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The Regulation of Initial Coin Offerings in China: Problems, Prognoses and Prospects

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Abstract

As a new form of the FinTech industry, initial coin offerings (ICOs) underwent a period of explosive growth in China since the second half of 2016 and were banned in September 2017. However, the outright ban on ICOs may hamper revolutionary technological developments and dampen the growth of this potentially beneficial market. In quest of a solution to meet the regulatory challenges rather than completely stifling the innovation, a comparative analysis has been conducted in some advanced economies, including the US, Canada, Australia, Singapore, Hong Kong, the UK and the EU in order to propose a regulatory framework for ICOs in China. After a thorough analysis of relevant experiences and regulatory measures in overseas jurisdictions, this paper provides a non-exhaustive classification of the legal status of ICOs, namely pre-sale of products or services, offering of shares, issue of debentures, issue of derivatives, collective investment schemes and crowdfunding, as well as a possible regulatory reform of the current ICO ban in China. It is then concluded that except for ICOs that can be regarded as pre-sale of products or services, the other five types of ICOs are highly likely to be considered as financial securities and thus should be subject to securities laws.

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Notes

  1. Shin (2017).

  2. CoinSchedule, Cryptocurrency ICO Stats 2017, 6 March 2018, retrieved 9 March 2018, https://www.coinschedule.com/stats.html?year=2017.

  3. For the purposes of this paper, cryptocurrency, digital currency, digital coin, digital token, virtual currency, etc. have the same meaning and are used interchangeably. The term of virtual currency is commonly used in courts.

  4. Bhaskar et al. (2015), p 529.

  5. Nakamoto (2008).

  6. Luxembourg House of Financial Technology (LHoFT) and Stellar Development Foundation (SDF) (2017).

  7. Iwamura et al. (2014).

  8. Tapscott and Tapscott (2016).

  9. Franco (2015).

  10. National Committee of Experts on Internet Financial Security Technology (2017).

  11. FINET.HK (2017).

  12. Guanyu Fangfan Bitebi Fengxian de Tongzhi (关于防范比特币风险的通知) [Circular on Prevention of Risks Associated with Bitcoin] (promulgated on 5 December 2013 by the People’s Bank of China and others).

  13. Ibid.

  14. Ibid.

  15. Guanyu Jinyibu Jiaqiang Dui Shexian Feifa Jizi Zijin Jiaoyi Jiance Yujing Gongzuo de Zhidao Yijian (关于进一步加强对涉嫌非法集资资金交易监测预警工作的指导意见(银发【2016】201号)) [Directive Opinion on Further Strengthening the Monitoring and Early Warning of Financial Transactions Involving Possible Illegal Fundraising] (promulgated in September 2016 by the People’s Bank of China).

  16. Ibid.

  17. Riggins (2017).

  18. Chuzhi Feifa Jizi Tiaoli (Zhengqiu Yijiangao) (处置非法集资条例(征求意见稿)) [Exposure Draft of the Regulations on the Handling of Illegal Fundraising] (promulgated on 24 August 2017 by the Legislative Affairs Office of the Sate Council of the PRC, effected from 24 August 2017 to 24 September 2017).

  19. Ibid.

  20. Ibid.

  21. Guanyu Dui Daibi Faxing Rongzi Kaizhan Qingli Zhengdun Gongzuo de Tongzhi (关于对代币发行融资开展清理整顿工作的通知) [Notification Concerning the Undertaking of Clean-up and Rectification Work for ICO] (promulgated on 2 September 2017 by the Hulianwang Jinrong Fengxian Zhuanxiang Zhengzhi Gongzuo Lingdao Xiaozu Bangongshi (互联网金融风险专项整治工作领导小组办公室) [Internet Financial Risk Special Rectification Work Leading Group Office]).

  22. Ibid. See also China Banking News (2017), ‘China Declares Initial Coin Offerings Illegal’, http://www.chinabankingnews.com/2017/09/04/china-declares-initial-coin-offerings-illegal/ (accessed 8 November 2017).

