to address these issues.

In Dec. 2017 the Financial Market Authority issued the non-profit organization CBN a no action letter. It is important to note that CBN’s ICO currency did not come with any right to assets or property. This could be seen as an indicator of the government’s position on companies engaging in ICO/cryptocurrency activity.

China

The People Republic of China have taken a firm stance against ICO’s, banning them entirely. This also applies to the offering of coins and the exchanges used to trade the coins. China believes that ICO’s hurt the market because of potential deception and fraud. The PRC recognizes that this has been going on in their country and as a result, issuers of these currencies must take steps to protect investors rights under the current laws.

Luxembourg

The Commission de Servellance du Secteur Financier is the regulatory authority tasked with the regulation of cryptocurrency. The CSSF has not issued any regulations but relied on statements from the IOSCO and ESMA.

Costa Rica

There is currently no information on where the government stands on the regulation of ICO’s, cryptocurrency or blockchain technology.

Argentina

There is currently no formal statement by the government, but the futures market of Mercado de Termino de Rosario is considering the application bitcoin.
Serbia

The National Bank of Serbia is the regulatory authority over ICO’s in Serbia. Serbia has taken the position that financial institutional are not allowed to participate in ICO’s or other cryptocurrency investments because they are not legal tender. For individuals, the government warns against investment because of security issues.

In addition to the disallowance of cryptocurrency as legal tender, in 2016 the National Bank of Serbia stipulated that they would be considering regulation on the treatment of cryptocurrencies. At the time of publication, no new regulation from the Serbian authorities existed.

Slovakia

Slovakia’s regulatory body that deals with financial matters is the National Bank of Slovakia. The national bank takes the view that cryptocurrencies are not considered money because countries enjoy monetary sovereignty. This makes it difficult to regulate because cryptocurrencies as they cannot fall under the monetary policy of the country. It also means that cryptocurrencies do not fall under the definition of electronic money because there is no monetary value.

The National Bank of Slovakia has also stated “bitcoiny nemajú ani povahu finančné ho nástroja” which translates to “bitcoin does not have the nature of a financial instrument.” Therefore , cryptocurrency does not fall under securities and financial instrument law.

Slovenia

Slovenia’s regulatory body for ICO transactions is the Bank of Slovenia. Slovenia issued a warning to investors about the dangers of ICO and cryptocurrency investment but have since declined to take a position on regulation. Currently, there are no regulations or position taken by the government beyond the formal warning.

There is hope that when the government finally takes a stance on the treatment of ICO and cryptocurrency regulation it will be to foster innovation rather than restrict. In a statement, the prime minister said that the country is currently studying the technology in the hope of turning Slovenia into the blockchain hub of the European Union. One of the ways in which the government is attempting to accomplish this is through a Blockchain Think Tank, which allows companies a point of contact on compliance and development issues.

Myanmar

Myanmar officials have not taken a position on blockchain technology.

Sweden

The Swedish regulatory authority Finansinspektionen (FI) controls the regulation around ICO’s and cryptocurrency. The FI has taken the stance that ICO’s are investment products that may be traded. Although there is no explicit ban on financial companies raising money through ICO’s, no Swedish company has attempted to do so yet. Along with this notice, Sweden has also issued a warning about the risks associated with cryptocurrencies and the ICO market. Along with this general warning, FI cites the ESMA publications that reference, depending on the cryptocurrency structure, a possible triggering of securities law as well as other consequences.

Conclusion

The majority of the countries examined in this study permit ICO’s and cryptocurrencies or do not explicitly prohibit them. Of the entirety of countries considered, only a very small minority has banned ICO’s and cryptocurrencies altogether. For the most part, the general view of the world governments appears to be that they are using existing laws to regulate cryptocurrencies or wait to see how other countries react to the crypto evolution. Regulatory efforts can take several forms but appear to involve some of the following approaches or permutations thereof: regulating ICOs, regulating cryptocurrencies, regulating DLT, mandating compliance programs, regulating exchanges, securities regulation, prohibition of exposed financial institutions, government suggestions to consumers not to participate.

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Wulf A. Kaal

Wulf Kaal is a tenured associate professor of law at the University of St. Thomas School of Law in downtown Minneapolis. He is a leading expert on hedge fund regulation in the United States and the European Union.  Before entering the academy, Kaal worked for Cravath, Swaine & Moore LLP in New York and Goldman Sachs in London.  Kaal has published more than two dozen articles in the United States and Europe. His articles were published in leading peer reviewed law and finance journals and in American law reviews such as the Minnesota Law Review, the Washington & Lee Law Review, and the Wake Forest Law Review, among others.  Kaal’s study on the effects of hedge fund registration requirements under Title IV of the Dodd-Frank Act has gained national attention and was covered in a Business Week article and other journals. He is the author of a book chapter on Investment Advisers and Investment Companies in the Securities Law Handbook published by Edward Elgar.
He has also been a consultant to major corporations and hedge funds regarding various aspects of financial markets and regulation.

 Wulf A. Kaal
Associate Professor
University of St. Thomas School of Law
1000 LaSalle Avenue
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Minneapolis, MN 55403
United States
 

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