Asic cryptocurrency financial product

ASIC has indicated that, whilst crypto-assets offered under an ICO are unlikely to be an NCP facility, the ICO itself may be an NCP facility if it includes an arrangement that allows for payments to be made in this form of value to a number of payees or payments to be started in this form and then converted to fiat currency in order to complete the payment.

This authorisation will allow AFS licensees to operate only the specific crypto-asset registered investment managed scheme named on their AFS licence. This broader authorisation will allow an AFS licensee to operate multiple crypto-asset schemes without the need to vary its licence for each scheme.

Disclosure requirements in connection with crypto-assets Subject to certain exemptions, all primary offers and all off-market secondary offers of securities in a body held by a controller of that body require disclosures to be made to potential investors. These disclosures are required to be made in the form of a disclosure document that meets the requirements set out under Part 6D. Division 2 of Part 7. Section D of the Corporations Act provides that a PDS must contain information that a person would reasonably require for the purpose of making a decision, as a retail client, whether to acquire the product.

This information includes, among other things, the significant characteristics or features of the product and the significant risks associated with holding the product. INFO identifies a number of risks that the issuers of products which involve crypto-assets may wish to incorporate into disclosure documents.

These risks include: Market Risk: There is a risk that crypto-assets could have little to no value in the future due to the highly volatile investment performance of different types of crypto-assets historically. Pricing Risk: Pricing risk due to, in some cases, the difficult nature of accurately valuing certain types of crypto-assets as a result of their nature of trading.

Custody Risk: Risk that crypto-assets may become inaccessible or accessed by unauthorised third parties due to access keys becoming lost or compromised. Classification of a crypto-asset trading platform as a financial market To operate a financial market in Australia, section A of the Corporations Act provides that a person must hold an Australian market licence, unless an exemption applies.

Subsection A 1 of the Corporations Act provides that a person will be considered to be operating a financial market if they operate a facility through which: offers to acquire or dispose of financial products are regularly made or accepted; or offers or invitations are regularly made to acquire or dispose of financial products that are intended to result or may reasonably be expected to result, directly or indirectly, in offers being made to acquire or dispose of financial products or the acceptance of such offers.

INFO states that, in situations involving crypto-assets that are a financial product, any platform that enables consumers to buy or be issued or sell crypto-assets may require the platform operator to hold an Australian market licence or rely on an exemption. The Bragg Report may lead to greater clarity and guidance being provided to entities that participate in the crypto-asset industry.

It makes 12 recommendations in connection with the regulation of cryptocurrencies and other digital assets in Australia. The case alleges BPS claimed its self-issued cryptocurrency Qoin could be swapped for Australian dollars through other exchanges, and suggested the Qoin wallet and company was regulated.

Advertisement While the case involves a specific set of facts, ASIC said it should serve as a warning to all crypto issuers that the commission is closely monitoring disclosures in the market, and called on the federal government to progress specific crypto legislation. ASIC alleges BPS Financial sold Qoin to more than 79, investors who were misled when they were told they could be confident they could trade Qoin on other exchanges, for other crypto assets or for Australian dollars, when allegedly they could not.

Second crypto action The regulator also alleges the company made representations that Qoin could be used to buy goods and services from a growing number of merchants, when the number was falling. It is the second ASIC action in as many weeks. The commission last week imposed interim stop orders preventing Holon Investments Australia from offering or distributing three crypto funds to retail investors because of non-compliant target market determinations.

No timeline for the work was offered. Advertisement Ms Court said the work was urgent. This sparked outrage from investors who banded together in November last year and launched a class action in the Federal Court. Around investors have joined the action, claiming they were unable to sell their Qoin holdings and the cryptocurrency was illiquid. ASIC is seeking declarations, pecuniary penalties, injunctions and adverse publicity orders from the court.

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