Abstract

This article provides an overview of the evolving Initial Coin Offerings (“ICOs”) market. It evaluates hand-selected data for the top 25 ICO jurisdictions by market capitalization. The Author codes the regulatory responses of the top 25 ICO jurisdictions in the world and provides a comparative analysis of their respective regulatory actions.


Introduction

 

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

ICOs display several core beneficial characteristics that help explain their attractiveness for crypto start-ups 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, ICOs allow promoters to avoid sacrificing equity for financing. Instead, ICO promoters can use the proceeds from an 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 far fewer points of friction. ICOs enable the promoters to bypass typical legal, jurisdictional, and business hurdles by directly marketing to a worldwide pool of investors. Moreover, in 2018 ICOs are still 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 their 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 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 obtain the earliest possible liquidity from their token reserves simultaneously with the financing for their product launch.

 

I.  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 to vote for or against directors or to nominate directors, ICO investors have no 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 create significant incentives 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 alter the smart contract to change ICO sales rules mid-course during an 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. Most crypto platforms 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, such crypto platforms’ raised revenues are typically required to last for the lifecycle of the platforms, requiring them 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 receive 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, rendering 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 in which they invested. In cases of bankruptcy, token holders have no recourse after the debt holders and outside creditors are satisfied with the liquidation value of the entity. In contrast, in a typical venture capital seed stage investment, the venture capital fund obtains at least a simple liquidity preference. This allows venture capital funds to reclaim their initial seed investment before other creditors are satisfied.

 

II.  Top 25 ICO Countries


To determine the ICOs used for this project, the Author used data generated by ICO Watch List.

1
ICO Statistics – By Country, ICO WATCH LIST, https://icowatchlist.com/statistics/geo (last visited May 21, 2018).
ICO Watch List ranks countries by the number of ICOs launched and provides information as to how much was raised through these ICO projects.

After compiling the ICO list, the Author began researching the regulatory authorities in each of the top 25 countries. The Bank of International Settlements provides a list of different regulatory and supervisory agencies used for the different countries around the world.

2
Regulatory Authorities and Supervisory Agencies, BIS, https://www.bis.org/regauth.htm?m=2%7C269 (last visited May 21, 2018).
Through these websites, the Author was able to examine governmental statements, locating anything that dealt with distributed ledger technology (“DLT”), cryptocurrency, ICOs, etc. After analyzing these statements, the Author coded the responses of the given government.


Figure 1:  Percentage of World ICOs

Figure 1 represents the percentage of  ICOs worldwide that were launched in a given country for 2017. This is based on the raw number of ICOs and not how much was raised through them.


Figure 2: Percentage of the Top 25 Funds Raised

Figure 2 shows the percentage of total ICO-raised funds worldwide that were raised in each of the top 25 ICO countries in 2017. Switzerland led the world in total ICO funds raised, followed by the United States.


Figure 3: Percent of ICOs v. Percent of Funds Raised

Figure 3 is a combination of figures 1 and 2. It shows the discrepancies in the number of ICOs launched and the amount of funds raised. For example, Switzerland was the country where the fourth-most ICOs were launched but where the greatest amount of funds were raised in total.  This can be attributed to the fact that many of the world’s most successful ICOs are launched in Switzerland.


Figure 4: Heat Map of ICO Funds Raised Worldwide

Figure 4 shows on a world map where ICO funds were raised in 2017. The red countries show the highest dollar value of ICO funds raised, followed by the darker green, and then lighter green.


Figure 5: Heat Map of ICO Funds Raised in Europe

Figure 5 presents a more focused version of Figure 4. Switzerland and Israel saw more funds raised than in their surrounding countries. This graphic shows how different countries throughout Europe compared to each other.

 

III.  Regulatory Responses

 

Figure 6: Level of Regulation

Figure 6 depicts the level of relevant regulation in the top 25 ICO countries. This chart indicates that the majority of the countries examined in this study remain in the category of allowing ICOs and cryptocurrencies. Comparatively few countries have banned ICOs and cryptocurrencies altogether. For the most part, the general view of the world governments appears to favor using existing laws to regulate these cryptocurrencies. 


Figure 7: Heat Map - Level of Regulation

Figure 7 shows a heat map of the level of regulation throughout the world. The dark green areas represent the areas in the world where the government has suggested either regulation is premature or has stayed silent. Government bodies of countries in red have stipulated that blockchain technology is prohibited in some capacity in their countries. The shades of light green and yellow fall somewhere in between.


Figure 8: What Regulations Address

Figure 8 shows the sub-issues addressed by governments. ICOs and cryptocurrencies are the main issues addressed. Although (federal) securities law is the main vehicle through which countries are regulating this technology, there is also concern about the regulation of exchanges within such countries which may fall outside of the federal securities laws, at least in part. Finally, few governments have prohibited financial investors from investing, but a greater number of governments have suggested not to participate. Many countries have issued warnings, but have not made a suggestion to their citizens as to whether to take part or not. 

