[ad_1]
<div _ngcontent-c14 = "" innerhtml = "
These few days have been rich in events in the cryptographic community, especially for lawyers.
Less than a week after the staff of the Securities and Exchange Commission ("SEC") published a landmark event "Statement on "framework for the badysis of digital contracts in" investment contracts ", Announcing the publication by FinHub of an badytical report token frame ("Token Framework") and the first division focused on the sale of digital badets of the Division of Finance Corporation. letter of no action (the "TKJ non-intervention letter") (collectively, the "Token Guidelines"), US federal lawmakers introduced two ambitious bills specifically aimed at supporting the US blockchain industry: & nbsp ; the Token Taxonomy Act, 2019& nbsp; (H.R. 2144) (the "TTA") and the Digital Taxonomy Act (H.R. 2154) (the "DTA" and, with the TTA, the "Invoices").
As expected, the controversy ensued.
But as blockchain network lawyers in Twitter, LinkedIn and beyond, and badyze the implications, complications and potential limitations of Bills and Token Guidance, let's take a moment to think about its power and its efficiency. have broad bipartite support for non-security token sales. & nbsp; In the last 10 days, federal regulators and legislators may have breathed new life into a US blockchain and crypto industry that, outside of states like Wyoming, has begun to look like a space traditional financial system, especially for those who can participate.
For those who have sounded the death knell for selling non-security chips, it's time to ring the bell.
A thirst for "clarity"
Although it was apparently not programmed in response to the Token SEC directive of April 3, 2019, Congressman Warren Davidson (R-OH) public comments when introducing the bills seemed to express his disappointment with the existing directives:
"The lack of regulatory certainty in the US, combined with confusing and spasmodic SEC guidelines and an inconsistent patchwork of court rulings, means that capital and innovation are fleeing the US market for the welcoming certainty of other jurisdictions. "
Davidson's statement echoed the sentiments of many blockchain actors who have repeatedly and vocally sought out bright answers and "safe corridors" for the sale of digital tokens. & Nbsp; However, these falsely "simple" black and white results can be extremely difficult for US regulators to provide, as some key legal frameworks (such as Howey test, used to determine whether the sale of a digital badet is the sale of an investment contract and, consequently, of a security) are based on principles and intentionally involve highly individualized badyzes, based on facts and circumstances.
The initial reactions of some legislators, market players and lawyers to the Token Guidance of the SEC have been mixed. & Nbsp; Some – including this author, as will be explained in a separate article – see the very existence of the Token Framework and TKJ's non-intervention letter as significant advances for the sector and for the future of genuine sales. tokens not related to security. & Nbsp; Others complain that the Token Framework, while potentially useful as an badytical tool, represents non-binding views of SEC staff and introduces new terminology and new questions, rather than elusive "legal clarity". .
Question, however, if what some on the market really search is do not the "clarity" of the SEC's current position regarding sales of digital tokens, but rather a completely different view. & nbsp; Previous SEC guidelines, including in the form of coercive measures, cease and desist orders, a 21A investigation report and some speeches, reiterated repeatedly that virtually every sale of digital tokens was likely to constitute the sale of a title, in the absence of contrary indications. & nbsp; The Token Framework itself specifies that it complements, but does not replace, existing SEC guidelines and laws. & Nbsp; From this perspective, it should not be surprising that Token Guidance does not offer – and perhaps can not – general relief for non-security token sales.
Perhaps the real way to calm the hunger of the cryptography market is not to seek to reinterpret existing law, but to legislators to introduce New laws – as did some United States, perhaps most notably Wyoming.
The bills
Enter the Law on Taxonomy of Tokens and the Digital Taxonomy Act. & nbsp; Written by representatives Warren Davidson (R-OH-08) and & nbsp; Darren Soto (D-FL-09), respectively, bills were introduced on April 9, 2019 with the aim of "providing regulatory certainty to businesses, entrepreneurs and regulators in their country. the blockchain economy of the United States. "
Calling TTA "the key to unlock blockchain technology in America," said Congressman Davidson, "without it, the United States is giving away its innovative origins and ownership of the digital economy to Europe and Europe. 'Asia".
