Regulation of blockchain business – a jurisdiction comparison

Blockchain Business Global
Although the sector is growing rapidly, blockchain-related businesses are still largely unregulated in most countries. Sadly, in some circles, the use of cryptocurrency is still perceived as a mechanism or tool to facilitate criminal activity. Traditional businesses are therefore extremely apprehensive and often unwilling to provide services to persons involved in cryptocurrencies. As a result, in order to prove their credibility, many blockchain-related businesses are seeking regulation.

You may have read numerous articles comparing the various crypto-friendly countries and noticed the same names keep cropping up. The purpose of this article, therefore, is to explore the positions that different jurisdictions are taking, providing an overview of the top jurisdictions you should consider when deciding where to incorporate your blockchain business.

Much of the world is still generally unreceptive when it comes to cryptocurrencies and blockchain companies. The approach by some jurisdictions to Initial Coin Offerings (ICOs) or Token Sales, is particularly hostile. Therefore, when considering which jurisdiction works best for you and your business, one of your top priorities should be to find a jurisdiction that can provide some certainty in an uncertain environment.

Below is a list of some the more popular jurisdictions currently attracting the most attention from blockchain businesses, detailing their regulatory environments and other key factors:

USA

Not only do many prominent crypto exchanges operate from within the United States, the U.S. is easily one of the most advanced countries in terms of cryptocurrency adoption with many stores readily accepting cryptocurrencies. The U.S. also boasts more cryptocurrency ATMs than anywhere else in the world.

Plus, the U.S. is one of the most regulated countries for cryptocurrency-related businesses. The complexity of the U.S. regulation is a result of the existing two-level system of governance: at both federal and state levels.

One of the U.S. federal financial regulators and the Financial Intelligence Unit – FinCEN – addressed the status of cryptocurrencies under the U.S. Bank Secrecy Act (BSA) and its implementing regulations in 2013, stating it would be no difference between real currencies and crypto (virtual) currencies while determining a business is a regulated money services business (MSB).

Since then, a number of obligations are imposed on cryptocurrency-related businesses as MSBs. In particular, the obligation to register with FinCEN; to designate a compliance officer; to develop and implement internal policies, procedures, and controls; to perform ongoing employee AML training, and to perform independent BSA/AML audit.

Apart from FinCEN, other regulators focus on issues raised by cryptocurrency, too. Approaches to virtual currency differ from agency-to-agency. For example, the U.S. Internal Revenue Service defines cryptocurrency as property for tax purposes. The U.S. Commodity Futures Trading Commission (CFTC) states that cryptocurrencies are commodities and subject to the CFTC’s jurisdiction.

The position in the U.S. regarding ICOs or Token Sales is extremely uncertain. There is no comprehensive guidance from the Securities and Exchange Commission (SEC) although they have made several statements over the last twelve months or so regarding the activity of raising funds via an ICO or Token Sale. Whilst they take the view that certain cryptocurrencies, such as Bitcoin, for example, should not be deemed ‘securities’ they have indicated that most tokens sold by issuers as part of an ICO or Token Sale process would be deemed ‘securities’. The SEC do not focus on the characteristics or utility of the token but instead on the reasons why participants are purchasing such tokens and whether or not participants could reasonably expect the value of the tokens to increase in value.  Numerous subpoenas have been issued and there is an ongoing investigation into many ICOs with connections to the US.

On the lower level, each state either develops specific rules for cryptocurrency-related businesses (BitLicense in New York), applies existing money transmitters’ rules for cryptocurrency exchanges (Florida), or provides an exemption from such rules (Tennessee). Besides, some states are still evaluating the sphere and currently take no position (Utah).

Mexico

Mexico is currently exploring the regulation of cryptocurrency exchanges. There are a number of exchanges already operating from Mexico and, in March of this year, a bill to regulate cryptocurrencies was approved.

It is understood that the National Banking and Securities Commission, the central bank and the finance ministry will soon begin drafting secondary laws which will determine the details for companies in the sector and it is further understood that the main focus of the new regulation will be on companies having strong KYC and AML procedures in place. So, legislation to regulate exchanges has been passed but has not yet been implemented.

The Mexican Government has said that cryptocurrency is not illegal and that they will allow self-regulated exchanges to operate while laws are being implemented. As far as ICOs or Token Sales are concerned, however, whilst they have warned consumers to avoid such high-risk investments, they have not expressed an interest to regulate them.

