by Awesome Author | Feb 20, 2021 | Blockchain
Remember tokenized securities or securitization with tokens on the blockchain?
With the entire year in crypto defined by a maelstrom of projects embarking on decentralized finance (DeFi) aspects to their products, it can be easy to forget that previous advancements in blockchain-based technologies have continued to make great headway in terms of adoption and application.
Security tokens and tokenized securities
In 2019 especially, with greater regulatory scrutiny on blockchain-based crowdfunding in the shape of initial coin offerings (ICOs), many projects sought to reconcile crypto’s much-maligned aspect of democratic fundraising with increasingly unforgiving regulatory compliance. Hence the proliferation of Security Token Offerings (STOs) that are meant to replace ICOs as legitimate, law-abiding instruments to raise funds and issue securities through blockchain-based tokens.
It’s important here to distinguish between security tokens and tokenized securities — often used interchangeably, but hardly the same thing. In the former, blockchain technology is used to create new tokens that are a representation of real-world “securities”, ie. crypto assets that share some qualities as securities in the traditional sense. In the latter, we are talking about existing assets (securities) in the real world, that is expressed digitally… wrapped, if you will, in a token technology.
An overlooked breakthrough
Put in another way, security tokens create a token and create securities, but tokenized securities simply digitalize existing securities. That really is something that solves a major problem with traditional securities, which makes it somewhat surprising that it hasn’t been picked up more.
Tokenizing securities immediately helps with widening the market and improving their liquidity. In addition, it’s not a new product so it isn’t so much something for regulators to look at, it simply is a new, digital channel for distribution, which actually makes tokenized securities simpler to approve.
They’re not just an idea, they’re already here.
Because tokenizing securities are comparatively simple to do, there actually have been quite a number of them entering the market. Last year, we saw traditional funds as 22X Fund put together a tokenized fund (with money raised through an ICO in fact in 2018) to invest in 22 startups. But SPiCE will argue it was even earlier, as the VC fund set up in 2017 and lays claim to being the first tokenized VC fundable to offer immediate liquidity for venture capital — which otherwise takes years to liquidate!
This year, AllianceBlock, which is building the “world’s first globally compliant decentralized capital market” partnered with another blockchain firm AIKON for a secure blockchain-based identity management service — making decentralized finance services accessible to all, and securing that access with the blockchain.
The data already shows that the coming years will see securities very soon fully digitized and empowered by blockchain. From owning a small share in your favorite soccer club to fractional ownership of pizza restaurants in a country halfway around the world from you, using blockchain for authentication is spelling out a way for $256 trillion worth of real-world assets, mostly illiquid as physical representations, to go digital.
As they say in blockchain, tokenized securities are a matter of when not if.
The original article was published at aikon.com
Featured Image Credits: Pixabay
by Awesome Author | Aug 18, 2018 | Cryptocurrency
The meteoric rise of cryptocurrencies has taken the world by storm. Innovators, investors, users, and governments are scrambling to wrap their heads around cryptocurrency and the blockchain technology that they rely upon. The emergence of a new market and business model has created great opportunities for participants, but it also carries significant risk.
Cryptocurrencies present an inherently unique challenge to governments because of their new technology, cross-jurisdictional nature, and frequent lack of transparency. Governments are struggling to develop new ways to regulate cryptocurrencies, adapt existing regulations, and identify fraudulent schemes. Cryptocurrencies and their regulations are evolving before our eyes, and this article will provide a brief background on cryptocurrencies and an overview of where cryptocurrency regulations currently stand.
What are cryptocurrencies?
Cryptocurrency is, by any other name, a currency—a medium of exchange used to purchase goods and services. Or, as some have suggested, cryptocurrency is a “peer-to-peer version of electronic cash.” However, this currency has two qualities that distinguish it from traditional bills and coins.
First, cryptocurrency is a virtual currency that is created through cryptography (i.e. coding) and developed by mathematical formulas through a process called hashing. Second, unlike traditional bills and coins that are printed and minted by governments around the world, cryptocurrency is not tied to any one government and thus is not secured by any government entity. The fact that cryptocurrencies are not secured by a government authority has led to concerns from critics that this is the second coming of Tulipmania, because we are ascribing value to an otherwise valueless item. However, the potential for cryptocurrencies as a medium of exchange remains enormous.
What is blockchain?
Blockchain is the technology at the heart of most cryptocurrencies, and explaining the technology in detail would require a blog post of its own. What is important to know is that a blockchain is a record of peer-to-peer transactions categorized into blocks on a distributed ledger. Despite the obtuse terminology, blockchain functions similarly to a local bank authorizing and recording a transaction, but instead of only one party holding the entire ledger book, the transactions are recorded communally by member nodes, with each node being a computer in a peer-to-peer distributed network.
The blockchain can confirm a transaction within minutes, removing errors that exist when trying to reconcile and audit separate ledgers and transactions. Whenever a transaction takes place, the miners on the blockchain develop a new hash and digital signature to update the ledger and create a new “block.” This block, or recorded transaction, is time-stamped and encrypted and will remain on the blockchain for life.
