Initial Coin/Token Offerings ("ICOs") are becoming an increasingly popular means of fundraising for new projects and utilise blockchain technology to do so. The typical example of an ICO is where a project (usually operated through an entity) seeks investment in the form of fiat or cryptocurrency and, in exchange, offers a token connected with the project. If the project fails to reach its fundraising target, it does not launch and the commitments are returned to investors. For instance, an author could use an ICO to fund the publishing of their book and each token entitles the holder to a copy of the book when published. These tokens can then also be traded.
Whilst no specific legislation has been passed by the Cayman Islands Government in connection with ICOs and cryptocurrencies, it would be incorrect to say that ICOs are "unregulated". The fact is that some of the existing legislation in the Cayman Islands can, and in certain circumstances will, be applicable. We have listed the most relevant legal considerations when structuring an ICO in the Cayman Islands below. We suspect that more-specific legislation will eventually be created although, for the time being, the regulators and lawmakers in the Cayman Islands are keen to avoid rushing through any legislation before the potential benefits and pitfalls of blockchain technology, cryptocurrencies and ICOs are properly understood.
The Securities Investment Business Law (2015 Revision) ("SIBL")
SIBL is the Cayman Islands' primary legislation relating to the regulation of investments in 'securities' and associated businesses. Essentially, no person shall carry on (or purport to carry on) securities investments business unless that person is the holder of an appropriate licence or is excluded from the requirement to hold a licence.
The term 'securities' is defined in SIBL by reference to a list of particular types of security (including shares, stocks, partnership interests, instruments acknowledging indebtedness, options, futures etc.). This definition is narrower than that used in the US Securities Act of 1933 as there is no corresponding concept of an 'investment contract'. There is instead just a specific list of types of security which does not specifically refer to a cryptocurrency or token.
As the definitions of 'securities' and 'securities investment business' are linked (i.e. securities investment business includes dealing in, managing and advising on securities), it is generally accepted that an ICO should fall outside of SIBL. As always, this depends on the particular circumstances of the ICO and so specialist advice should be taken on this point at the outset.
Anti-Money Laundering ("AML") Laws and Regulations
The Cayman Islands has established a comprehensive and robust AML regime which is comprised of the following specific laws and regulations:
- The Proceeds of Crime Law (2017 Revision) (the "PCL");
- The Anti-Money Laundering Regulations, 2017 (the "AML Regulations"); and
- The Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands.
How do these apply to an ICO that is being structured using a Cayman Islands company? The PCL is of general application to all Cayman Islands entities and requires them to take certain steps in the prevention of money-laundering and terrorist financing, including the imposition of various penalties for non-compliance.
The AML Regulations are perhaps of potentially greater practical significance to an ICO by virtue of their wide application and the requirements for compliance. The AML Regulations apply to those who conduct 'relevant financial business' which is defined by reference to a specific list of activities. The most obviously relevant activities to an ICO would be (i) acceptance of funds and other repayable funds from the public, (ii) issuing and managing means of payment, (iii) money broking and (iv) money or value transfer services. If an ICO issuer's activities fall within this definition, it would need to establish written AML procedures, conduct identification verification checks and also appoint specific officers (Compliance Officer, Money Laundering Reporting Officer and Deputy Money Laundering Reporting Officer) among other things. It is therefore imperative that legal advice be sought as to whether the ICO in question constitutes 'relevant financial business' and, if so, how compliance with the AML Regulations is achieved. In particular, advice may be required as to how best to conduct identification verification checks when the nature of the cryptocurrencies being paid in respect of the ICO are, by their very nature, encrypted.
Money Services Law (2010 Revision) (the "MSL")
The MSL regulates 'money services business' in the Cayman Islands. This would include businesses which provide currency exchange and money transmission services. In order for an entity to conduct money services business, it would need to be appropriately licensed by the Cayman Islands Monetary Authority. It is, in our view, generally unlikely that the MSL will apply to an ICO although it will of course depend on the specifics of the offering. Again, specific legal advice should be sought on this point before an ICO is commenced.
Automatic Exchange of Information ("AEOI")
The Cayman Islands has entered into a Model 1B (i.e. non-reciprocal) intergovernmental agreement with the United States in connection with the implementation of the Foreign Account Tax Compliance Act ("FATCA") and has also entered into a Multilateral Competent Authority Agreement to implement the Organization for Economic Cooperation and Development's Global Standard for Automatic Exchange of Financial Account Information - Common Reporting Standard (the "CRS"). A detailed summary of the implications of FATCA and CRS is beyond the scope of this note but let it suffice to say that an entity which is considered a 'financial institution' under these regimes would be under an obligation to identify and report on its account holders. Prospective ICO issuers should seek specific legal advice as to their status under FATCA and CRS to ensure that they are operating in compliance with such laws.
Register of Beneficial Ownership
All Cayman Islands companies are now required to establish registers of their beneficial owners (generally speaking those who directly or indirectly hold more than 25% of the interests in the entity or who otherwise control it). Typically, we would not expect token holders to be considered registrable persons for these purposes although, of course, it will depend on the nature of the tokens and the offering and will need to be considered at the outset.
Electronic Transactions Law (2003 Revision) (the "ET Law")
The ET Law is the Cayman Islands' primary legislation relating to the conclusion of transactions/contracts electronically. Given the nature of ICOs, the ET Law is therefore of potentially critical significance when establishing the terms and conditions of the ICO (whether in the form of purchase agreements or otherwise) and how contracts are concluded. All terms and conditions governing the ICO, as well as the ICO mechanics generally, should be considered in the context of the ET Law to ensure compliance.
How can we help?
We have seen a significant increase in activity in the cryptocurrency and ICO sectors and are well placed to provide advice on a prospective ICO.
In addition to the incorporation of a Cayman Islands exempted company or limited liability company (through which the ICO would be operated), we can provide a full 'health check' service pursuant to which we would review the terms of the ICO against the Cayman Islands legislation referenced above and provide you with certainty as to which laws and regulations apply and how to operate in compliance with them.
Read the PDF on Initial Coin Offerings in the Cayman Islands.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.