1、Blockchain and cryptocurrency regulation 2020, second edition Contents At Carey Olsen, we always look at the bigger picture. In the face of opportunities or challenges, our clients know that the advice and guidance they receive from us will be based on a complete understanding of their goals and obj
2、ectives combined with outstanding client service, technical excellence and commercial insight. B IGGER P ICT UR E Blockchain and cryptocurrency regulation 2019, first edition 1 BermudaBritish Virgin Islands Cayman IslandsGuernsey JerseyOur offices Bermuda blockchain and cryptocurrency regulation 202
3、0, second edition Government attitude and definition The current Bermuda government was elected in 2017 having undertaken to create new economic pillars in Bermuda, identify new opportunities for economic diversification, and seek local and overseas investment to develop new local industry and there
4、by create jobs in Bermuda. Since its election, it has enthusiastically embraced the financial technology (“fintech”) sector and the potential it offers, and has repeatedly expressed its intention for Bermuda to be a significant centre for this industry. In furtherance of this goal, the government ha
5、s implemented a comprehensive regulatory regime aimed at providing legal certainty to industry participants and ensuring that business in the sector conducted in or from Bermuda is done in a properly regulated matter, in accordance with the highest international standards. This regulatory regime is
6、described in more detail below, but, in summary: the Digital Asset Business Act comprises a regulatory framework for fintech businesses operating in or from Bermuda; and although not covered by the Digital Asset Business Act, initial coin and security token offerings are regulated under a separate r
7、egime. The government has also announced that fintech businesses wishing to set up in Bermuda are to benefit from a relaxed work permit policy, offers through the Bermuda Business Development Agency a concierge service for businesses wishing to establish operations on the island, and has signed a nu
8、mber of memoranda of understanding with fintech businesses, under which these businesses have committed to establishing operations and creating jobs in Bermuda. Although digital asset offerings and businesses are regulated in the manner described in this article, there is no legislation or other pro
9、vision of Bermuda law affording official or legal recognition of any cryptocurrency or any other digital asset, or conferring equivalent status with any fiat currency. Nor has the government or the Bermuda Monetary Authority (the “BMA”), the jurisdictions financial regulator and issuer of its nation
10、al currency, backed any cryptocurrency itself, and the Bermuda dollar remains the territorys legal tender. Cryptocurrency regulation While both the Bermuda government and the BMA are on record as being keen to embrace the potential offered by fintech, both recognise that the industry presents tremen
11、dous risk, requiring prudent regulation. Bermuda has, accordingly, led the way in introducing a regulatory framework for digital asset business and coin and token offerings. Digital Asset Business Act The Digital Asset Business Act (the “DABA”) came into force in September 2018. Since the DABAs enac
12、tment, the BMA has promulgated rules, regulations, codes of practice, statements of principles and guidance in order to supplement the DABA, with the result that the DABA operates in a similar manner to the regulatory frameworks in place for other financial services regulated by the BMA. In summary,
13、 the DABA specifies the digital asset-related activities to which it applies, imposes a licensing requirement on any person carrying on any of those activities, lays out the criteria a person must meet before it can obtain a licence, imposes (and permits the BMA to impose) certain continuing obligat
14、ions on any holder of a licence, and grants to the BMA supervisory and enforcement powers over regulated digital asset businesses. At the time of writing, the BMA was engaged in a consultation exercise with a view to amending certain provisions of the DABA to give greater clarity to certain sections
15、 and to make other changes that are intended to facilitate more effective administration of its provisions. Scope of the DABA The DABA applies to any entity incorporated or formed in Bermuda and carrying on digital asset business (irrespective of the location from which the activity is carried out)
16、and to any entity incorporated or formed outside of Bermuda and carrying on digital asset business in or from within Bermuda. The term “digital asset” in the legislation is defined widely enough to capture cryptocurrencies, representations of debt or equity in the promoter, representations of other
17、rights associated with such assets, and other representations of value that are intended to provide access to an application or service or product by means of distributed ledger technology. “Digital asset business”, for the purposes of the DABA, is the provision of the following activities to the ge