 

Figure 9: What Regulations Address

Figure 9 shows what the top 25 countries are doing to address these new technological developments. Some states have developed and considered these issues more than others. Some have decided to stay silent with respect to the development of regulations involving ICOs and cryptocurrencies. Numerous reasons may exist, e.g.  blockchain technology may not be considered as salient of an issue for certain states, and/or others may not understand the technology and how it applies to existing laws.

Figures 6 through 9 are based on the core regulatory actions or proposals in the jurisdictions covered below (excluding the United States).

3
The regulatory setup for cryptocurrencies and DLT business was still too uncertain in the United States to be included in the discussion infra at the time of this Essay’s publication.
The summaries provided regarding the regulatory responses are naturally incomplete and require much more analysis to be determinative for jurisdictional choices. All research herein is based on the originally issued government guidance on their respective approaches, and not on third-party reporting of such initiatives.

 

United Kingdom

 

The Financial Conduct Authority (“FCA”) is the UK government agency that regulates financial activity such as ICOs and cryptocurrency. The FCA has taken the position that ICOs may be regulated as securities depending on the different aspects and rights the coin holder obtains through holding a given coin.

4
FIN. CONDUCT AUTH., INITIAL COIN OFFERINGS, https://www.fca.org.uk/news/statements/initial-coin-offerings (last visited May 21, 2018).
It proposes a case-by-case analysis to determine whether the ICO falls under the regulatory authority of the FCA.
5
Id.
Additionally, it recognizes lack of jurisdiction when the ICO is based overseas.
6
Id.

The FCA currently does not regulate cryptocurrencies provided they are not part of other regulated products or services.

7
FIN. CONDUCT AUTH., DISCUSSION PAPER 17/3: DISTRIBUTED LEDGER TECHNOLOGY (Apr. 2017), available at http://www.fca.org.uk/publication/discussion/dp17-03.pdf.
Although it states that its objective is to regulate the outcome rather than the process, the FCA has acknowledged that DLT harbors unique aspects that can work around current regulations.
8
Id.
Following an internal study, the FCA determined that the current laws are flexible enough to accommodate DLT businesses, but it will continue to monitor DLT-related market developments and keep its rules and guidance under review for future developments.
9
FIN. CONDUCT AUTH., DISCUSSION PAPER 17/4: DISTRIBUTED LEDGER TECHNOLOGY (Apr. 10, 2017), available at http://www.fca.org.uk.https://www.fca.org.uk/publications/feedback-statements/fs17-4-distributed-ledger-technology.
For instance, the FCA issued a statement that firms conducting regulated activities in cryptocurrency derivatives must comply with all applicable rules in the FCA’s Handbook and any relevant provisions in directly applicable European Union regulations.
10
FIN. CONDUCT AUTH., FCA STATEMENT ON THE REQUIREMENT FOR FIRMS OFFERING CRYPTOCURRENCY DERIVATIVES TO BE AUTHORISED (Apr. 6, 2018), https://www.fca.org.uk/news/statements/cryptocurrency-derivatives.
 

 

Russian Federation

 

The Central Bank of the Russian Federation is the Russian regulatory authority considering ICO and cryptocurrency regulation.

11
Central Bank of the Russian Federation Press Release, Центральный банк Российской Федерации (Банк России) [On the Use of Private “Virtual Currencies” (Crypto Currency)] (Sept. 4, 2017),
At the time of publication, the Central Bank has indicated that regulation of the technology is premature. For this reason, it has declined to put forth any regulations to control ICOs, cryptocurrency, or DLT. Recently, however, several Russian ministries have brought forth regulations pertinent to the space. On January 25, 2018, the Ministry of Finance of the Russian Federation presented a draft of the Digital Assets Regulation Bill which contains a proposal for defining and establishing a regulatory system for cryptocurrencies, ICOs, mining, and trading.
12
MINISTRY FIN. RUSS. FED’N, РОССИЙСКАЯ ФЕДЕРАЦИЯ ФЕДЕРАЛЬНЫЙ ЗАКОН О цифровых финансовых активах [DRAFT FEDERAL LAW ON DIGITAL FINANCIAL ASSETS], (Jan. 25, 2018), available at https://www.minfin.ru/ru/document/?id_4=121810&page_id=2104&popup=Y&area_id=4.
Also, Russia’s Ministry of Communications and Mass Media has published a document establishing the licensing rules for ICO projects.
13
Helen Partz, Russia: Ministry of Communications Requires ICO Issuers to Have $1.7 Mln Nominal Capital, COINTELEGRAPH (Feb. 12, 2018), https://cointelegraph.com/news/russia-ministry-of-communications-requires-ico-issuers-to-have-17-mln-nominal-capital (information from translated document found at http://regulation.gov.ru/projects#npa=78254).

 

Switzerland

 

The Swiss Financial Market Supervisory Authority (“FINMA”) has the power to regulate financial matters within Switzerland.  FINMA published guidelines on “how it will deal with enquiries regarding the supervisory and regulatory framework for ICOs.  The guidelines specify the information required by FINMA to process enquiries from market participants and also set out the principles on which FINMA will respond to them.”