Indeed, some other nations, notably Switzerland, Gibraltar and Malta, have laws that are more favorable to non-security token sales. & Nbsp; As explained by Marco Santori, President and Chief Legal Officer of Blockchain.com, the UK recently proposed legislation on digital tokens that differs significantly from the existing approach in the United States.
"FCA's rejections of the SEC's "decentralization" and "functionality" tests are important not because they demonstrate that the SEC has something wrong (but that is not the case). ), but because they demonstrate the sometimes radical differences between American law and others. of the world. & nbsp; These laws often force the regulators and push them towards very different practical results. "
They can also compel entrepreneurs. & Nbsp; In this spirit, the bills seek to clarify "the many binding regulatory initiatives and decisions of states, as well as entangled judicial decisions, which have clouded the certainty of entrepreneurs and businesses using blockchain technology." & Nbsp; Some believe that this uncertainty is one of the factors behind the recent slowdown in the sale of chips, known as "Crypto Winter".
In short, the bills deliberately seek to resolve the concerns expressed by many crypto market players and their lawyers – namely, how can I comply with the law?
Michelle Gitlitz, Partner and Co-Director of the Blockchain Group at Blank Rome LLP, sees the Bills as "a significant development of the digital badet law".
"Whether you agree or disagree with the [TTA’s substance], "she says "OOur legislators have solicited feedback from the industry on the challenges faced by the digital badet economy and have attempted to resolve them. "
Gitlitz refers to a "Crypto Roundtable" of 25 September 2018 entitled "Legislating Certainty for Cryptocurrencies". hosted in Washington, by MP Davidson, a member of Congress. & nbsp; There, she and more than 80 other representatives of the major & nbsp;Wall Street& nbsp; blockchain companies and companies, discussed cryptocurrency regulations. & nbsp; Market concerns would include requests for exemption from the sale of non-security tokens, frustration with some state laws, including New York's BitLicense, and concern for legal clarity.
Invoices were written in response. & Nbsp; According to a press release that accompanies him,
[T]he [TTA] further clarify the definition of the digital token to better reflect the evolution of technology. The FTC and CFTC jurisdictions have also been cited to strengthen consumer protection. There are many positive laws regarding the regulation of cryptography, but others, such as the burdensome New York BitLicense license, have been very severe. A preemption clause has been included to ensure [TTA] provides the certainty that innovation needs to thrive. "
Although some aspects of the bills, including the definition of the "digital token" and the pre-emption provision, have generated considerable controversy, both online and offline, Gitlitz points out, "[Legislators] listened to what we had to say and tried to draft a bill to address our concerns. This should be recommended. "
Munchee and "utility tokens" again?
TTA proposes to delete the term "digital token" from the definition of "security" in the Securities Act of 1933 (as amended) and the Securities Exchange Act of 1934 (as amended), while allowing the SEC to subsequently claim "digital unit" or investment contract. & nbsp; Some like Joel Telpner, Head of FinTech Division and Blockchain at Sullivan & amp; Worcester LLP, thinks that this could inadvertently "create as much ambiguity as today."
"In particular, the provision that would require cancellation 90 days after the written notification from the SEC would create the same cloud on the market as today," said Telpner. & nbsp; "Moreover, the mere existence of such a possibility tells me that the law does not properly define the digital token and the numerical unit because, in this case, it would not be necessary to provide for a contingency for a possible ban by the SEC."
Some wonder why the Bills do not include in the definition of "digital tokens" the concept of "consumer end", which is considered by both Token Guidance and H. B. of Wyoming. 62. Others suggest that such an omission was intentional, perhaps requested by some market players.
Preemption reduces both ways
While many crypto enthusiasts may bid farewell to the BitLicense license, Caitlin Long, the coalition behind the Wyoming Blockchain Coalition, says that, as it stands, the TTA's preemption clause would also nullify some aspects of Wyoming's revolutionary legislation, which consumes a lot, HB 62
Per Long, in its current form, the TTA does not prejudge not only onerous or unclear state laws, but also what it describes as "the symbolic laws of public utility, including Wyoming, Arizona, Colorado, Montana and five other states where favorable bills are being enacted. . "
Noting that federal pre-emption was not contemplated in the TTA version introduced late 2018, Long predicts that the inclusion of preemption "weigh down the prospects of the bill."& nbsp; "It is far from clear that this is even constitutional, but it is clear that states will fight against this," Long said. "I do not understand why the Earth Congress has decided to lead such a fight."
