Many governments and regulators in different countries around the world have published guidelines or established their respective regulatory frameworks for cryptocurrencies and initial coin offerings (“ICOs”), despite of the general drop in cryptocurrency value in the first quarter of 2018, known as the “Great Crypto Crash”.
Regulators in Southeast Asian countries have taken a great interest in the regulation of the cryptocurrency industry. Regulators in Singapore, Indonesia, Malaysia, Thailand and the Philippines have issued guidelines and new regulations in recent months.
The MAS Guide highlights that any offer of digital tokens that make up capital market products, such as digital tokens representing equity in a corporation or a debenture of the issuer, or that constitute a unit in a collective investment scheme (“CIS“), will have to obey the requirements under the Securities and Futures Act (“SFA“). MAS also clarified that the ability for a digital token to be traded on the secondary market alone does not result in a digital token being construed as a capital markets product under the SFA.
Operators of digital token trading platforms in Singapore which form securities or futures contracts, have to be approved by MAS as an approved exchange or recognized by MAS as a recognized market operator (“RMO”) under the SFA, unless otherwise exempted.
MAS advised that digital token issuers and their legal advisors should look beyond labels and examine the characteristics of each token. MAS stated that the illustrative case studies in the MAS Guide are not fully-comprehensive and “deliberately avoid labeling using terms like “utility token” or “stablecoin”. MAS has been enforcing these laws and regulations proactively. There have issued warnings to eight digital token exchanges and two ICO issuers in Singapore not to offer or facilitate trading in digital tokens that are securities or futures contracts without MAS’ authorization.
Under the Bappebti Regulations, cryptocurrencies are regarded as trading commodities which may be legally traded on futures exchanges, provided that cryptocurrency traders in Indonesia comply with consumer protection, AML and CFT risk assessment requirements and keep the transaction data of cryptocurrencies traded on their platforms for at least five years and have a local server in Indonesia.
Physical traders of crypto assets who have carried out crypto asset trading business prior to the Bappebti Regulations coming into force and prospective physical traders of crypto assets are required to register with Bappebti and have at least Rp 100 billion in paid up capital, of which Rp 80 billion must be maintained in their accounts. In order to get approval to facilitate crypto asset transactions between customers, a physical trader of crypto assets is required to have at least Rp 1 trillion in paid up capital, of which at least Rp 80 billion must be maintained in their accounts.
Issuances of digital assets via ICOs and the trading of digital assets at digital asset exchanges in Malaysia must comply with laws issued by both Bank Negara Malaysia (“BNM”) and the Securities Commission Malaysia (“SC Malaysia”)
All digital currencies and digital tokens are prescribed as securities under securities laws pursuant to the recent Capital Markets and Services.
Following the CMSA Order 2019, SC Malaysia published its revised Guidelines on Recognized Markets, under which anyone who is interested in operating a digital asset platform is required to apply to SC Malaysia to be a recognized market operator. Under the CMSA Order 2019, digital currencies and digital tokens that are offered or traded on or through a recognized market do not comprise shares, debentures or a unit in a unit trust scheme or prescribed investments scheme under the securities laws of Malaysia.
SC Malaysia also mentioned that they will be issuing guidelines for ICOs by the end of Q1 2019, and that for the time being, ongoing ICOs should terminate all activities and return all monies or digital assets collected from investors. ICO operators are also prohibited from undertaking regulated activities such as deposit taking and banking business, foreign exchange administration activities and remittances, without the necessary authorization under financial services laws administered by BNM.
In light of these latest regulatory developments, SC Malaysia and BNM have jointly stated that they will enter into coordination arrangements to ensure compliance with laws and regulations under the purview of both regulators.