  23. Guanyu Fangfan Daibi Faxing Rongzi Fengxian de Gonggao (关于防范代币发行融资风险的公告) [Notice on Preventing Risks Associated with ICOs] (promulgated on 4 September 2017 by the People’s Bank of China and others).

  24. Ibid., para. 1.

  25. Ibid., para. 1.

  26. Ibid.

  27. Art. 176, Zhonghua Renmin Gongheguo Xingfa (中华人民共和国刑法) [Criminal Law of the PRC] (adopted on 1 July 1979 at the Fifth National People’s Congress; revised on 14 March 1997 at the Eighth National People’s Congress; promulgated on 14 March 1997 by Order No. 83 of the President of the PRC and effected from 1 October 1997). See also the four requirements in Art. 1, Gaunyu Feifa Jizi Xingshi Anjian Juti Yingyong Falv Ruogan Wenti de Jieshi (Fa Shi [2010] No. 18) (关于非法集资刑事案件具体应用法律若干问题的解释(法释【2010】18号)) [Judicial Interpretations on Several Issues Concerning Implementation of Laws in Trial of Criminal Cases Relating Illegal Fundraising] (promulgated on 13 December 2010 by the Supreme People’s Court of China and effected from 4 January 2011).

  28. See the main page of TokenCapital, https://tokencapital.io/ which has been closed down.

  29. Allcoin (2017).

  30. Deng and Vigna (2017).

  31. Lou (2017).

  32. Guanyu Kaizhan Wei Feifa Xuni Huobi Jiaoyi Tigong Zhifu Fuwu Zicha Zhenggai Gongzuo de Tongzhi (关于开展为非法虚拟货币交易提供支付服务自查整改工作的通知) [Notification on Carrying Out Self-examination and Rectification Reform Work on Providing Payment Services for Illegal Virtual Currency Transactions] (promulgated on 17 January 2018 by the Payment and Settlement Office of the PBOC’s Business Administration Department).

  33. Ibid.

  34. Lou (2017).

  35. Churilov (2016).

  36. Nica et al. (2017).

  37. Nakamoto (2008).

  38. Ibid.

  39. Tapscott and Tapscott (2016).

  40. Nakamoto (2008).

  41. Bonaiuti (2016).

  42. Nakamoto (2008).

  43. Kastelein (2017).

  44. Ibid.

  45. Docket No. 15-1815 CA (2nd Cir. 31 May 2017).

  46. Ibid.

  47. See for example, The DAO Attack—a hacker stole $US55 million of Ether, a full story at Bloomberg, Leising (2017).

  48. The Ransomware attack in 2017, which encrypts victims’ files and demands a ransom payment through Bitcoins to decrypt them.

  49. Bonneau et al. (2015).

  50. Evans (2014).

  51. Clayton (2017).

  52. Yermack (2015), pp 31-43.

  53. Nakamoto (2008).

  54. ETCDEV TEAM (2017).

  55. ECIP (2017).

  56. FINET.HK (2017).

  57. House et al. (2017).

  58. Mckinsey Global Institute (2017).

  59. Xi (2017).

  60. NEO (2017).

  61. Levenson (2017).

  62. No. F14-2923 (11th Cir. 2016).

  63. Ibid.

  64. Ibid.

  65. Internal Revenue Service, Notice 2014-21, US 2014.

  66. Ibid. For a more comprehensive description of convertible virtual currencies, see Financial Crimes Enforcement Network (FinCEN), Guidance on the Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtual Currencies (FIN-2013-G001, 18 March 2013).

  67. US SEC, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The Dao, Release No. 81207, US 2017.

  68. Ibid.

  69. Ibid.

  70. Section 2(a)(1), Securities Act of 1933 (enacted on 27 March 1933 by the US Congress); the Securities Exchange Act of 1934 contains a definition of security virtually identical to that contained in the Securities Act of 1933.

  71. 328 US 293, 301 (1946).

  72. Ibid.; SEC v. Edwards, 540 US 389, 393 (2004).

  73. No. 4: 13-CV-416, 2014 WL.

  74. Ibid.

  75. Stephen (1990), pp 125–138.

  76. SEC v. Howey, 328 US 293, 301 (1946); Marine Bank v. Weaver, 455 US 551 (1982); Reves v. Ernst & Young, 494 US 56, 68 (1990); SEC v. Edwards, 540 US 389, 393 (2004).