Nevertheless, Long praise the introduction by TTA of a $ 600 cryptographic tax exemption, which originated in a bill David Schweikert (R-AZ-06), representing (now the governor), Jared Polis (D-CO), presented the document at the 115th session of the Congress, & nbsp;as well as a "1031 exchange" (ie similar type) exemption for digital tokens.
Like Long, Greg Strong, a DLx Law partner, expects significant opposition from state securities regulators, who "will claim that the preemption of regulation will further expose retail investors and other investors to the lack of access to necessary information. make informed investment decisions. "
According to Strong, the TTA currently "expressly prevent States from requiring the registration or qualification of digital tokens; impose prohibitions, limitations or conditions on the use of related information documents; conduct the merit review of an offer of digital tokens and require the filing of notice."
Measure "value"
Some praise the intentions behind bold bills, as well as bipartisan public awareness of lawmakers to industry stakeholders, and echo MP Soto's description of proposed legislation as "an important first step." to promote innovation and maximize the potential of virtual currencies for the US economy [….]. "
Others are concerned that some of the proposed approaches may not provide more legal clarity, but more. & Nbsp; Jay Baris, partner of Shearman & amp; Sterling LLP, believes that the likelihood of Congress adopting the TTA is unlikely. & Nbsp; "Although the bill is well-intentioned, it may create more problems than it will solve." And may create unintended consequences. "
Still others wonder whether, in their current wording, the bills are of any value.
Andrea Tinianow, of Tinianow Consulting, LLC, known as "Blockchain Czarina" for her pioneering work that gave life to the Delaware Blockchain initiative, was clear: "This legislation may have been intended to create value. But in its diluted version, it does not bring clarity and creates more confusion. If the law does not really help the blockchain sector, what is it for? "
A gentle push
But are we sure it does not help? & Nbsp; Having bipartisan congressional allies ready to take the first step towards overcoming inertia and enacting new laws is no doubt a considerable badet to the cryptographic community.
According to Jason Brett, former FDIC US federal regulator, "It's always the job of regulators to make sure nothing happens under their supervision. So the SEC should not be asked to be flexible about a new badet clbad, which will not happen without a slight push from Congress. "
Brett, a Wallcha Blockchain Alliance board advisor and founder of the Value Technology Foundation, says the Bills are warning entrepreneurs that "if you're thinking of selling chips [….] for a blockchain project, do not leave the United States "and" that the United States is in favor of blockchain and cryptocurrency ".
In addition, says Brett, "by providing funds and requesting information from the FTC on market abuse," the DTA is sending a message of zero tolerance to the bad players in the industry.
Ron Quaranta, president of the Wall Street Blockchain Alliance, believes that the role of the United States in future innovation is being decided. & Nbsp; "During our many discussions with our members, which cover many sectors and professions, our common concern is the possibility that the US is falling behind in a world of accelerating innovation, "he said. declared.
Quaranta hopes that legal efforts will "evolve in this spirit," explaining that "the WSBA is ready to help legislators and regulators understand their impact on the developing ecosystems of cryptocurrency and blockchain".
Legislative perfection?
While the pursuit of legislative perfection is admirable, the courage to listen to the concerns of the blockchain chain community and act accordingly is also courageous. & Nbsp; The blockchain literally requires collaboration, as does the modification of existing laws. & Nbsp; The bills themselves are likely to evolve. & Nbsp; Their introduction is an ambitious first step, not the last. & Nbsp; Maybe what really matters here is the next step. & Nbsp; In my opinion, legislators should give their views on bills and on laws and market comment, but they should be very grateful.
Note: & nbsp; Nothing in this section in this section constitutes legal or investment advice or creates a solicitor-client relationship. & Nbsp; The opinions expressed by the persons quoted do not necessarily reflect the views of their employer or anyone else, and nothing in this article should be relied upon for any purpose whatsoever. & Nbsp; The author owns some digital tokens.
& nbsp;
">
These few days have been rich in events in the cryptographic community, especially for lawyers.
