Initial Coin Offerings: The Top 25 Jurisdictions and their Comparative Regulatory Responses (as of May 2018)
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.
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.
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.
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).
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.
The FCA currently does not regulate cryptocurrencies provided they are not part of other regulated products or services.
The Central Bank of the Russian Federation is the Russian regulatory authority considering ICO and cryptocurrency regulation.
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.”
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.
MAS also issued a warning to investors considering investing in these securities.
Lithuania’s pertinent regulatory body, the Bank of Lithuania, takes the position that these financial devices in question are too risky and discourages investors.
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.
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.
Australia has also implemented an “Innovation Hub” to help fintech companies comply with and navigate the regulatory world.
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.
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.
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.”
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.
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.
The CSA has also developed a regulatory sandbox specifically for fintech companies to stay in compliance.
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.
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.”
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,
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.
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.
In July 2017, a joint statement by the National Bank of Poland and Financial Supervision Commission stated that cryptocurrencies are not considered legal tender.
While there is some indication that Poland’s government is open to the possibility of a national 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.
The Polish Financial Supervision Authority (“KNF”) issued an additional statement concerning ICOs specifically.
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.
In December of 2017, the Financial Market Authority issued the non-profit organization CBN a no-action letter.
The People’s Republic of China has taken a firm stance against ICOs, banning them entirely.
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.”
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.”
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.”
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.
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.
The Slovakian regulatory body that deals with financial matters including cryptocurrency is the National Bank of Slovakia.
In March 2018, Slovakia’s Ministry of Finance announced general guidance stating that income from cryptocurrency must be taxed.
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.
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.
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.
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.
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.