Blog

The report found that the top five hacks and exploits accounted for 70% of the total amount stolen so far in 2024. The main attack methods this year have been private key and seed phrase compromises, as well as smart contract exploits and Stablecoin flash loan attacks. The WCTR aims to make the abuse of funds and use of cryptoasset transfers for terrorist financing more difficult, and allow authorities to trace transfers where required for mitigating financial crime.

Is There Any Regulation on Crypto?

However, due to the limited number of participants in double-entry bookkeeping, the possibility of fraudulent accounts still exists. In the Enron scandal in 2001, Arthur Andersen, who was among the top five accountants in the world, became notorious for assisting Enron’s accounting data falsification and finally withdrew from the accounting and auditing market, which fully illustrates the shortcomings of double-entry bookkeeping (Şenyiğit 2013). It includes amendments to the Proceeds of Crime Act 2002 (POCA) to support the recovery of crypto assets. The bill creates new powers to seize and forfeit crypto assets in civil and criminal proceedings and to impose reporting obligations on https://www.xcritical.com/ cryptoasset businesses.

The Technical Characteristics and Legal Challenges of Cryptocurrency

Existing blockchain payments private law frameworks should be unambiguously extended to crypto assets and apply to everything (all applications of blockchain technology) outside of the said public law objectives. Only such a combined regime, uniting permissionless and permissioned regulation, will allow the full potential of blockchain technology to be realized. The legal functionality of these private law instruments can be virtualized into blockchain-based tokens and smart contracts, i.e., the contractual or personal rights may be embodied in a crypto token and transacted through a smart contract. The novel blockchain-based virtual form alone does not change the legal status of the underlying rights and transactions, in the same way as we do not require any new regulations to license digital photographs in an online marketplace.

How can blockchain be used in payments?

• The official timeline is set out by ESMA, and although it is unlikely to change substantially, businesses should keep an eye on ESMA’s website for updates, including on any consultations or adaptations that may be introduced at the last minute.
• Consideration will normally be provided as the participant expects the smart contract to perform its promised effects.
• Some countries have introduced regulatory sandboxes that allow businesses to test new technologies in a controlled environment, including decentralized payment solutions.
• Furthermore, China banned Bitcoin mining in May 2021, forcing many engaging in the activity to close operations entirely or relocate to jurisdictions with a more favorable regulatory environment.
• The existing stablecoin market is worth nearly $130 billion, having grown 20-fold in the last 20 months.

It was developed in isolation from the broader public and private law legal rights framework that underpins modern legal systems. It resonated as a framework for classifying blockchain tokens due to the lack of any comprehensive alternatives. The three-class framework does not and cannot represent all possible uses and risks pertinent to blockchain technology, whether approached from a function or purpose perspective. Additional applications, uses, and risks of blockchain technology are certainly feasible, modeled through private law (especially contract law and personal rights law) framework alone. This is precisely how the applications of blockchain technology have developed in the 2018–2020 period–the Decentralized Finance (DeFi) industry has modeled blockchain products and services on contract law frameworks of the traditional financial services industry32. At the same time, in the supervision of blockchain-based cryptocurrencies, for blockchain technicians, we can learn from the “registered structural engineer” model of the national construction authority, and the technical architecture designed by them must stand the test of time.

In January, Attorney General James and a multistate coalition recovered $24 million from the cryptocurrency platform Nexo for operating illegally and sued the former CEO of Celsius for defrauding investors and concealing the company’s dire financial condition. In November 2022, Attorney General James urged congress to adopt legislation that would prohibit investing retirement funds in cryptocurrencies. In June 2022, she warned New Yorkers of the dangerous risks of investing in cryptocurrencies after the market reached then-record lows.