  77. 494 US 56, 68 (1990).

  78. Ibid.

  79. See SEC v. Edwards, 540 US 389, 393 (2004); US SEC, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The Dao, Release No. 81207, US 2017.

  80. See SEC v. Glenn W. Turner Enterprises, 474 F.2d 476 (1973).

  81. US SEC, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The Dao, Release No. 81207, US 2017.

  82. Ibid.

  83. Centra (2017).

  84. ‘SEC Halts Fraudulent Scheme Involving Unregistered ICO’, US SEC, 2018.

  85. ‘CFTC Orders Bitcoin Options Trading Platform Operator and its CEO to Cease Illegally Offering Bitcoin Options and to Cease Operating a Facility for Trading or Processing of Swaps without Registering’, US CFTC, 2015.

  86. Ibid.

  87. ‘CFTC Grants SEF Registration to LedgerX LLC’, US CFTC, 2017; ‘CFTC Grants DCO Registration to LedgerX LLC’, US CFTC, 2017.

  88. Ibid. See also ‘CFTC Orders Bitcoin Options Trading Platform Operator and its CEO to Cease Illegally Offering Bitcoin Options and to Cease Operating a Facility for Trading or Processing of Swaps without Registering’, US CFTC, 2015; Nakamoto (2008).

  89. See ‘CFT Charges Patrick K. McDonnell and His Company Cabbage Tech, Corp. d/b/a Coin Drop Markets with Engaging in Fraudulent Virtual Currency Scheme’, US CFTC, 2018; ‘CFTC Charges Colorado Resident Dillon Michael Dean and His Company, The Entrepreneurs Headquarters Limited, with Engaging in a Bitcoin and Binary Options Fraud Scheme’, US CFTC, 2018; Reuters (2018).

  90. Ibid.

  91. ‘CFTC Charges Randall Crater, Mark Gillespie, and My Big Coin Pay, Inc. with Fraud and Misappropriation in Ongoing Virtual Currency Scam’, US CFTC 2018.

  92. ‘Press Release—SEC Halts Alleged Initial Coin Offering Scam’, US SEC, 2018.

  93. ‘Canadian Securities Regulators Outline Securities Law Requirements That May Apply to Cryptocurrency Offerings’, CSA, Toronto, 2017.

  94. Ibid.

  95. 328 US 293, 301 (1946).

  96. [1978] 2 SCR 112.

  97. ‘Canadian Securities Regulators Outline Securities Law Requirements That May Apply to Cryptocurrency Offerings’, CSA, Toronto, 2017.

  98. Pacific Coast, [1978] 2 SCR 112.

  99. Ibid.

  100. Ibid.

  101. Ibid.

  102. ‘Canadian Securities Regulators Outline Securities Law Requirements That May Apply to Cryptocurrency Offerings’, CSA, Toronto, 2017.

  103. Pacific Coast, [1978] 2 SCR 112.

  104. ASIC Information Sheet 225.

  105. Corporations Act 2001 (amended and in force on 1 January 2018).

  106. ASIC Information Sheet 225.

  107. Ibid.

  108. Corporations Act 2001, Sect. 9.

  109. ASIC Information Sheet 225.

  110. Ibid.

  111. Corporations Amendment (Crowd-Sourced Funding) Act 2017.

  112. ASIC Information Sheet 225.

  113. A Guide to Digital Token Offerings, Monetary Authority of Singapore, 2017.

  114. Ibid.

  115. Ibid.

  116. Ibid.

  117. Noonan (2017).

  118. Fintechnews Singapore (2017).

  119. Ellis (2017).

  120. See Digital Global’s main website, at https://digix.global/.

  121. Ibid.

  122. CryptoNinjas (2017).

  123. TenX (2017).

  124. Lin (2018).

  125. Statement on initial coin offerings, Securities and Futures Commission, Hong Kong, 2017.

  126. Ibid.

  127. Generally a collective investment scheme has four elements: ‘(1) it must involve an arrangement in respect of property; (2) participants do not have day-to-day control over the management of the property; (3) the property is managed as a whole by or on behalf of the person operating the arrangements, and/or the contributions of the participants and the profits or income from which payments are made them are pooled; and (4) the purpose of effect of the arrangement is for participants to participate in or receive profits, income or other returns from the acquisition or management of the property’; see also, SFC’s Statement on ICOs.