Australia

The regulatory landscape in Australia was somewhat unclear for a few years. Then, earlier this year, new laws for digital currency exchange providers operating in Australia were implemented by Australia’s financial intelligence agency and the anti-money laundering and counter-terrorism financing regulator (AUSTRAC). Much like the proposed Mexican regime outlined above, the main focus is on KYC and AML.

Digital currency exchange providers must now register with AUSTRAC and fulfil appropriate obligations under Australian AML/CTF regulations. Such obligations imply establishment and maintenance of an AML/CTF program; the existence of customer verification and identification procedures; record keeping and reporting of suspicious activity; etc.

Digital currency exchange providers must also meet the so-called “geographical link test” criteria since Australian AML/CTF regulations are only relevant to digital currency exchange providers with a connection with Australia. This means the Australian AML/CTF regime covers digital currency exchange providers who are Australian residents (or its subsidiary) or any foreign digital currency exchange providers with a physical presence (operational office) in Australia.

Cayman Islands

This jurisdiction is very popular with traditional hedge funds so it is no surprise that many investors wanting to set up cryptocurrency investment funds are also doing so in the Cayman Islands. The Caymans have also had success on the ICO front, making it an attractive proposition.

There is no specific regulation relating to cryptocurrency exchanges or ICOs in Cayman, however, nor are there any guidance notes issued by the government or regulator. Cryptocurrency exchanges in Cayman, for example, operate under the island’s FX brokerage license, which arguably is not fit for purpose.

Though it is understood that the government and the regulator are currently undergoing a consultation process with the private sector to ensure that, if they do go down the regulatory route, their regulation is appropriate and effective.

The current regulatory position, as far as ICOs are concerned, seems to be that, if the activity of raising funds through the sale of tokens falls outside the existing regulatory landscape in Cayman, then there should be no concern from a legal or regulatory standpoint.

Japan

In recent years Japan has established itself as a cryptocurrency friendly nation. In the wake of the hacking of Japanese cryptocurrency exchange Coincheck in January 2018, which resulted in the theft of more than $500 million worth of cryptocurrency, the Financial Services Agency in Japan (FSA) has been working hard on tightening their relevant regulations.

A new five-point agenda has been introduced by the FSA focusing on (1) strict and robust security standards; (2) KYC/AML – stringent customer ID protocols must be implemented when dealing with large value crypto transfers; (3) management of customer assets must be separate from the company’s assets; (4) prohibition of privacy coins such as Monero and ZCash; and (5) Corporate Governance – there must be a clear separation between the ownership and management of the business.

Nobody may provide services within the cryptocurrency industry without first being registered as a crypto (virtual) currency exchange service provider in Japan.

These regulations will apply to anyone running an exchange from Japan but the regulations also imply that cryptocurrency exchanges being operated from outside of Japan will be prohibited from providing services to Japanese residents if such exchanges are not registered with the FSA.

Singapore

Singapore is keen to present itself as a jurisdiction where the future of cryptocurrencies is stable and secure. Cryptocurrency trading and payments are legal in Singapore but there is no current regulatory framework for this type of business activity.

In what could be seen as a first step to regulation, Singapore has imposed Anti Money Laundering and Counter-Terrorism Financing (AML/CFT) guidelines on cryptocurrency exchanges. Also, Singapore has emerged as a hub for ICOs, thanks to its convenient taxation rules and supportive government stance towards FinTech.

The city-state’s central bank and financial regulator, the Monetary Authority of Singapore, issued a set of guidelines for token sales in November 2017, noting that the regulator “does not regulate cryptocurrencies; in fact, we welcome them as an innovation that can potentially reduce the cost of financial transactions. But we regulate the activities that surround cryptocurrencies if these activities pose specific risks.”

Earlier this year, however, news emerged of plans for additional regulations to protect the interests of investors. This was the first such indication that Singapore was planning any regulations specific to cryptocurrencies. It is understood, however, that the country is currently considering whether a more robust regulatory framework is required to give more adequate protection to consumers. This is the correct approach and is, in fact, one which is shared by all the top-tier crypto jurisdictions.

Luxembourg

Luxembourg has been the home of Bitstamp since 2016. Luxembourg granted Bitstamp a payment institution licence which, at the time, made the company one of the first licensed Bitcoin exchanges in the world.

Cryptocurrency Exchanges in Luxembourg are governed by the Commission de Surveillance du Secteur Financier (CSSF) and are deemed electronic money institutions. Essentially this means that cryptocurrency exchanges that want to set up in Luxembourg must comply with Luxembourg’s e-money regulations and applicable AML/CFT laws.