14
SWISS FIN. MKT. SUPERVISORY AUTH. [hereinafter “FINMA”], GUIDELINES FOR ENQUIRIES REGARDING THE REGULATORY FRAMEWORK FOR INITIAL COIN OFFERINGS (ICOS) (Feb. 16, 2018), available at https://www.finma.ch/en/~/media/finma/dokumente/dokumentencenter/myfinma/1bewilligung/fintech/wegleitung-ico.pdf.
If, based on these new guidelines, FINMA determines that an ICO constitutes a security, then the ICO would fall under securities regulation. These guidelines are a complement to previously published guidance wherein FINMA stated it supports blockchain technology and sees its benefits within the financial markets.
15
FINMA, GUIDANCE 4/2017: REGULATORY TREATMENT OF INITIAL COIN OFFERINGS (Sep. 29, 2017).

 

Singapore

 

The relevant regulatory authority in Singapore is the Monetary Authority of Singapore. In August of 2017, MAS released guidance on how it plans to approach regulation of digital tokens.

16
Monetary Authority of Singapore Media Release, MAS clarifies regulatory position on the offer of digital tokens in Singapore (Aug. 1, 2017), http://www.mas.gov.sg/News-and-Publications/Media-Releases/2017/MAS-clarifies-regulatory-position-on-the-offer-of-digital-tokens-in-Singapore.aspx.
In this statement MAS stated that it will regulate tokens if they fall under the Securities and Futures Act (“SFA”).
17
Id.
There is no direct regulation under the SFA unless the currency is linked to an ownership or security interest in the issuer’s assets or property.
18
Id.
If such rights are attached to the currency, the issuer must register with MAS, unless exempted for another reason.
19
Id.

MAS also issued a warning to investors considering investing in these securities.

20
Monetary Authority of Singapore Media Release, Consumer Advisory on Investment Schemes Involving Digital Tokens (Aug. 10, 2017), http://www.mas.gov.sg/News-and-Publications/Media-Releases/2017/Consumer-Advisory-on-Investment-Schemes-Involving-Digital-Tokens.aspx.
If the securities fall under the MAS regulations, there is a triggering of conduct rules which concern fair dealing. If the security falls outside of the MAS regulations, there is no duty of fair dealing.
21
Id.

 

Lithuania

 

Lithuania’s pertinent regulatory body, the Bank of Lithuania, takes the position that these financial devices in question are too risky and discourages investors.

22
BANK OF LITHUANIA, POSITION OF THE BANK OF LITHUANIA ON VIRTUAL CURRENCIES AND INITIAL COIN OFFERING (Oct. 10, 2017), available at https://www.lb.lt/uploads/documents/files/Pozicijos%20del%20virtualiu%20valiutu%20ir%20VV%20zetonu%20platinimo%20EN.pdf.
If a party still decides to launch an ICO or cryptocurrency under Lithuanian jurisdiction, the current laws surrounding securities and money laundering may apply.
23
Id.

The terms for financial institutions stipulate that if a financial institution seeks exposure to cryptocurrencies, the financial services of the cryptocurrency are separated from other investments.

24
Id.
Although this may be difficult for many institutions, there is still a possibility that a financial institution can invest in cryptocurrency if it keeps the crypto exposure separate. 

 

Australia

 

The Australian Securities and Investment Commission (“ASIC”) is the regulatory body for cryptocurrency in Australia. Australia has provided general guidance  for determining whether its Corporations Act applies to ICOs and cryptocurrencies.

25
AUSTL. SEC. & INV. COMM’N, INFORMATION SHEET 225: INITIAL COIN OFFERINGS AND CRYPTO-CURRENCY (May 2018), http://asic.gov.au/regulatory-resources/digital-transformation/initial-coin-offerings.
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”).
26
A MIS is present if (1) people contribute assets (such as digital currency) to obtain an interest in the scheme (“interests” in a scheme are generally a type of “financial product” and are regulated by the Corporations Act), (2) the assets are pooled together with one or more other contributors or used in a common enterprise to produce financial benefits or interests in property, and (3) the contributors do not have day-to-day control over the operation of the scheme but, at times, may have voting rights or similar rights. Id.
A few other possible triggers of the Corporations Act involve, for instance, whether the ICO is being offered as a share of a company, as a directive, or as a non-cash payment.

Australia has also implemented an “Innovation Hub” to help fintech companies comply with and navigate the regulatory world.

27
Id.
Through this program, the ASIC is able to keep track of what is happening in the market.
28
AUSTL. SEC. & INV. COMM’N, INNOVATION HUB, http://asic.gov.au/for-business/your-business/innovation-hub (last visited May 23, 2018).
This aids both sides in eliminating potential uncertainties.

In response to questions about DLT, ASIC has stated that the existing regulatory framework is able to accommodate DLT in the use cases reviewed to date, but that it anticipates additional regulatory conditions may arise.