  128. Hong Kong Monetary Authority (2018).

  129. Securities and Futures Commission (2017).

  130. See Simple Token’s website, at https://sale.simpletoken.org/.

  131. See AirSwap’s website, at https://www.airswap.io/.

  132. Ibid.

  133. ‘Consumer warning about the risks of Initial Coin Offerings (“ICOs”)’, Financial Conduct Authority, UK, 2017.

  134. ‘ESMA alerts Investors to the high risks of Initial Coin Offerings (ICOs)’, European Securities and Markets Authority, EU, 2017. It lists five risks of investing in ICOs: (1) Unregulated space, vulnerable to fraud or illicit activities; (2) High risk of losing all of the invested capital; (3) Lack of exit options and extreme price volatility; (4) Inadequate information; and (5) Flaws in the technology.

  135. ‘ESMA alerts firms involved in Initial Coin Offerings (ICOs) to the need to meet relevant regulatory requirements’, ESMA, EU, 2017.

  136. Ibid.

  137. UK Financial Conduct Authority (2015).

  138. Gurrea-Martínez and León (2018) (calling this regulatory model as ‘selective control ex ante’).

  139. Buterin (2014).

  140. Ibid.

  141. State of Washington v. Altius Management, LLC, No. 14-2-12425-2 SEA 2015.

  142. Ibid.

  143. Zhonghua Renmin Gongheguo Xiaofeizhe Quanyi Baohufa (中华人民共和国消费者权益保护法) [Law of the PRC on the Protection of Consumer Rights and Interests] (adopted on 31 October 1993 at the Eighth National People’s Congress; promulgated on 31 October 1993 by Order No. 11 of the President of the PRC and effected from 1 January 1994).

  144. Zhonghua Renmin Gongheguo Hetongfa (中华人民共和国合同法) [Contract Law of the PRC] (adopted on 15 March 1999 at the Eighth National People’s Congress; promulgated on 15 March 1999 by Order No. 15 of the President of the PRC and effected from 1 October 1999).

  145. NEO (2017).

  146. Ibid.

  147. Zhonghua Renmin Gongheguo Gongsifa (中华人民共和国公司法) [Company Law of the PRC] (adopted on 29 December 1993 at the Eighth National People’s Congress; amended on 28 December 2013 at the Twelfth National People’s Congress and effected from 1 March 2014).

  148. Zhonghua Renmin Gongheguo Zhengquanfa (中华人民共和国证券法) [Securities Law of the PRC] (adopted on 29 December 1998 at the Ninth National People’s Congress; amended on 31 August 2014 at the Twelfth National People’s Congress).

  149. Schwienbacher and Larralde (2012); Mollick (2014), pp 1–16.

  150. Research Office of the Legislative Council of HKSAR (2017).

  151. Guquan Zhongchou Fengxian Zhuanxiang Zhengzhi Gongzuo Shishi Fangan (股权众筹风险专项整治工作实施方案) [Implementation Plan for Special Rectification on Risks in Equity Crowdfunding] (promulgated on 14 October 2016 by the China Securities Regulatory Commission and others).

  152. Ibid.

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Correspondence to Robin Hui Huang.

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This research was funded under a Direct Research Grant of the Chinese University of Hong Kong; research support was also received from the Centre for Asian Legal Studies and the EW Barker Center for Law & Business, Faculty of Law, National University of Singapore; the authors would also like to acknowledge the support provided under the Hong Kong Research Grants Council Theme Based Research Project ‘Enhancing Hong Kong’s Future as a Leading International Financial Centre’.

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Deng, H., Huang, R.H. & Wu, Q. The Regulation of Initial Coin Offerings in China: Problems, Prognoses and Prospects. Eur Bus Org Law Rev 19, 465–502 (2018). https://doi.org/10.1007/s40804-018-0118-2

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