While the AML/CTF Act was amended to address some aspects of cryptocurrency transfer and exchange in 2017, this amendment did not see the scope of AML/CTF regulation widen the border restrictions. At the time of writing, there appears to be no indication that any such further amendment to include border restrictions is being contemplated, but there is ongoing consultation on expanding the application of the AML/CTF regime to DCEs. The AML/CTF Act mandates that both individuals and businesses must submit reports where physical currency in excess of A$10,000 (or foreign currency equivalent) is brought into or taken out of Australia. This requirement is restricted to “physical currency”, which AUSTRAC has defined as being any coin or printed note of Australia or a foreign country that is designated as legal tender, and is circulated, customarily used and accepted as a medium of exchange in the country of issue.

This coincides with Treasury’s consultation proposing to provide the RBA with expanded scope to regulate stablecoin payment systems that become fundamental to Australia’s payments infrastructure. Regulatory “perimeters” continue to expand, and regulatory expectations are rapidly increasing. All financial services companies should expect high levels of supervision and enforcement activity across ten key challenge areas. To provide any of the crypto-asset services regulated under MiCA, an authorisation as crypto-asset service provider (CASP), a new regulated status of the EU, will first need to be obtained. To this end, an application for authorisation as crypto-asset service provider must be submitted to the competent authority of the Member State where the entity has its registered office. As e-money tokens should be deemed to be electronic money under the EMD II, their issuers should, in principle, comply with the relevant requirements set out in that Directive for the taking up, pursuit and prudential supervision of the business of electronic money institutions.

These services include custody and administration of crypto assets on behalf of third parties, operating trading platforms, executing orders, and providing exchange services between crypto assets and fiat currencies. Blockchain allows users to conduct and record tamper-resistant transactions that multiple parties make without a central authority, such as a bank, when used for financial transactions. Because of these characteristics, blockchain-related products and services have the potential to produce cost savings, faster transactions, and other benefits over their traditional counterparts. Furthermore, the significant risks these products pose have been realized and negatively affected consumers and investors. Also, the bankruptcy of FTX Trading Ltd., a prominent crypto asset trading platform, led to the discovery that a substantial portion of the platform’s assets might be missing or stolen, according to bankruptcy-related documents. The framework of securities law, which is part of public law, is an obvious fit to regulate analogues of securities and money in the virtual economy when they are implemented as crypto-assets or cryptocurrencies.

If small investors invest in cryptocurrencies, they can learn from the JOBS Act for investor suitability management, thereby better-protecting investors. It can be found that the regulations governing cryptocurrencies in various countries set thresholds by the current financial legal systems such as banks and securities, rather than laissez-faire. The purpose is to encourage the development and growth of high-quality blockchain and digital financial companies and to shut out companies with poor qualifications. Too often investors are unaware of the real risks of investing in cryptocurrencies because crypto companies are not required to make critical public disclosures of their financial condition. As a result, most companies do not make any public disclosures and some companies have even publicly misrepresented their financial condition. For example, Celsius, a cryptocurrency lending platform, bought up its own token, Cel, resulting in an inflated price of Cel and an appearance of demand for Cel, which did not actually exist.

At first glance, the EU proposals appear more comprehensive than those currently proposed in the US or elsewhere, and to some extent, represent the EU’s eagerness to catch up in the field of blockchain technology. This might not be the best rationale for regulatory initiatives, but it has been present in multiple recent EU technology regulatory initiatives in areas such as data protection, web platforms, and AI. Decentralized projects may involve the issuance of tokens that, in some cases, could be classified as securities. Securities regulations may apply, and compliance with these regulations is necessary to avoid legal issues. On the enterprise level, blockchain provides a robust solution for large-scale financial transactions. It establishes a single, immutable ledger accessible to all participants, ensuring a consistent and auditable record whose transparency minimizes disputes and enables efficient reconciliation.

Crypto-asset white papers for asset-referenced tokens should include information on the stabilisation mechanism, on the investment policy of the reserve assets, on the custody arrangements for the reserve assets and on the rights provided to holders. MiCA applies to the issuance, offering to the public, and admission to trading of Crypto-assets and the provision of certain crypto-asset services in the EU. Stablecoin issuers must provide frequent transparency reports demonstrating their reserves are fully backed by liquid assets, while custodians must undergo regular audits to verify proper segregation and security of customer assets.