29
AUSTL. SEC. & INV. COMMISSION, INFORMATION SHEET 225: EVALUATING DISTRIBUTED LEDGER TECHNOLOGY (Mar. 2017), available at http://asic.gov.au/regulatory-resources/digital-transformation/evaluating-distributed-ledger-technology/#framework.

 

Gibraltar

 

The Gibraltar Financial Service Commission is in charge of regulating cryptocurrency in Gibraltar. Gibraltar has taken notice of the increased use of DLT, cryptocurrency and exchanges.

30
GIBRALTAR FIN. SERVICES COMM’N, STATEMENT ON INITIAL COIN OFFERING (Sept. 22, 2017), available at http://www.gfsc.gi/news/statement-on-initial-coin-offerings-250.
Effective January 1, 2018, the Financial Services (Distributed Ledger Technology Providers) Regulations 2017 address each.
31
GIBRALTAR FIN. SERVICES COMM’N, FINANCIAL SERVICES (DISTRIBUTED LEDGER TECHNOLOGY PROVIDERS) REGULATIONS 2017 (Oct. 12, 2017), available at http://www.fsc.gi/uploads/DLT%20regulations%20121017%20(2).pdf.

GFSC states that “[t]he DLT framework positions Gibraltar as a jurisdiction which facilitates innovation, whilst ensuring it continues to meet its regulatory and strategic objectives, and understands the modern need for robust and speedy interaction with regulators in this fast moving area of business. The DLT framework applies to activities, not subject to regulation under any other regulatory framework, that use DLT for the transmission or storage of value belonging to others. Firms and activities that are subject to another regulatory framework continue to be regulated under that framework.”

32
GIBRALTAR FIN. SERVICES COMM’N, DISTRIBUTED LEDGER TECHNOLOGY REGULATORY FRAMEWORK (DLT FRAMEWORK), http://www.fsc.gi/dlt (last visited Apr. 24, 2018).
Gibraltar recognizes that this area of the law is evolving and innovative, and as such is better achieved through the “application of principles rather than rigid rules.”
33
Id.

 

Germany

 

Germany’s Federal Financial Supervisory Authority (“BaFin”) has issued a letter of advice in which it comments on the regulatory classification of tokens in the area of securities supervision.  ICOs are covered by the applicable regulatory requirements depending on the configuration of the token, and assessed by BaFin on a case-by-case basis with respect to the language of the statutory provisions under securities supervision law.

34
Federal Financial Supervisory Authority [hereinafter “BaFin”], Initial Coin Offering: Note on the Classification of Tokens as Financial Instruments, Ref. No. WA 11-QB 4100-2017/0010 (Mar. 28, 2018), https://www.bafin.de/SharedDocs/Downloads/EN/Merkblatt/WA/dl_hinweisschreiben_einordnung_ICOs_en.html.
”The decisive factor is which rights are associated with the respective token.”
35
BaFin, Initial Coin Offerings: BaFin Publishes Notes on Classification as Financial Instruments, (Mar. 15, 2018), https://www.bafin.de/SharedDocs/Veroeffentlichungen/DE/Fachartikel/2018/fa_bj_1803_ICOs.html.
A prior classification of the token (i.e. as a “participation token,” “utility token,” or “payment token”) can provide initial guidance as to the type of token it is under German law, but is not to be relied upon outside of a comprehensive and binding regulatory classification.
36
Id.
If a token is found to be regulated by a particular securities law, failure to comply with the relevant portions may result in BaFin prohibiting the relevant transaction, and could constitute administrative offenses punishable by fines.
37
Id.

 

Canada

 

The Canadian Securities Administration (“CSA”) is the relevant regulatory authority in Canada. The CSA applies a four-factor test in determining whether a cryptocurrency should be registered as a security.

38
Ontario Securities Commission News Release, Canadian Securities Regulators Outline Securities Law Requirements That May Apply To Cryptocurrency Offerings (Aug. 24, 2017), http://www.osc.gov.on.ca/en/NewsEvents_nr_20170824_cryptocurrency-offerings.htm.
The factor test considers 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.
39
CANADIAN SECURITIES ADMINISTRATORS STAFF NOTICE 46-307: CRYPTOCURRENCY OFFERINGS (Aug. 24, 2017), available at http://www.osc.gov.on.ca/en/SecuritiesLaw_csa_20170824_cryptocurrency-offerings.htm, (Last visited Jan. 8, 2017).

The CSA has also developed a regulatory sandbox specifically for fintech companies to stay in compliance.

40
Id.
The regulatory sandbox allows a fast track for registration or exemption depending on the circumstances.
41
Id.
The thought behind the regulatory sandbox is to allow a flexible process for complying with the current regulations.
42
Id.

Finally, the CSA touches on exchanges and how this relates to regulation. In determining whether an exchange must be registered, it sets forth qualifications to be a marketplace.

