Initial Coin And Token Offerings May Engage Securities Laws
Author: Rohit Khosla, Jindal Global Law School
Abstract
The topic talks about the digital market covering through and launching the Initial coin and taken by electronic means, but the reason of it is that lots of offering now are online based model which is raising the issue regarding the securities laws so my article will provide the detail input regarding this.
The world’s social media platforms and financial markets are abuzz about crypto currencies and “initial coin offerings” (ICOs). There are tales of fortunes made and dreamed to be made. We are hearing the familiar refrain, “this time is different. “The crypto currency and ICO markets have grown rapidly. These markets are local, national and international and include an ever-broadening range of products and participants. With the increase in popularity of crypto currency, many small fin-tech businesses have begun developing their own coins and tokens.
This has led to an increase in Initial Coin Offerings (“ICOs”) and Initial Token Offerings (“ITOs”) as a way to boost investor funds to develop the coins/tokens. ICOs/ITOs can trigger registration and prospectus requirements under securities laws, and intrinsically fin-tech companies should first consider applicable securities legislation. Every country in this world are making laws to deal with this issue because today era is proving to be the electronic driven world for this reason everyone is realising the initial coin and token for issuing there stock in the market online so but if there country do not have this laws then it will definitely engage in securities laws.[1]
Considerations for Main Street Investors
A number of concerns are raised regarding the crypto currency and ICO markets, including that, as they’re currently operating, there’s substantially less investor protection than in our traditional securities markets, with correspondingly greater opportunities for fraud and manipulation. Investors should understand that so far no initial coin offerings are registered with the SEC. The SEC also has to not date approved for listing and trading any exchange-traded products (such as ETFs) holding crypto currencies or other assets associated with crypto currencies.
If a person today tells you otherwise, be especially wary. We have issued investor alerts, bulletins and statements on initial coin offerings and crypto currency-related investments, including with reference to the marketing of certain offerings and investments by celebrities et al. . Please take a flash to read them. If you select to take a position in these products, please ask questions and demand clear answers. an inventory of sample questions which will be helpful is attached.[2]
As with the other sort of potential investment, if a promoter guarantees returns, if a chance sounds too good to be true, or if you’re pressured to act quickly, please exercise extreme caution and remember of the danger that your investment could also be lost. Please also recognize that these markets span national borders which significant trading may occur on systems and platforms outside the us . Your invested funds may quickly travel overseas without your knowledge. As a result, risks are often amplified, including the danger that market regulators, like the SEC, might not be ready to effectively pursue bad actors or recover funds. To learn more about these markets and their regulation, please read the “Additional Discussion of Cryptocurrencies, ICOs and Securities Regulation” section below.
Considerations for Market
I believe that initial coin offerings – whether or not they represent offerings of securities or not – are often effective ways for entrepreneurs et al. to boost funding, including for innovative projects. However, any such activity that involves an offering of securities must be amid the important disclosures, processes and other investor protections that our securities laws require. A change within the structure of a securities offering doesn’t change the elemental point that when a security is being offered, our securities laws must be followed.[4]
Said differently , replacing a standard corporate interest recorded during a central ledger with an enterprise interest recorded through a block chain entry on a distributed ledger may change the shape of the transaction, but it doesn’t change the substance.[3]I urge market professionals, including securities lawyers, accountants and consultants, to read closely the investigative report we released earlier this year (the “21(a) Report”) and review our subsequent enforcement actions.
Within the 21(a) Report, the Commission applied longstanding law principles to demonstrate that a specific token constituted an investment contract and thus was a security under our federal securities laws. Specifically, we concluded that the token offering represented an investment of cash during a common enterprise with an inexpensive expectation of profits to be derived from the entrepreneurial or managerial efforts of others.
Following the issuance of the 21(a) Report, certain market professionals have attempted to spotlight utility characteristics of their proposed initial coin offerings ( meaning of the ICO is as follow An initial coin offering (ICO) is the crypto currency industry’s equivalent to an initial public offering (IPO). A company looking to raise money to create a new coin, app, or service launches an ICO as a way to raise funds. Interested investors can buy into the offering and receive a new crypto currency token issued by the company. This token may have some utility in using the product or service the company is offering, or it may just represent a stake in the company or project)[4].
In an attempt to say that their proposed tokens or coins aren’t securities. Many of those assertions appear to elevate form over substance. Merely calling a token a “utility” token or structuring it to supply some utility doesn’t prevent the token from being a security. Tokens and offerings that incorporate features and marketing efforts that emphasize the potential for profits supported the entrepreneurial or managerial efforts of others still contain the hallmarks of a security under U.S. law.[5]
On this and other points where the appliance of experience and judgment is predicted , I think that gatekeepers et al. , including securities lawyers, accountants and consultants, got to specialise in their responsibilities. I urge you to be guided by the principal motivation for our registration, offering process and disclosure requirements: investor protection and, especially , the protection of our Main Street investors. I also caution market participants against promoting or touting the offer and sale of coins without first determining whether the securities laws apply to those actions.
Selling securities generally requires a license, and knowledge shows that excessive touting in thinly traded and volatile markets are often an indicator of “scalping,” “pump and dump” and other manipulations and frauds. Similarly, I also caution those that operate systems and platforms that effect or facilitate transactions in these products that they’ll be operating unregistered exchanges or broker-dealers that are in violation of the Securities Exchange Act of 1934.
On crypto currencies, I would like to stress two points. First, while there are crypto currencies that don’t appear to be securities, simply calling something a “currency” or a currency-based product doesn’t mean that it’s not a security. Before launching a crypto currency or a product with its value tied to at least one or more crypto currencies, its promoters must either
(1) Be ready to demonstrate that the currency or product isn’t a security or
(2) Suits applicable registration and other requirements under our securities laws.
Second, brokers, dealers and other market participants that leave payments in crypto currencies, allow customers to get crypto currencies on margin, or otherwise use crypto currencies to facilitate securities transactions should exercise particular caution, including ensuring that their crypto currency activities aren’t undermining their anti-money laundering and know-your-customer obligations.[7] As I even have stated previously, these market participants should treat payments and other transactions made in crypto currency as if cash were being handed from one party to the opposite .
Additional Discussion of Cryptocurrencies, ICOs and Securities Regulation
Crypto currencies. Speaking broadly, crypto currencies purport to be items of inherent value (similar, as an example , to cash or gold) that are designed to enable purchases, sales and other financial transactions. they’re intended to supply many of an equivalent functions as long-established currencies like the U.S. dollar, euro or Japanese yen but don’t have the backing of a government or other body. Although the planning and maintenance of crypto currencies differ, proponents of crypto currencies highlight various potential benefits and features of them, including
1) The power to form transfers without an intermediary and without geographic limitation,
(2) Finality of settlement,
(3) Lower transaction costs compared to other sorts of payment and
(4) The power to publicly verify transactions. Other often-touted features of crypto currencies include personal anonymity and therefore the absence of state regulation or oversight. Critics of crypto currencies note that these features may facilitate illicit trading and financial transactions, which a number of the purported beneficial features might not convince be available in practice.
Reference
[1]https://www.sec.gov/news/public-statement/statement-clayton- date of accessed- 29.12.2020
[3]https://www.sec.gov/news/public-statement/statement-clayton
[4]https://www.investopedia.com/terms/i/initial-coin-offering-ico.asp
[5]https://www.mondaq.com//securities/1018774/initial-coin-and-token-offerings-may-engage-securities-laws. Date accessed 29.12.2020
La Senatus Scriptors 