18、neral public as a business: Issuing, selling or redeeming virtual coins, tokens or any other form of digital asset This is intended to regulate any business providing these services to other businesses or to individuals. It does not include initial coin offerings or security token offerings (collect
19、ively, “ICOs”) to fund the issuers or promoters own business or project. Instead, ICOs are regulated under a separate regime, on which see below. Blockchain and cryptocurrency regulation 2019, first edition 3 Licensing requirement The DABA requires persons carrying on digital asset business to obtai
20、n a licence before doing so, unless that person is subject to an exemption order issued by the Minister of Finance. At the time of writing, the Minister had not issued or proposed any exemption orders. Two classes of licence are available for applicants: The Class M licence is a restricted form of “
21、sandbox” licence, with modified requirements and certain restrictions, and valid for a specified period, the duration of which will be determined by the BMA on a case-by-case basis. Following the expiry of this specified period, it is generally expected that the licensee will either have to apply fo
22、r a Class F Licence (as described in further detail below) or cease carrying on business, although the BMA will have discretion to extend the specified period. The Class F licence is a full licence not subject to any specified period, although it may still be subject to restrictions the BMA may deem
23、 appropriate in any given case. The intention behind this tiered licensing regime is to allow start-ups engaging in digital asset business to do so in a properly supervised regulatory environment, and to engage in proof of concept and develop some sort of track record before obtaining a full licence
24、. The restrictions to which a licensee will be subject will depend on the business model of the prospective licensee (and the risks associated with it), but will almost invariably include an obligation to disclose to prospective customers the fact that the licensee holds a Class M licence and certai
25、n limitations on the volume of business the licensee is permitted to conduct, along with other restrictions as the BMA may deem necessary or appropriate on a case- by-case basis. A prospective licensee may not necessarily receive the licence for which it applies: an applicant for a Class F licence m
26、ay receive a Class M licence if the BMA decides that a Class M licence would be more appropriate in the circumstances. A licence will further specify the category (or categories) of digital asset business in which the licensee is permitted to engage. Carrying on digital asset business without a lice
27、nce is a criminal offence punishable by a fine of up to US$250,000, imprisonment for a term of up to five years, or both. Operating as a payment service provider business utilising digital assets, which includes the provision of services for the transfer of funds The term “payment service provider”
28、is used globally in anti- money laundering and anti-terrorist financing (“AML/ATF”) laws, regulations and guidance, and is defined in Bermudas Proceeds of Crime (Anti-Money Laundering and Anti- Terrorist Financing) Amendment Regulations 2010 as “a person whose business includes the provision of serv
29、ices for the transfer of funds”. The aim here is to ensure that businesses involved in the transfer of digital assets fall within the DABAs ambit. Operating as an electronic exchange This category captures online exchanges allowing customers to buy and sell digital assets, whether payments are made
30、in fiat currency, bank credit or in another form of digital asset. Exchanges facilitating the offer of new coins or tokens through ICOs are also caught. Providing custodial wallet services This covers any business whose services include storing or maintaining digital assets or a virtual wallet on be
31、half of a client. Operating as a digital asset services vendor This category regulates a person that, under an agreement as part of its business, can undertake a digital asset transaction on behalf of another person or has power of attorney over another persons digital asset, or a person who operate
32、s as a market-maker for digital assets. It is intended to capture any other business providing specific digital asset-related services to the public, such as operating as a custodian of digital assets. In addition to the above categories, the DABA includes an option for the Minister of Finance, afte
33、r consultation with the BMA, to be able to add new categories or to amend, suspend or delete any of the categories listed above by order. The DABA specifically provides that the following activities shall not constitute digital asset business: contributing connectivity software or computing power to
34、 a decentralised digital asset, or to a protocol governing transfer of the digital representation of value (this category exempts mining from the DABAs scope); providing data storage or security services for a digital asset business, so long as the enterprise is not otherwise engaged in digital asse