43
Id.
When an exchange is considered a marketplace
44
A marketplace consists of three elements: (1) brings together buyers and sellers of securities; (2) brings together the orders for securities of multiple buyers and sellers; and (3) uses established non-discriminatory methods.
or alternative trading system,
45
An ATS differs from an exchange in that it: (1) requires an issuer to enter into an agreement to have its securities traded on the marketplace; (2) provides, directly, or through one or more subscribers, a guarantee of a two-sided market for a security on a continuous or reasonably continuous basis; (3) sets requirements governing the conduct of subscribers, other than conduct in respect of the trading by those subscribers on the marketplace; and (4) disciplines subscribers other than by exclusion from participation in the marketplace.
the exchange is required to register.
46
CANADIAN SECURITIES ADMINISTRATORS, supra note 39.

 

Israel

 

The Bank of Israel’s Deputy Governor stated in a speech that “bitcoin and similar virtual currencies are not a currency, and are not considered foreign currency.  The Bank of Israel’s position is that they should be viewed as a financial asset, with all that this entails.”

47
Nadine Baudot-Trajtenberg, Bank of Israel Deputy Governor, Activity and Use of Virtual Currencies, remarks at the Knesset Finance Committee Meeting on Activity and Use of Virtual Currencies (Jan. 8, 2018), available at http://www.boi.org.il/en/NewsAndPublications/PressReleases/Pages/8-1-18-DeputyGove.aspx.
In February 2018, Israel’s Tax Authority confirmed that it would treat bitcoin and other cryptocurrencies as a kind of property for tax purposes.
48
Annaliese Milano, Israel Confirms it Will Tax Bitcoin as Property, COINDESK (Feb. 19, 2018), https://www.coindesk.com/israel-confirms-will-tax-bitcoin-property. The official notice is available in Hebrew at https://taxes.gov.il/About/SpokesmanAnnouncements/Pages/Ann_190218_1.aspx.
As such, “[p]rofits from cryptocurrencies will be subject to capital gains tax at rates between twenty percent and twenty-five percent, while individuals mining or trading cryptocurrencies in connection with businesses must pay a seventeen percent value-added tax (“VAT”) in addition to capital gains tax.”
49
Id.
Earlier in January, the Tax Authority had released a draft statement that considered the methods of taxing ICOs with VAT, but the February statement does not mention any decisions regarding ICO taxation methods.
50
Molly Jane Zuckerman, Israel Confirms Cryptocurrency Will Be Taxed as Property, Not Currency, COINTELEGRAPH (Feb. 20, 2018), https://cointelegraph.com/news/israel-confirms-cryptocurrency-will-be-taxed-as-property-not-currency.

 

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,

51
NATIONAL BANK OF UKRAINE, COMMENT OF THE DEPUTY CHAIRMAN OF THE NATIONAL BANK OF UKRAINE OLEG CHURIA ON THE STATUS OF BITCOIN IN UKRAINE (Aug. 11, 2017), available at http://bank.gov.ua/control/uk/publish/article?art_id=53411806&cat_id=55838.
concluding that Ukraine has not yet taken a position on the issue. Instead, the discussion on the issue is scheduled for the next financial stability board meeting, which will be held in August of 2018.
52
Id.
At present, Ukraine has not staked an official position on its treatment of DLT.

 

France

 

The Autorite Des Marchés Financiers (“AMF”) is France’s regulatory authority on the matter of cryptocurrency. The AMF has taken the position that it remains to be decided how to approach regulation.

53
Autorité des Marchés Financiers [hereinafter “AMF”] News Release, The AMF publishes a discussion paper on Initial Coin Offerings and institutes the Unicorn Program, (Oct. 26, 2017), http://www.amf-france.org/en_US/Actualites/Communiques-de-presse/AMF/annee-2017?docId=workspace%3A%2F%2FSpacesStore%2F5097c770-e3f7-40bb-81ce-db2c95e7bdae, (last visited Jan. 31, 2017).
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 regulation considered by the government are: (1) promote 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.
54
Id.
After considering public comments on the options, the AMF Board decided to continue to work on “the definition of a specific legal framework for ICOs providing for the appropriate guarantees, particularly in terms of information, which will be necessary for this new type of offer.”
55
AMF News Release, The AMF publishes the summary of responses to the public consultation on initial coin offerings (ICO) (Feb 22, 2018), http://www.amf-france.org/en_US/Actualites/Communiques-de-presse/AMF/annee-2018?docId=workspace%3A%2F%2FSpacesStore%2F57711a6c-4494-4215-993b-716870ffb182.
The AMF Board also has reached the conclusion that platforms which offer cryptocurrency derivatives must confirm that these products are prohibited from advertising such offers via electronic means, irrespective of the legal qualifications of a cryptocurrency.
56
AMF News Release, The AMF considers that the offer of cryptocurrency derivatives requires authorisation and that it is prohibited to advertise such offer via electronic means (Feb. 22, 2018), http://www.amf-france.org/en_US/Actualites/Communiques-de-presse/AMF/annee-2018?docId=workspace%3A%2F%2FSpacesStore%2Fa225bf1d-de35-4f58-89e3-f03cb7e9e551.