Some have criticised this approach, arguing that e-money regulations are not entirely appropriate to cryptocurrency exchanges and that cryptocurrency or blockchain specific regulation would be more suitable. However, with Bitstamp moving to Luxembourg back in 2016, the jurisdiction cemented its place as a top crypto nation within the European Union. Since then, a number of high profile exchanges, such as BitFlyer, have also moved to Luxembourg.

Switzerland

Zug, in Switzerland, commonly known as Crypto Valley, is another popular cryptocurrency jurisdiction in Europe. If you have strong financial resources Switzerland may be a good choice for you – provided you don’t mind paying around 12 – 18% in corporate tax.

Switzerland certainly has a business-friendly attitude and was one of the top jurisdictions of choice for companies conducting ICOs in 2017. Statistics produced by PWC earlier this year show that four of the ten biggest ICOs in 2017 were incorporated in Switzerland.

As a general rule, all companies in Switzerland performing financial services activities are required to receive an authorization for their operations from the Swiss Financial Market Supervisory Authority (FINMA), who consider their regulatory approach as ‘nimble’.

Cryptocurrency exchanges are not currently required to register with FINMA, however, because generally they fall outside the existing regulatory scope and there is currently no cryptocurrency or blockchain specific regulation available in the jurisdiction.

Switzerland published its guidance notes for ICOs in February and is also looking to introduce a special FinTech licence. It should be noted, however, that, despite the fact that FINMA is receptive to cryptocurrencies, the Swiss National Bank is sceptical and has warned of the risks associated with cryptocurrencies. Executives from other banks in the jurisdiction have echoed those sentiments and therefore cryptocurrency businesses looking to open a corporate bank account often face difficulties.

Estonia

Estonia is one of the cheaper jurisdictions to establish a cryptocurrency or blockchain business. It also offers free wireless internet in most places, as well as low taxes and a progressive, business-friendly environment, making it an attractive candidate for crypto start-ups.

In order to operate in Estonia, cryptocurrency exchanges and cryptocurrency wallet service providers are required to obtain an authorization with the Financial Intelligence Unit (FIU), which is an independent structural unit of the Estonian Police and Border Guard Board.

The operating authorizations for exchanges and wallet services are separate and must be applied for independently. To obtain such authorization an applicant must pay a state fee, provide documents regarding internal rules, procedures and controls, designate a compliance officer and perform additional AML checks daily.

Cryptocurrency exchanges and cryptocurrency wallet service providers will have no special reporting requirements to tax authorities. Accounting must be done like for any other company but no special reporting to the regulator is needed. The FIU, however, will always be able to make precepts and inquiries about the company’s activities.

It also should be emphasized that Estonian authorization with the FIU is not a license per se, since it does not cover any other aspects (except AML concerns) that you would expect to see within a regulatory framework, such as regulatory capital requirements, fit and proper test of individuals in key roles, cybersecurity (which is crucial for crypto businesses), safeguarding of funds, etc. This makes companies which hold such authorization less attractive for onboarding by conventional financial institutions (which, in return, are subject to comprehensive regulations and full licensing).

Another problem with Estonia appears to be the lack of banking solutions. If the business is to be operated from outside of Estonia, and most of the owners are foreigners, getting a bank account in Estonia could well prove difficult, if not impossible, which is not ideal.

Malta

Malta’s government launched the Malta Digital Innovation Authority in February 2018 in order to provide legal clarity for companies developing blockchain technologies, cryptocurrencies, and ICOs. More recently, Malta made headlines when it announced that the Cabinet of Malta had approved the Virtual Financial Assets Bill, providing a regulatory framework for cryptocurrencies and ICOs.

Although the bill has yet to be debated by both sides of the House before it is passed into law, Binance, the largest cryptocurrency exchange by volume, has recently announced that it is planning to set up part of its operations in Malta. The regulatory framework, however, is not yet in place and it is uncertain how long it will take before companies can apply for a license.

Banking has also been a problem for blockchain based businesses in Malta, but it is expected that banks will be less reluctant to provide services to such businesses once the relevant regulatory framework is up and running.

Belarus

In December 2017, the President of Belarus signed a ‘Digital Economy Development Ordinance’, which came into force on 28 March 2018. The aim was to attract blockchain businesses to the jurisdiction and develop the nation’s technologies sector. This new legislation is said to provide friendly conditions and simple regulations for start-up companies which are based in their Hi-Tech Park (HTP), a special economic zone with a special tax and legal regime. Resident companies of the HTP will not be restricted in the issuing, storage and/or trade of digital tokens.