In the Philippines, the Bangko Sentral ng Pilipinas (“BSP”) provides guidelines for virtual currency exchanges. Under the BSP Circular, the BSP stated that it is aimed at regulating virtual currencies which are used for delivery of financial services, which have material impact on AML, CFT, consumer protection and financial stability. Virtual currency exchanges are required to obtain a Certificate of Registration to operate as remittance and transfer companies and are required to register with the Anti-Money Laundering Council Secretariat. Exchanges are also subject to BSP’s risk management requirements and notification and reporting requirements.
SEC Philippines has since released proposed rules to govern the registration of ICOs for public consultation. The proposed rules include a two-pronged assessment of ICOs namely (i) an initial assessment where the token issuer has the burden to prove that the tokens are not security tokens; and (ii) registration of the tokens if the tokens constitute security tokens. Such issuer of security tokens will be required to incorporate or maintain a branch office in Philippines, to amend any whitepaper in conformity with documents submitted to SEC Philippines, to submit a code audit report issued by an independent code auditor on the source code, AML framework, technology risks and security protocols, and to keep proceeds from the ICO under escrow.
With regard to monitoring of ICOs, SEC Philippines has issued a number of advisories on ICOs or companies soliciting investments from the public which do not comply with the SRC.
Under the DATO Rules, all issuers of digital assets which are formed or hold a FTSOVC license under the CEZA FTSOVCBRR to do business within the CSEZFP, are required to register their digital asset and token offerings (“DATOs”) with ABACA to be classified under one of the three tiers of DATO based on the amount they seek to raise, to list their tokens on licensed Offshore Virtual Currency Exchanges (“OVCEs”), and to ensure that they comply with the laws and regulations applicable to the offer of digital assets to persons in any jurisdiction where they consider to offer digital assets under the laws and regulations of such jurisdictions. DATOs may, depending on the tier they are classified, be required to enter into agreements with ABACA-accredited wallet providers or custodians.
Thailand is the first country in Southeast Asia to enact legislation regulating the offering of digital assets and businesses undertaking digital-asset-related activities. Under the Digital Asset Businesses Decree, the Thailand Securities and Exchange Commission (“SEC Thailand”) regulates the public offering of newly issued or existing newly issued digital tokens, which include cryptocurrencies and digital tokens but exclude securities pursuant to Thailand’s securities laws. Issuers of digital tokens are required to obtain approval from SEC Thailand and file a registration statement and draft prospectus with SEC Thailand. Issuers are also subject to ongoing duties to disclose information to investors and the public after its ICO and submit reports to SEC Thailand on their financial condition, business operations and any information which may affect the rights and interests of digital token holders or the decision-making on investment or the change in the price or value of the digital token.
Furthermore, operators of digital asset businesses, which include digital asset exchanges, digital asset brokers, digital asset dealers and other businesses relating to digital assets as prescribed by the Ministry of Finance (“MOF Thailand”) under the recommendation of SEC Thailand, are required to obtain a licence from MOF Thailand upon the recommendation of SEC Thailand. Licensees are required to comply with rules, procedures and conditions specified by SEC Thailand, including implementing security measures against electronic crime and know-your-client measures, client due diligence processes and AML and CFT measures, and segregating clients’ assets from their own.
The Bank of Thailand (“BOT”), Thailand’s central bank, issued a circular where financial institutions such as banks can issue digital tokens, provide crypto brokerage services, run crypto-related businesses and invest in cryptocurrencies through subsidiaries, although financial institutions are still banned from direct dealing with cryptocurrencies.
Recent developments in cryptocurrency regulations in Southeast Asia indicate a shift in focus towards placing the responsibility on the token issuers, token exchanges and other cryptocurrency businesses to satisfy the applicable guidelines, regulations or legislation and to ensure that they implement adequate security protocols to safeguard their clients’ digital assets, comply with AML and CFT obligations through implementing the necessary know-your-client processes, and ensure greater transparency of these businesses through regular reporting and disclosure requirements. This approach and such developments bode well for the continued development of cryptocurrencies and ICOs in Asia as a legitimate and safe payment and funding option for the near future.