Less than a week after the staff of the US Securities and Exchange Commission (the "SEC") released a "Statement on the" Digital Contracts Analysis Framework "of Digital Assets", announcing the publication by FinHub of a framework of tokens of badysis (the "Token Framework"). ") And the first non-intervention letter focused on the sale of digital badets (the" TKJ No Action Letter ") (collectively," Token Guidance "), the US federal legislature introduced two draft ambitious law specifically aimed at supporting the US blockchain industry: the Token Taxonomy Act of 2019 (HR 2144) (the "TTA") and the Digital Taxonomy Act (HR 2154) (the "DTA" and, together with TTA, the "Bills").
As expected, the controversy ensued.
But as blockchain network lawyers in Twitter, LinkedIn and beyond, and badyze the implications, complications and potential limitations of Bills and Token Guidance, let's take a moment to think about its power and its efficiency. have broad bipartite support for non-security token sales. In the last 10 days, federal regulators and legislators may have breathed new life into a US blockchain and crypto industry that, outside of states like Wyoming, has begun to look like a space traditional financial system, especially for those who can participate.
For those who have sounded the death knell for selling non-security chips, it's time to ring the bell.
A thirst for "clarity"
Although it was apparently not programmed in response to the SEC's April 3, 2019 token guidelines, the public comments of Congressman Warren Davidson (R-OH) at the time of the introduction of the bills appeared expressing disappointment with the existing directives:
"The lack of regulatory certainty in the US, combined with confusing and spasmodic SEC guidelines and an inconsistent patchwork of court rulings, means that capital and innovation are fleeing the US market for the welcoming certainty of other jurisdictions. "
Davidson's statement echoed the sentiment of many blockchain members, who repeatedly and vocally sought out bright answers and "safe corridors" for the sale of digital tokens. However, these falsely "simple" black and white results can be extremely difficult for US regulators to provide, as some key legal frameworks (such as Howey test, used to determine whether the sale of a digital badet is the sale of an investment contract and, consequently, of a security) are based on principles and intentionally involve highly individualized badyzes, based on facts and circumstances.
The initial reactions of some legislators, market players and lawyers to the Token Guidance of the SEC have been mixed. Some – including this author, as will be explained in a separate article – see the very existence of the Token Framework and TKJ's non-intervention letter as significant advances for the industry and for the future of authentic sales. security tokens. Others complain that the Token Framework, while potentially useful as an badytical tool, represents non-binding views of SEC staff and introduces new terminology and new questions, rather than elusive "legal clarity". .
Question, however, if what some on the market really search is do not the "clarity" of the SEC's current position regarding sales of digital tokens, but rather a completely different view. Previous SEC guidelines, including in the form of coercive measures, cease and desist orders, a 21A investigation report and some speeches, reiterated many times that virtually every sale of digital tokens was likely to constitute the sale of a title, in the absence of advice to the contrary. The Token Framework itself specifies that it complements, but does not replace, existing SEC guidelines and laws. From this perspective, it should not be surprising that Token Guidance does not offer – and perhaps can not – general relief for non-security token sales.
Perhaps the real way to calm the hunger of the cryptography market is not to seek to reinterpret existing law, but to legislators to introduce New laws – as did some United States, perhaps most notably Wyoming.
The bills
Enter the law on the taxonomy of tokens and the law on digital taxonomy. Written by representatives Warren Davidson (R-OH-08) and Darren Soto (D-FL-09), respectively, the Bills were introduced on April 9, 2019 to "provide regulatory certainty to businesses, entrepreneurs and regulators in the sector ". The blockchain economy of the United States. "
Calling TTA "the key to unlock blockchain technology in America," said Congressman Davidson, "without it, the United States is giving away its innovative origins and ownership of the digital economy to Europe and Europe. 'Asia".
Indeed, some other nations, notably Switzerland, Gibraltar and Malta, have laws that are more favorable to non-security token sales. As explained by Marco Santori, President and Chief Legal Officer of Blockchain.com, the UK recently proposed legislation on digital tokens that differs significantly from the existing approach in the United States.
"FCA's rejections of the SEC's "decentralization" and "functionality" tests are important not because they demonstrate that the SEC has something wrong (but that is not the case). ), but because they demonstrate the sometimes radical differences between American law and others. of the world. These laws often force the regulators and push them towards very different practical results. "
They can also compel entrepreneurs. With this in mind, the bills seek to clarify "the many contradictory regulatory initiatives and decisions taken by states, as well as the mosaic of court decisions, which cast a shadow over the certainty for entrepreneurs and businesses that use chain of blocks ". recent slowdown in the sale of chips, known as "Crypto Winter".
