After the illusion came the disenchantment. While the ICO market is far from being dead, the awakening of investors to the realities of the market, coupled with regulatory enforcement, has changed the dynamics of the market. The amount raised via ICOs in the second half of 2018, at US$3.9bn is less than a third of the value raised during the first six month of the same year, and still below the same period in the previous year. For the market to recover from this malaise, regulatory clarification and investor protection are much needed.
The development of digital assets posed a clear challenge to regulators across the globe, which explains why the market has been able to develop for some time without a clear framework. Regulators had to find the right balance between providing a sound regulatory framework and limiting the barriers to technological innovation on the other. As stated by the chair of the European Banking Authority, Andrea Enria: “We considered allowing ICOs to develop without a set of specific regulations, but this is not working as expected.”
Acknowledging the numerous issues outlined previously, it was necessary for regulators to enforce regulations and to make it clear that the party was over. On both sides of the Atlantic, the SEC and ESMA, respectively, are now cognizant of the fact that the vast majority of ICOs, apart from “true” utility tokens, are de facto securities and should therefore be regulated as such, regardless of their issuance mechanism (e.g., certificates vs. blockchain based). The SEC is now requiring that tokens issued through ICOs should be registered as securities under Section 12(g) of the Securities Exchange Act of 1934 ("Exchange Act"). This evolution will ensure that that ICO investors receive the type of information they would have received had these issuers complied with the registration provisions of the Securities Act of 1933 ("Securities Act"). By treating tokens like securities, the SEC is providing a far greater guarantee when it comes to investor information. In line with this clarification, on November 2018, the SEC issued settled orders against AirFox and Paragon in connection with their unregistered offerings of tokens.
In Europe, ESMA is following a similar approach, and considers that existing securities regulations such as MiFID II, The Prospectus Directive, and The Transparency Directive should apply to ICOs unless an exemption is granted by a regulator.
But this regulatory clarification does not only impact ICO issuers. As soon as tokens offered for speculative investment become viewed as equivalent to securities, a whole set of financial regulations starts to apply to digital asset market participants. In the US, digital asset investment funds must comply with the Investment Company Act of 1940 ("Investment Company Act") that establishes a registration and regulatory framework for pooled vehicles that invest in securities. Digital asset exchanges must now register with the SEC as a national securities exchange, unless granted exemption, and follow similar reporting and monitoring requirements as traditional securities exchanges. In Europe, MiFID II, the Market Abuse Directive, the Short Selling Regulation, the Central Securities Depositories Regulation will apply as well. After some period of uncertainty, regulators in the US and Europe came to the conclusion that tokens issued for investment or speculation should, for the vast majority, be treated as securities, and therefore comply with the existing regulatory framework that provides sound investor protection and enforces fair market practices. However, by doing so, do they run the risk of killing innovation in capital markets? This is something they were keen to avoid.
ICOs have flourished on the back of uncertain regulations. Now that regulators have made their case clear that tokens should be treated as securities, they have removed the regulatory loophole, without eliminating the tokenization principle. This is where the Securities Token Offering (STO) concept is emerging: tokenizing existing asset classes under the current regulatory framework. The idea is to leverage blockchain technology and infrastructure to deliver “productive” innovation, to improve the functioning of market infrastructure in illiquid assets such as real estate, private markets, intellectual property, etc. This evolution could deliver a number of benefits to market participants:
The industry is only starting its journey on the use of blockchain technology and tokenization of assets in capital markets, but some important lessons have been learned in the past two years which have helped to reset the course of the market. Tokenization should be focused on efficiency and productivity gains for the industry which are numerous, rather than “easy money.”
The views expressed herein are those of the authors only and may not reflect the views of BNY Mellon. This does not constitute Asset Servicing advice, or any other business or legal advice, and it should not be relied upon as such.
©2019 The Bank of New York Mellon Corporation.