 

Spain

 

There is currently no official regulation of ICOs or cryptocurrency beyond gambling laws in Spain. However, in February 2018, a joint press statement was released by the Banco de España and the Comisión Nacional del Mercado de Valores (“CNMV”), accompanied by “Considerations” on cryptocurrencies and ICOs, laying out Spain’s concerns and guidance in these areas.

57
Comisión Nacional del Mercado de Valores [hereinafter “CNMV”] and Banco de España Joint Press Statement, On “Cryptocurrencies” and “Initial Coin Offerings” (ICOs) (Feb. 8, 2018), https://www.bde.es/f/webbde/GAP/Secciones/SalaPrensa/NotasInformativas/18/presbe2018_07en.pdf; CNMV, CNMV CONSIDERATIONS ON CRYPTOCURRENCIES AND ICOS ADDRESSED TO MARKET PROFESSIONALS (Feb. 8, 2018), available at http://www.cnmv.es/Portal/verDoc.axd?t=%7b62395018-40eb-49bb-a71c-4afb5c966374%7d.
In particular, the Considerations “seek to offer initial guidance about the consequences of so-called ‘Initial Coin Offerings’ (ICOs) from the regulatory standpoint, and are subject to potential coordinated approaches or regulatory developments at the national, European or international level.”
58
Id.

 

Poland

 

In July 2017, a joint statement by the National Bank of Poland and Financial Supervision Commission stated that cryptocurrencies are not considered legal tender.

59
NAT’L BANK OF POL. & POL. FIN. SUPERVISION AUTH., ANNOUNCEMENT OF THE NATIONAL BANK OF POLAND AND THE POLISH FINANCIAL SUPERVISION AUTHORITY REGARDING VIRTUAL CURRENCIES (July 7, 2017), available at https://www.knf.gov.pl/knf/en/komponenty/img/Statement_by_NBP_and_KNF_on_virtual_currencies_7_07_2017_57364.pdf.
In light of this position, the Polish government issued warnings about investing.
60
Id.
The government makes a clear distinction between investing in DLT and virtual currencies.
61
Id.
The government says that DLTs may be subject to other laws that do not apply to virtual currencies.
62
Id.
The statement does not explicitly prohibit financial institutions from participating in the crypto market but advises these institutions not to invest. 

While there is some indication that Poland’s government is open to the possibility of a national digital currency,

63
Arnab Shome, Poland is Developing National Cryptocurrency, FINANCE MAGNATES (Jan. 17, 2018), https://www.financemagnates.com/cryptocurrency/news/poland-developing-national-cryptocurrency.
the National Bank of Poland was quick to assert that only the National Bank is authorized to issue money and to determine and implement monetary policy, and that it is not carrying out work on the issue of digital currency.

 In addition, Poland’s Ministry of Finance released an interpretation of Poland’s tax code in April 2018 which states that in connection with the obligations to a file a tax return for 2017, all income from cryptocurrency transactions is subject to either an 18 percent or a 32 percent tax rate, and that the sale and exchange of cryptocurrencies into traditional currency and vice versa, as well as the exchange of one cryptocurrency for another, could create a VAT tax obligation.

64
Ministry of Finance News Statement, Skutki podatkowe obrotu kryptowalutami w PIT, VAT i PCC [Tax Effects of trading in Cryptocurrencies in PIT, VAT and PCC] (Apr. 4, 2018), https://www.mf.gov.pl/ministerstwo-finansow/wiadomosci/aktualnosci/ministerstwo-finansow2/-/asset_publisher/M1vU/content/skutki-podatkowe-obrotu-kryptowalutami-w-pit-vat-i-pcc.

The Polish Financial Supervision Authority (“KNF”) issued an additional statement concerning ICOs specifically.

65
POL. FIN. SUPERVISION AUTH, THE KNF’S STATEMENT ON SELLING SO-CALLED COINS OR TOKENS (INITIAL TOKEN OFFERINGS – ITOS OR INITIAL COIN OFFERINGS – ICOS) (Nov. 22, 2017), available at https://www.knf.gov.pl/knf/en/komponenty/img/The_KNFs_statement_on_selling_socalled_coins_or_tokens_ICO_60238.pdf.
The statement laid out what an ICO is and the risks associated with investing.
66
Id.
Per the KNF, depending on how the currency is structured, there can be a lack of legal protections if the currency does not fall under the regulations that financial markets are required to follow.
67
Id.
 

 

Liechtenstein

 

Until recently, Liechtenstein had been relatively silent with regards to a stance on whether securities law applies to ICOs and cryptocurrencies. In September 2017, the Financial Market Authority published a fact sheet concerning ICOs and cryptocurrency.

68
FIN. MARKET AUTH., FACT SHEET ON INITIAL COIN OFFERINGS (Sept. 10, 2017), available at https://www.fma-li.li/files/fma/fma-factsheet-ico.pdf.
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.
69
Id.
For corporations with questions concerning ICOs, Liechtenstein has established a fast track fintech department to address these issues.
70
Id.