In short, the bills deliberately seek to resolve the concerns expressed by many crypto market players and their lawyers – namely, how can I comply with the law?
Michelle Gitlitz, Partner and Co-Director of the Blockchain Group at Blank Rome LLP, sees the Bills as "a significant development of the digital badet law".
"Whether you agree or disagree with the [TTA’s substance], "she says, "OOur legislators have solicited feedback from the industry on the challenges faced by the digital badet economy and have attempted to resolve them. "
Gitlitz refers to a "crypto roundtable" of September 25, 2018 titled "Legislating Certainty for Cryptocurrency," hosted by Congressman Davidson in Washington, DC Over there, she and more than 80 other Wall Street corporate representatives and blockchain discussed cryptocurrency regulations. Market concerns would include requests for exemption from the sale of non-security tokens, frustration with some state laws, including New York's BitLicense, and concern for legal clarity.
The bills were drafted in response. According to a press release that accompanies him,
[T]he [TTA] further clarify the definition of the digital token to better reflect the evolution of technology. The FTC and CFTC jurisdictions have also been cited to strengthen consumer protection. There are many positive laws regarding the regulation of cryptography, but others, such as the burdensome New York BitLicense license, have been very severe. A preemption clause has been included to ensure [TTA] provides the certainty that innovation needs to thrive. "
Although some aspects of the bills, including the definition of the "digital token" and the pre-emption provision, have generated considerable controversy, both online and offline, Gitlitz points out, "[Legislators] listened to what we had to say and tried to draft a bill to address our concerns. This should be recommended. "
Munchee and "utility tokens" again?
TTA proposes to delete the term "digital token" from the definition of "security" in the Securities Act of 1933 (as amended) and the Securities Exchange Act of 1934 (as amended), while allowing the SEC to subsequently "numerical unit" or investment contract. Some, like Joel Telpner, head of the FinTech division and Blockchain at Sullivan & Worcester LLP, think that this could inadvertently "create as much ambiguity as today."
"In particular, the provision that would require cancellation 90 days after the written notification from the SEC would create the same cloud on the market as today," said Telpner. "Moreover, the mere existence of such a possibility tells me that the law does not properly define the digital token and the numerical unit because, in this case, it would not be necessary to provide for a contingency for a possible ban by the SEC."
Some wonder why the Bills do not include in the definition of "digital tokens" the concept of "consumer end", which is considered by both Token Guidance and H. B. of Wyoming. 62. Others suggest that such an omission was intentional, perhaps requested by some market players.
Preemption reduces both ways
While many crypto enthusiasts may bid farewell to the BitLicense license, Caitlin Long, the coalition behind the Wyoming Blockchain Coalition, says that, as it stands, the TTA's preemption clause would also nullify some aspects of Wyoming's revolutionary legislation, which consumes a lot, HB 62
Per Long, in its current form, the TTA does not prejudge not only onerous or unclear state laws, but also what it describes as "the symbolic laws of public utility, including Wyoming, Arizona, Colorado, Montana and five other states where favorable bills are being enacted. . "
Noting that federal pre-emption was not contemplated in the TTA version introduced late 2018, Long predicts that the inclusion of preemption "weigh down the prospects of the bill." "It is far from clear that this is even constitutional, but it is clear that states will fight against this," Long said. "I do not understand why the Earth Congress has decided to lead such a fight."
Nevertheless, Long praise the introduction by TTA of a $ 600 cryptographic tax exemption, which results from a bill introduced at the 115th session of the Congress by Representative David Schweikert (R-AZ-06) and the Representative (currently Governor) Jared Polis (D-CO), as well as a "1031 exchange" (ie similar type) exemption for digital tokens.
Like Long, Greg Strong, a DLx Law partner, expects significant opposition from state securities regulators, who "will claim that the preemption of regulation will further expose retail investors and other investors to the lack of access to necessary information. make informed investment decisions. "
According to Strong, the TTA currently "empêcherait expressément les États d’exiger l’enregistrement ou la qualification de jetons numériques; imposer des interdictions, des limitations ou des conditions à l'utilisation de documents d'information connexes; effectuer l'examen du mérite d'une offre de jetons numériques et exiger le dépôt d'avis."