Regulation in the US – Utility Tokens v. Investment Tokens
In the United States, there has been no federal regulation of cryptocurrencies. Instead, cryptocurrencies are often grouped into two non-binding categories: (1) investment tokens that fall under the purview of already existing U.S. securities laws like the Securities Act of 1933 and the Securities Exchange Act of 1934, and (2) utility tokens, which remain largely unregulated (for now).
Whether the tokens being offered in connection with a particular cryptocurrency are security tokens is decided on a case-by-case basis that even experienced securities lawyers can disagree upon. Tokens are usually analyzed under the four-part Howey Test below to see if the token is in fact a security. Securities must meet the following criteria:
- An investment of money
- In a common enterprise
- With an expectation of profits
- Predominantly from the efforts of others
Each characteristic of the token is analyzed against this framework to see if the cryptocurrency is in reality functioning as a new-age security. If it is, then regulators treat it as such, and cryptocurrencies must then be registered and handled with all of the same disclosures and precautions as any other security sold in the United States or to U.S. investors.
Cryptocurrencies can also be categorized as non-security utility tokens. These tokens purport to offer intrinsic utility and value and are typically instrumental in powering blockchain technology. These tokens function more like commodities than securities, and while they may act like currency in a fully functional network, they also have other values.
However, having a utility token with a properly formed and functioning network does not preclude said token from being labeled a security by the SEC. In, the Matter of Munchee, Inc., a purported utility token with a non-functioning network was labeled a security by the SEC. While labeling a token without a functioning network as a security – as it has no present utility – is not unexpected, the SEC also concluded that: “even if [Munchee] tokens had a practical use at the time of the offering, it would not preclude the token from being a security.”
After analyzing the Munchee Tokens under the Howey test, the SEC concluded that they were investment contracts because purchasers of the tokens had an expectation of profits predominantly from the efforts of Munchee and its staff. The SEC further concluded that Munchee had primed such expectations through its marketing efforts.
While this new case does not eliminate the distinction between utility and security tokens, it does caution that, when deciding whether a given token is a security, the SEC will look beyond utility at the character of the instrument and base their conclusion based on the terms of the offer, the plan of distribution, and the economic inducements held out by the token issuer.
So far only the state of New York has issued any kind of regulation specifically regarding cryptocurrencies: the BitLicense. BitLicense is New York’s attempt to control cryptocurrencies within its borders by requiring cryptocurrency businesses to register and comply with several different disclosure and financial obligations. The regulation has been divisive, and many businesses have rallied against its high costs. While a few companies have applied for and received the license, most other companies have simply left the state or stopped offering services to their residents.
Regulation Abroad – The Ever-Shifting Jurisdictional Question
The United States is not the only country grappling with how best to regulate cryptocurrencies. Many cryptocurrency businesses face daunting questions regarding which jurisdictions to form and to do business in. In the end, the question is quite difficult and fact-specific, requiring communication between legal counsel in different jurisdictions and taking into account nebulous and piecemeal country-by-country regulations. It is impossible to do a detailed analysis without knowing how a country’s existing securities laws, financial regulations, and banking regulations will operate (or will be adapted to operate) with cryptocurrencies. The fact that cryptocurrency-specific regulations are still developing does little to add clarity and makes the analysis even more challenging. Yet a few global trends are noticeable:
Some notable countries, like China, and South Korea, have suspended cryptocurrencies. These countries have cited the risk of fraud and the lack of adequate oversight in suspending cryptocurrencies and their exchanges, forcing cryptocurrency companies and exchanges to relocate.
Other countries, like Japan and Australia, have adopted disclosure and regulatory measures, or have companies register with the applicable government authority. Several countries have also tried to implement disclosure or registration regulatory regimes when it comes to cryptocurrencies, but such regimes are cumbersome and expensive to fledging companies.
Cryptocurrencies as Commodities
On the other hand, Switzerland and Singapore, two of the countries at the forefront of the cryptocurrency market, have simply stated that cryptocurrencies are assets, not currency and that they will treat them as such under existing regulations.
Ultimately, cryptocurrency regulation remains in its infancy. Piecemeal regulation has already begun around the world as governments enact new regulations to control and legitimize cryptocurrencies, fold cryptocurrencies into existing regulations, or ban them outright. These splintered attempts at controlling a global phenomenon will keep the cryptocurrency market volatile, and pose a challenge to innovators, investors, and users. They will continue to work in the cryptocurrency space while pushing for legislation and regulation that will remove ambiguity and legitimize cryptocurrencies. At the same time, they must grapple with the possibility that new regulations may be confusing, detrimental, or have negative inadvertent effects.
This article was previously posted on Upcounsel.com
Written by Gary Ross
About the Author:
Experienced corporate & securities attorney is eager to help you and your business reach its goals. My services range from fund formation and capital raising (e.g. Reg D offerings, crowdfunding) to contract negotiation and compliance with securities and other regulations. I have extensive experience with cryptocurrency and non-U.S. companies.
Prior to co-founding my firm, I worked in the law firms of Sidley Austin, Alston & Bird, and Holland & Knight. From 2009 to 2012, I served in the U.S. Department of the Treasury, where I oversaw financial agents engaged by the Treasury to provide asset management and other services relating to the Troubled Asset Relief Program (TARP).