In December of 2017, the Financial Market Authority issued the non-profit organization CBN a no-action letter.

71
CBN FOUNDATION, https://cbn.foundation (last visited Jan. 19, 2017).
It is important to note that CBN’s ICO currency did not come attached with any rights to assets or property.
72
Id.
This action could be seen as an indicator of the government’s position on companies engaging in ICO and cryptocurrency activity.

 

China

 

The People’s Republic of China has taken a firm stance against ICOs, banning them entirely.

73
CHINA BANKING REG. COMM’N, 关于防范代币发行融资风险的公告 [NOTICE ON PREVENTING THE FINANCING RISK OF THE ISSUING OF TOKENS], (Sept. 4, 2017), http://www.cbrc.gov.cn/Chinese/home/docView/BE5842392CFF4BD98B0F3DC9C2A4C540.html.
This ban also applies to the offering of coins and the exchanges used to trade coins.
74
Id.
The official Chinese stance is that ICOs hurt the market because of potential deception and fraud.
75
Id.
The PRC recognizes that such problems have been widespread nationally. Yet some industry experts expect that the ban on ICOs in China will be lifted in 2018.

 

Luxembourg

 

The Commission de Serveillance du Secteur Financier (“CSSF”) is the regulatory authority tasked with the regulation of cryptocurrency.  The CSSF has not issued any regulations by themselves, but in a recent “Warning on Initial Coin Offerings (“ICOs”) and Tokens” it stated, “[d]espite the lack of specific regulations that applies to ICOs, the activities related thereto or implied through the creation of tokens, the collection and raising of funds may, depending on their characteristics, be subject to certain legal provisions in Luxembourg and thus to certain supervisory requirements.”

76
COMMISSION DE SURVEILLANCE DU SECTEUR FINANCIER, WARNING ON INITIAL COIN OFFERINGS (“ICOS”) AND TOKENS (Mar. 14, 2018), available at http://www.cssf.lu/fileadmin/files/Protection_consommateurs/Avertissements/W_ICOS_140318_eng.pdf

 

Costa Rica

 

There is currently no regulation of ICOs, cryptocurrency or blockchain technology in Costa Rica. However, the Central Bank of Costa Rica released an opinion with respect to cryptocurrencies that states, “bitcoin and other similar cryptocurrencies do not have the backing of the Central Bank of Costa Rica.”

77
CENTRAL BANK OF COSTA RICA, POSICIÓN DEL BANCO CENTRAL DE COSTA RICA (BCCR) Y SUS ÓRGANOS DE DESCONCENTRACIÓN MÁXIMA (ODM) CON RESPECTO A LAS CRIPTOMONEDAS [POSITION OF THE CENTRAL BANK OF COSTA RICA (BCCR) AND ITS MAXIMUM DECONCENTRATION BODIES (ODM) WITH RESPECT TO CRYPTOCURRENCIES], (Oct. 9, 2017), https://www.bccr.fi.cr/seccion-noticias/Noticia/Posicion_bccr_criptomonedas.aspx.
Since cryptocurrencies are not issued by foreign central banks, they cannot be considered foreign currency and thus cannot fall under the regulations of the exchange regime.
78
Id.
It is emphasized that the Central Bank does not regulate or supervise cryptocurrencies and that those who deal in cryptocurrencies do so at their own risk.
79
Id.

 

Argentina

 

Virtual currency is defined under Resolución 300/2014 by the Unidad de Información Financiera Aquellos (Financial Information Unit, Argentina’s anti-money laundering agency) as “digital representation of value that may be the object of digital commerce and whose functions are to constitute a means of exchange, and/or a unit of account, and/or a reservation of value, but which have no legal tender, are not issued, and are not guaranteed by any country or jurisdiction.”

80
FIN. INFO. UNIT, RESOLUCIÓN 300/2014: PREVENCIÓN DEL LAVADO DE ACTIVOS Y DE LA FINANCIACIÓN DEL TERRORISMO [RESOLUTION 300/2014: PREVENTION OF MONEY LAUNDERING AND TERRORISM] (July 4, 2014), https://www.boletinoficial.gob.ar/#!DetalleNormaBusquedaAvanzada/108558/20140710.
The Resolution adds that those who proceed with transactions in this area should proceed with caution and must make certain disclosures.
81
Id.
The futures market of Mercado de Termino de Rosario is considering bitcoin applications.

 

Serbia

 

The National Bank of Serbia is the regulatory authority over ICOs in Serbia. Serbia has taken the position that financial institutions are not allowed to participate in ICOs or other cryptocurrency investments because they are not legal tender.

82
NATIONAL BANK OF SERBIA, NBS WARNS THAT BITCOIN IS NOT LEGAL TENDER IN SERBIA (Oct. 2, 2014), http://www.nbs.rs/internet/english/scripts/showContent.html?id=7607&konverzija=yes.
For individuals, the government warns against investment in light of security issues.
83
Id.

In addition to the disallowance of cryptocurrency as legal tender, in 2016 the National Bank of Serbia stipulated that it would be considering regulation on the treatment of cryptocurrencies.