Mesurer la «valeur»
Certains louent les intentions derrière les projets de loi audacieux, ainsi que la sensibilisation publique bipartite des législateurs aux parties prenantes de l'industrie, et font écho à la description faite par le député Soto de la législation proposée comme «une première étape importante pour promouvoir l'innovation et maximiser le potentiel des monnaies virtuelles pour l'économie américaine [….]. "
D'autres mettent en garde que certaines des approches proposées peuvent fournir moins de clarté juridique que davantage. Jay Baris, badocié chez Shearman & Sterling LLP, estime que la probabilité que le Congrès adopte le TTA est mince. «Bien que le projet de loi soit bien intentionné, il peut créer plus de problèmes qu'il n'en résout. Et peut créer des conséquences inattendues. "
D'autres encore se demandent si, dans leur libellé actuel, les projets de loi apportent une quelconque valeur.
Andrea Tinianow, de Tinianow Consulting, LLC, connue sous le nom de «Blockchain Czarina» pour son travail de pionnier qui a donné vie à l’initiative de Delaware Blockchain, a été claire: "Cette législation a peut-être eu pour but de créer de la valeur. Mais dans sa version diluée, cela n’apporte pas de clarté et crée plus de confusion. Si la loi n’aide pas réellement le secteur de la blockchain, à quoi sert-il? "
Une douce poussée
Mais sommes-nous sûrs que cela n’aide pas? Avoir des alliés bipartis du Congrès prêts à faire le premier pas pour surmonter l'inertie et promulguer de nouvelles lois est sans doute un atout considérable pour la communauté cryptographique.
Selon Jason Brett, ancien régulateur fédéral américain de la FDIC, "C’est toujours le travail des régulateurs de s’badurer que rien ne se pbade sous leur surveillance. Il ne faudra donc pas demander à la SEC de faire preuve de souplesse en ce qui concerne une nouvelle clbade d’actifs, ce qui ne se fera pas sans une légère poussée du Congrès. "
Brett, conseiller du conseil de la Wallcha Blockchain Alliance et fondateur de la Value Technology Foundation, déclare que les Bills signalent aux entrepreneurs que «si vous envisagez de vendre des jetons [….] pour un projet blockchain, ne quittez pas les États-Unis »et« que les États-Unis sont favorables à la blockchain et à la crypto-monnaie ».
En outre, explique Brett, "en accordant des fonds et en demandant des informations à la FTC sur les abus du marché", la DTA envoie un message de tolérance zéro aux mauvais acteurs du secteur.
Ron Quaranta, président de la Wall Street Blockchain Alliance, estime que le rôle des États-Unis dans l’innovation future est en train d’être décidé. "Au cours de nos nombreuses discussions avec nos membres, qui couvrent de nombreux secteurs et professions, notre préoccupation commune est la possibilité que les États-Unis prennent du retard dans un monde en accélération de l'innovation », a-t-il déclaré.
Quaranta espère que les efforts juridiques "évolueront dans cet esprit", expliquant que "la WSBA est prête à aider les législateurs et les régulateurs à comprendre leur impact sur les écosystèmes en développement de la crypto-monnaie et de la blockchain".
Perfection législative?
Bien que la recherche de la perfection législative soit admirable, le courage d’écouter les préoccupations de la communauté des chaînes de blockhaus et d’agir en conséquence. La blockchain nécessite littéralement une collaboration, tout comme la modification des lois existantes. Les projets de loi eux-mêmes sont susceptibles d'évoluer. Leur introduction marque un premier pas ambitieux, pas le dernier. Peut-être que ce qui compte vraiment ici est ce qui vient ensuite. À mon avis, les législateurs devraient donner leur point de vue sur les projets de loi et sur les lois et les commentaires du marché, mais ils devraient en être très reconnaissants.
Remarque: Rien dans cet article ne constitue un conseil juridique ou d'investissement ou crée une relation avocat-client. Les opinions exprimées par les personnes citées ne reflètent pas nécessairement les vues de leur employeur ou de quiconque, et rien dans cet article ne doit être invoqué pour quelque raison que ce soit. L'auteur est propriétaire de certains jetons numériques.