35、t business activity on behalf of other persons; and the provision of any digital asset business activity by an undertaking solely for the purpose of its business operations or the business operations of any of its subsidiaries. 4 Blockchain and cryptocurrency regulation 2019, first edition Criteria
36、to be met by licensees The DABA provides that the BMA may not issue any licence unless it is satisfied that the applicant fulfils certain minimum criteria addressing the fitness and propriety of directors and officers, ensuring business is conducted in a prudent manner, the integrity and skill of th
37、e businesss management, and standards of corporate governance observed by the (prospective) licensee. This is consistent with the position under other regulatory laws applicable to other sectors and is intended to ensure the BMA maintains high standards for the conduct of regulated business. The BMA
38、 has also published a code of practice detailing requirements as to, inter alia, governance, risk management and internal controls applicable to licensees. The BMA recognises, however, that licensees have varying risk profiles arising from the nature, scale and complexity of the business, so assesse
39、s a licensees compliance with this code in a proportionate manner relative to the businesss nature, scale and complexity. The DABA requires licensees to notify the BMA upon changes in directors or officers, and the BMA has powers to, inter alia, object to and prevent new or increased ownership of sh
40、areholder controllers and the power to remove controllers, directors and officers who are no longer fit and proper to carry on their role. Continuing obligations of licence holders Persons holding a licence issued under the DABA are subject to several ongoing obligations. Client disclosure rules: th
41、e BMA has used powers conferred to it under the DABA to promulgate the Digital Asset Business (Client Disclosure) Rules 2018 in order to mitigate the high degree of risk for consumers owing to the highly speculative and volatile nature of digital assets. These rules require licensees, before enterin
42、g into any business relationship with a customer, to disclose to that customer: the class of licence it holds; a schedule of its fees and the manner in which fees will be calculated if not set in advance; whether it has insurance against loss of customer assets arising from theft (including cyberthe
43、ft); the extent to which a transfer or exchange of digital assets is irrevocable and any exceptions; governance or voting rights regarding client assets if the licensee is to hold client assets; the extent to which it will be liable for an unauthorised, mistaken or accidental transfer or exchange; a
44、nd sundry other matters. The rules also oblige licensees to confirm certain information regarding transactions with clients at the conclusion of each such transaction. Cybersecurity Rules: alongside the client disclosure rules described above, the BMA has promulgated the Digital Asset Business (Cybe
45、rsecurity) Rules 2018 (the “Cybersecurity Rules”). Under the Cybersecurity Rules, licensees must file an annual cybersecurity report prepared by its chief information security officer assessing the availability, functionality and integrity of its electronic systems, any identified cyber-risk arising
46、 from any digital asset business carried on or to be carried on by the licensee, and the cybersecurity programme implemented and proposals for steps for the redress of any inadequacies identified. The cybersecurity programme itself must include (but is not limited to) the following audit functions:
47、penetration testing of its electronic systems and vulnerability assessment of those systems conducted at least on a quarterly basis; and audit trail systems that: track and maintain data that allows for the complete and accurate reconstruction of all financial transactions and accounting; protect th
48、e integrity of data stored and maintained as a part of the audit trail from alteration or tampering; protect the integrity of hardware from alteration or tampering, including by limiting electronic and physical access permissions to hardware and maintaining logs of physical access to hardware that a
49、llows for event reconstruction; log system events including but not limited to access and alterations made to the audit trail systems, and cybersecurity events; and maintain records produced as part of the audit trail. Licensees must engage a qualified independent party to audit its systems and provide a written opinion to the BMA that the cybersecurity programme and controls are suitably designed and operative effectively to meet the requirements of the Cybersecurity Rules and applicable codes of practice. Custody and protection of consumer assets: licensees hol
sgpjbg002
工作日 8:30 - 17:30
会员动态：
报告分类
新质生产力
ChatGPT
新能源汽车
大模型
Sora
机器人
微短剧
芯片
薪酬
白皮书
低空经济
数据要素
创新药
人工智能
AI产业
信息科技
互联网
消费经济
汽车交通
电商零售
传媒娱乐
医药健康
投资金融
能源环境
地产建筑
传统产业
英文报告
其它
扫码登录
手机快捷登录
账号登录
