FCA on regulation of ICOs

Yesterday, the UK’s Financial Conduct Authority (FCA) issued a consumer warning about the risks of Initial Coin Offerings, in which it also briefly touched upon the regulatory treatment of ICOs. Some highlights are discussed below.

Risks

Although stating the obvious, the FCA’s description of the risks of ICOs is a good reminder of why one should not tender one’s life savings in yet another $200M+ token sale:

  • Unregulated space: Most ICOs are not regulated by the FCA and many are based overseas.
  • No investor protection: You are extremely unlikely to have access to UK regulatory protections like the Financial Services Compensation Scheme or the Financial Ombudsman Service.
  • Price volatility: Like cryptocurrencies in general, the value of a token may be extremely volatile – vulnerable to dramatic changes.
  • Potential for fraud: Some issuers might not have the intention to use the funds raised in the way set out when the project was marketed.
  • Inadequate documentationInstead of a regulated prospectus, ICOs usually only provide a ‘white paper’. An ICO white paper might be unbalanced, incomplete or misleading. A sophisticated technical understanding is needed to fully understand the tokens’ characteristics and risks.
  • Early stage projectsTypically ICO projects are in a very early stage of development and their business models are experimental. There is a good chance of losing your whole stake.

The FCA goes on to say that “a digital token issued may represent a share in a firm, a prepayment voucher for future services or in some cases offer no discernible value at all.” (emphasis added)

Regulation

On the question whether ICOs are regulated by the FCA, the FCA makes three caveats:

  1. Some ICOs may involve regulated investments.
  2. Firms involved in an ICO may be conducting regulated activities.
  3. ICOs may fall within the ambit of the prospectus regime.

In the FCA’s words:

Some ICOs feature parallels with Initial Public Offerings (IPOs), private placement of securities, crowdfunding or even collective investment schemes. Some tokens may also constitute transferable securities and therefore may fall within the prospectus regime.

Businesses involved in an ICO should carefully consider if their activities could mean they are arranging, dealing or advising on regulated financial investments. Each promoter needs to consider whether their activities amount to regulated activities under the relevant law. In addition, digital currency exchanges that facilitate the exchange of certain tokens should consider if they need to be authorised by the FCA to be able to deliver their services.

Yours truly is not an English lawyer, so I gladly leave the analysis of what these caveats mean to my English colleagues. One of such English colleagues is Preston Byrne.  In his blog post, Byrne points out that “the key here is that the definition of what a security is, for the purposes of issuing prospectuses is defined in statute, is highly prescriptive, and at least on my reading does not create a broad, flexible, common law-style definition of what a “security” is like the Howey Test does in the US.

As a reminder, the US Securities and Exchange Commission (SEC) recently unleashed the Howey Test on the ICO of The DAO in its Report of Investigation on The DAO.

Although continental token sellers may for the time being find textual arguments in the existing regulatory framework to argue that they are not conducting regulated activities and are not subject to the requirement to draw up a prospectus (that is, until that framework changes to include ICOs…), it will be interesting to see how a US-style functional approach may influence EU financial regulators in assessing token sales. It also remains to be seen to what extent the set-up of the platform and in particular the utility value of the token in question might prevent the token seller from running afoul of securities legislation.

EU looking at blockchain to promote transparency in capital markets

The European Commission is working on the development of a DLT-based “European Financial Transparency Gateway”, said Commissioner Valdis Dombrovskis, in charge of Financial Stability, Financial Services and Capital Markets Union, in response to a question asked in the European Parliament earlier this week. The project aims to connect and make available data which listed companies must report to national databases.

Interesting to see how the same technology was once used by anarchists to hide from government and will soon be used by a supranational organisation in regulating its capital markets. A bitcoin clearly has two sides…

Trusted timestamping of schedules to a contract

In many European jurisdictions, it is common for landlords and tenants to inspect the property prior to the start of the tenancy in order to document the condition of the leased premises. This way, arguments at the end of the tenancy over whether or not any damage to the property was caused by the tenant can be avoided. Such pre-tenancy inspection is often supported by photographs of the leased premises, certainly so if the report of the pre-tenancy inspection is drawn up by a real estate expert. A paper copy of the report would then be attached to the tenancy agreement as a schedule.

In such cases, i.e., where digital documents are attached to a contract as a schedule, it would make sense to attach them to the contract in digital form, rather than in paper form. This way, loss of quality can be avoided, and the schedule will be easier to verify in case a dispute would arise. If, for instance, there would be a crack in one of the walls of the leased premises, digital photographs (which can be enlarged) will offer greater verifiability than paper copies of the photographs in determining whether or not such crack was there prior to the start of the tenancy.

If the photographs are attached to the contract in digital form, on a USB stick for instance, it is of course essential that they cannot be tampered with (e.g., ‘photoshopped’). Although such tampering would cause the landlord’s version and the tenant’s version of the photographs to differ from one another, it cannot reliably be determined which party has engaged in the tampering.

A convenient and secure solution to this problem would be to time-stamp the photographs using a blockchain. Many online service-providers offer trusted time-stamping services, either for a subscription fee, a one-time fee, or free of charge. One free variant with a user-friendly interface is OriginStamp. This website works as follows. First, OriginStamp hashes your file using the cryptographic hash function SHA256. The hash is immediately published on twitter. Next, it collects the hashes of all files received from all users over the course of a day and hashes these hashes together using SHA256 to form one single hash. The latter hash is then used to generate a Bitcoin address. Finally, once a day, the smallest possible amount of Bitcoin is sent to the Bitcoin address so generated. This way of working enables secure and reliable verification that an exact version of a particular file was submitted on a particular time and date. Any amendments to the file, however small, will be immediately detected, as the amended file will generate a hash that is different from the hash of the original document.

Turning back to our tenancy hypothesis, the landlord and the tenant could compress the photographs taken during the pre-tenancy inspection into a .zip-file and submit the .zip-file to OriginStamp.  The resulting hash could then be included in the execution version of the tenancy agreement. After execution of the contract, each of the parties receives a copy of the agreement, which includes the hash of the photographs taken, and a USB stick containing the photographs. If a dispute would arise afterwards, and one of the photographs serves to support a claim, it can be easily demonstrated that such photograph is the original and unaltered photograph.

Delaware paves the way for blockchain stock ledger

On 30 June 2017, the Delaware House of Representatives approved a bill amending the Delaware General Corporation Law to provide specific statutory authority for Delaware corporations to use a blockchain for the creation and maintenance of corporate records, including the corporation’s stock ledger.

Links: Synopsis | Bill

Sweden enters second phase of its blockchain land registry project

Sweden is studying the possibilities of using blockchains as a technical solution for real estate transactions. Kairos Future, one of the parties working on the project, has prepared an interesting report, which provides insight in the thought process and the choices made.

Links: Full report | CoinDesk article

Financial Stability Board takes a closer look at DLT

In its report dated 27 June 2017, the Financial Stability Board (FSB) assesses possible financial stability implications from FinTech.  While emphasizing the benefits Distributed Ledger Technology can have for the financial system, the FSB identifies cross-jurisdictional compatibility of national legal frameworks and data privacy as some of the concerns that merit regulators’ attention.

Links: Full report | Executive summary