84
NATIONAL BANK OF SERBIA, BITCOIN WILL NOT REPLACE EURO OR ANY OTHER CURRENCY (May 4, 2016), http://www.nbs.rs/internet/latinica/scripts/showContent.html?id=9612&konverzija=yes.
At the time of publication, no new regulation from the Serbian authorities has been released.

 

Slovakia

 

The Slovakian regulatory body that deals with financial matters including cryptocurrency is the National Bank of Slovakia.

85
NATIONAL BANK OF SLOVAKIA, NIEKOĽKO ÚVAH K VIRTUÁLNEJ MENE BITCOIN (2017) [SEVERAL CONSIDERATIONS ON THE VIRTUAL CURRENCY BITCOIN], available at http://www.nbs.sk/_img/Documents/_PUBLIK_NBS_FSR/Biatec/Rok2013/08-2013/06_biatec13-8_nadasky.pdf (last visited Jan. 19, 2018).
The National Bank takes the view that cryptocurrencies are not considered currency because countries enjoy monetary sovereignty.
86
Id.
This complicates regulation of cryptocurrencies because they do not fall under the monetary policy of the country.
87
Id.
This also means that cryptocurrencies do not fall under the definition of electronic money because they have no monetary value.

In March 2018, Slovakia’s Ministry of Finance announced general guidance stating that income from cryptocurrency must be taxed.

88
Jan Stojaspal, Slovakia to Tax Cryptocurrency Income, BLOOMBERG TAX (Mar. 28, 2018), https://www.bna.com/slovakia-tax-cryptocurrency-n57982090526.
“‘Any type of exchange, for example, an exchange of a virtual currency for an asset’ or its ‘exchange for a service rendered or its paid transfer, including its exchange for another virtual currency’ is considered to be a taxable sale.”
89
Id.
The guidance is not binding but is regarded as best practices.
90
Id.

 

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 has since declined to take a position on regulation.

91
BANK OF SLOVENIA, FINANCIAL STABILITY BOARD WARNING (Sept. 10, 2017), https://www.bsi.si/en/media/1138/financial-stability-board-warning.
Currently, there are no regulations or positions taken by the government beyond the formal warning.
92
Id.

There is hope that when the government finally takes a stance on the treatment of ICO and cryptocurrency regulation, it will be with the aim of fostering innovation as opposed to imposing restrictions. In a statement, the Prime Minister said that the country is currently studying the technology in the hopes of Slovenia become the blockchain hub of the European Union.

93
Miro Cerar, Prime Minister of Slovenia, A vision for the development of regulation of blockchain technology in modern society, speech at Slovenia’s Challenges 2020 (Oct. 11, 2017), http://www.vlada.si/en/prime_minister/news/a/slovenias_challenges_2020_a_vision_for_the_development_and_regulation_of_blockchain_technology_in_modern_society_1108.
One of the ways the government is looking to accomplish this goal is through a Blockchain Think Tank, offering companies a point of contact on compliance and development issues.
94
Id.

 

Myanmar

 

Myanmar officials have not taken a position on blockchain technology. The current regulatory power in Myanmar is the Central Bank of Myanmar. Any regulations concerning ICOs or cryptocurrency likely would be issued by it.

 

Sweden

 

The Swedish regulatory authority finansinspektionen (“FI”) controls regulation around ICOs and cryptocurrency. The FI has taken the stance that ICOs are investment products that may be traded.

95
FINANSINSPEKTIONEN, FI ROLE REGARDING INNOVATION (Dec. 1, 2017), available at https://fi.se/contentassets/d3cd30fe473d4a7995f0c38209ddb7f1/myndighetens-roll-kring-innovationer-sammanfattning-eng.pdf.
Although there is no explicit ban on financial companies raising money through ICOs,
96
Id.
few Swedish companies have made attempts. Along with the FI’s notice, Sweden also has issued a warning regarding the risks associated with cryptocurrencies and the ICO market.
97
FINANSINSPEKTIONEN, VARNING FÖR RISKER MED INITIAL COIN OFFERINGS (ICO) [WARNING FOR RISKS WITH INITIAL COIN OFFERINGS (ICO)] (Nov. 7, 2017), http://www.fi.se/sv/publicerat/nyheter/2017/varning-for-risker-med-initial-coin-offerings.
In addition to its general warning, the FI cites European Securities and Markets Authority publications that reference, depending on the cryptocurrency structure, a possible triggering of securities law as well as other consequences.
98
Id.

 

Conclusion

 

The majority of the countries examined in this study permit ICOs and cryptocurrencies or do not explicitly prohibit them. Of the entirety of countries considered, only a very small minority has banned ICOs and cryptocurrencies altogether. For the most part globally, governments have adhered to using existing laws to regulate cryptocurrencies, or waiting 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, and government guidance discouraging consumer participation.


____________________
The Author is grateful for outstanding research assistance from Samuel Evans and research librarian Nicole Catlin.