CRYPTO ASSETS NEWSLETTER–OCTOBER 2019
On October 15, 2019 the Securities and Commodities Authority of the UAE published the draft regulations concerning crypto assets, for public consultation and comment, with the aim to gather feedback from the industry players (“Draft Regulations”). The Regulations are drafted to govern all aspects of the Crypto Assets industry within the UAE, ranging from token issuance requirements, to trading and safekeeping practices, with emphasis on protecting investor interests through stringent compliance with financial crime prevention measures, crypto-asset sake-keeping standards, information security controls, technology governance norms and the regulation of conduct of business requirements for all market intermediaries. In this month’s newsletter, we cover only the concepts introduced by the Draft Regulations, which are niche and have been excluded, disregarded or possibly missed by many other Regulators around the world. Please also note that: this Newsletter does not replicate/reproduce the comments and opinions shared by Team KARM with SCA during the consultation period and is merely intended to be a source of information for our readers.
THE DRAFT REGULATIONS
One of the most intriguing contributions of the Draft Regulations is the introduction of the concept of ‘Crypto Fundraising Platforms’. As per the Draft Regulations, a Crypto Fundraising Platform is “an electronic platform accessible online through which a facility is available for persons to commit funds (including fiat currency and other Crypto Assets) to subscribe for Crypto Assets, including where such facility provides account details of a third-party institution (irrespective of its jurisdiction) to receive such funds and where such funds are raised in the form of donations.” This definition appears to cover all platforms which would permit ‘committing’ of funds for ‘subscription’ of crypto assets (including that of security tokens). It is intriguing to see that not only subscription, but the possibility of regulating the platforms which facilitate contributions which do not yield any returns or profit entitlement to the owners of Crypto Assets committing funds, are also covered by the definition. The applicant for a license must be a corporate person in one of the forms prescribed in the existing custody regulations or may be: offering persons of Crypto Assets, where the scope of the proposed Crypto Fundraising Platform is limited to being in respect of the relevant Crypto Assets; or a person authorized to operate a Crypto Asset Exchange.Crypto Asset Exchange
This is possibly one of the most unique definitions of the Crypto Asset Exchanges introduced by a Regulator. The Draft Regulations define Crypto Assets Exchange as: “a platform or facility for the trading, conversion and/or exchange of Crypto Assets in return for other Crypto Assets, fiat currency, Securities and/or Commodities, which applies non-discretionary trading and/or order matching rules, or which brings potential buyers and sellers together (regardless of whether any resulting transaction is executed on the platform), or which is deemed to be a Crypto Asset Exchange and is not otherwise excluded from being a Crypto Asset Exchange under the Draft Regulations and is approved or licensed as a Crypto Fundraising Platform.” This gives rise to a
possibility to include conversion to securities or commodities through a single exchange. Internationally, there has been very limited development on a single regulated exchange for trading of all types of assets, securities and commodities. The dynamics of such an exchange would be intriguing to see, when such one comes into play.
In accordance with the Draft Regulations, the Crypto Assets may be listed on an exchange which permits the offering to be made only to Qualified Investors (as defined in the Draft Regulations), unless otherwise approved by the Regulator. Similarly, for Security Tokens: while most Regulators around the globe have taken a retrofitted approach to regulate the offering by way of existing securities regulations, the SCA has gone into detail in providing the offering mechanism. Further, the Security Tokens may only be offered by public joint stock company, unless otherwise permitted; and only to an entity incorporated in the mainland or in a financial free zone, within UAE. It is further stipulated that if the offer is being made to Qualified Investor, only a filing in accordance with the Draft Regulations is to be undertaken. Further, we note that a discretion to approve alternate forms of entities to undertake security token issuance is considered, however the exact requirements are yet to be seen.
The UAE’s SCA’s Draft Regulations come at a time when there is a dire need of regulatory clarity in the crypto space. From the outset, the Draft Regulations touch upon multiple concepts in the crypto asset space which deserve regulation. It will, however, be interesting to see the interplay of existing regulations with the introduction of the SCA’s regulations, which may change the dynamics of the UAE crypto market altogether. In either case, a favorable regulation is always welcomed.