Also, it is understood that no taxes will be imposed on companies that profit from mining, issuing and placement of digital coins. Likewise, individuals who are mining or trading cryptocurrencies will not incur any taxes in Belarus.

According to the Government of Belarus, the new legislation focuses on the prevention of legitimising illicit income, terrorism financing and the propagation of weapons of mass destruction. Officials have also added that the regulations intend to improve cybersecurity.

However, these steps do not mean that cryptocurrency is accepted as legal tender in Belarus. Regulations are imposed on HTP-registered businesses and only within the HTP platform. Currently, at the time of writing, rules and regulations for cryptocurrency exchanges have not been adopted yet which makes the operation of such business in Belarus impractical.

Ukraine

There are no official regulations adopted in Ukraine. Cryptocurrencies are not recognized as a domestic or foreign currency, electronic money or security according to the common statement made by Ukrainian financial regulators in November 2017. Ukraine is, however, actively developing its approach to cryptocurrency and blockchain and efforts were also made to legalize mining operations.

In March 2018, a proposition to include mining operations to the Industrial Classification Code was initiated by the Ukrainian government. According to the latest statement from the Ukrainian State Agency of Special Communication and Information Protection, no special license is required to conduct mining in Ukraine.

A rulemaking workgroup is also currently scrutinizing international experience of cryptocurrency regulations and developing draft regulations for cryptocurrency and blockchain aimed to be filled to Ukrainian parliament for consideration and adoption.

While not being directly regulated or prohibited, virtual currency-related businesses in Ukraine now operate in a “grey zone”.

Gibraltar

Gibraltar is one of the few jurisdictions in the world to have a regulatory framework already in place specifically designed to regulate blockchain businesses. The regulation does not only apply to cryptocurrency exchanges and wallet service providers, it also applies to any company that stores or transmits value belonging to others, using distributed ledger technology, by way of business.

When the government of Gibraltar decided that it wanted to regulate the blockchain industry in 2014, it started working closely with the private sector to identify what the most appropriate form of regulation should be. The aim was to create a principles-based regulatory framework that would be appropriate for blockchain and cryptocurrency businesses and also flexible enough to remain relevant as new technologies develop.

Gibraltar is widely considered as having the gold standard regulatory regime for online gambling and the Government of Gibraltar is confident that it can develop a similar reputation in the distributed ledger technology space.

The principles-based approach means that there are no specific regulatory requirements. The Gibraltar DLT Regulations contain nine principles and, as part of the application process, each applicant will have to demonstrate to the regulator how it addresses, and satisfactorily complies with, each of these principles.

DLT firms in Gibraltar are regulated by the Gibraltar Financial Services Commission (GFSC), who have a team in place dealing exclusively with DLT applications. Early on in the process, the GFSC decided that it would bring a blockchain and cryptocurrency technical expert on board to help shape the regulatory framework. Having an approachable, business-friendly regulator with a profound understanding of cryptocurrencies and distributed ledger technology generally sets Gibraltar apart from the other jurisdictions mentioned above.

Gibraltar is also set to announce complementary token sale regulations. (At the time of writing these

regulations are imminent.) These regulations will oblige token sale issuers to engage authorised sponsors (approved by the GFSC) who will essentially be the gate keepers, ensuring that token sales are carried out in a prudent manner and always follow best practices.

Gibraltar is a small jurisdiction, which has its advantages and disadvantages. For an internationally-focused company, especially one in a fast-moving industry like FinTech, the advantages are often overwhelming. A small jurisdiction like Gibraltar is nimble and can act very quickly to changing environments and changing business needs. Furthermore, being a closely-knit community means close cooperation between government and business, and institutions which offer a greater understanding of business needs. One final advantage over the other jurisdictions mentioned above, is that opening a bank account for a blockchain or cryptocurrency-related business is not a problem. In Gibraltar as there are, in fact, a number of banking solutions available.

To conclude, it is safe to say that each of the jurisdictions set out above has its strengths and weaknesses. Taken as a whole they make a clear case for the need for regulation in this emerging sector, with more and more countries looking into regulating blockchain and cryptocurrency activity. There is probably no such thing as the perfect jurisdiction for blockchain business and each company will want to carefully consider which jurisdiction is best suited to help it achieve its goals. Either way, any company that is shopping around for a jurisdiction should seek legal advice in such jurisdiction before making any meaningful commitments.

By Anthony Provasoli and Serhii Mokhniev.

Anthony Provasoli is a Partner at Hassans and co-chair’s the firm’s FinTech team. Serhii Mokhniev is Regulatory Affairs Counsel at CEX.IO.

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