Efforts to better define an appropriate regulatory regime, including licensing and chartering authorities, may require legislative change and could also change the relevant markets. A new dedicated and harmonised framework for markets in Crypto-assets was necessary at EU level to provide specific rules for Crypto-assets and related services and activities that are not yet covered by EU legislative acts on financial services. It would also have to include the transfers of Crypto-assets in the scope of the existing rules on anti-money laundering. Delaware has no cryptocurrency-specific laws, but cryptocurrency may be encompassed in existing money transmission statutes. 5 DE Code § 2303 states that “No person…shall…engage in the business of receiving money for transmission or transmitting the same without having first obtained a license hereunder.” However, money transmission is not defined in Delaware law.

The launch of Libra was a major event in the field of cryptocurrency after the launch of Bitcoin in 2009. It is not only a cryptocurrency but also a financial infrastructure that includes core functions such as underlying, clearing, and settlement. It is equivalent to a new clearing and settlement network, where the original Facebook social network platform is used, through the deep integration of network business and financial services, to constitute a huge challenge to the existing commercial financial system. The ultimate question is whether the public can place its trust in Facebook and its business partners to manage a global cryptocurrency, or is that trust better placed in the hands of central banks? Central banks of many countries, such as France, Germany, etc., have explicitly refused Libra to enter.

Gilbert + Tobin maintains a seasoned team specialising in fintech and Web3, offering counsel to some of the most pioneering and successful payments, platform and crypto businesses, both in Australia and on a global scale. The firm’s experience covers a broad spectrum within this sector, encompassing digital wallets, stored value and payments providers, payment schemes and infrastructure operators, as well as centralised and decentralised platforms, including DeFi and DAO projects. In June 2023, ASIC invited regulated entities to anonymously take part in a survey to measure cyber resilience in Australia’s corporate and financial markets. The survey was designed to assist entities with assessing its ability to govern and manage cyber risks, identify and protect critical information assets and detect, respond to and recover from cybersecurity incidents. ASIC released its report noting that the survey exposed gaps in cybersecurity risk management of critical cyber capabilities with organisations being more reactive than proactive.

Cryptocurrencies are decentralized by definition and are not CBDCs, so CBDCs are not discussed in this article. On April 18, 2019, HB 2039 was signed into law, which allows “distributed electronic networks or databases” to be used to keep various business records. Privity is a concept of contract law, which refers to the close relationship to the same right by the parties of the contract56. It usually means that the contract confers rights or imposes obligations only on the parties of the contract. Privity is the special relationship that the contract creates among the parties and follows them. If a party leaves the contract for any reason, privity with respect to that party is dissolved.

In particular, the list of obliged entities is amended to include crypto-asset service providers within the category of financial institutions for the purpose of AMLD V. Some financial firms that are already regulated in the EU should be allowed to provide all or some crypto-asset services without having to obtain an authorisation as a CASP under MiCA, subject to certain notification requirements. For example, banks are allowed to provide any of the crypto-asset services, but Peer-to-peer investment firms may only provide crypto-asset services considered as equivalent to the investment services and activities for which they are already authorised under MiFID II. MiCA aims to create an all-encompassing legal framework that gives consistency in regulatory approach for all 27 countries affected. Prior to MiCA, crypto firms operating in the EU would have to comply with various different regulations, and apply for multiple licenses.

Traditional payments vs blockchain payments

Each participant has a copy of the entire blockchain, reducing the blockchain payments risk of discrepancies or fraudulent activities as they can independently verify transactions. A not-for-profit organization, IEEE is the world’s largest technical professional organization dedicated to advancing technology for the benefit of humanity.© Copyright 2024 IEEE – All rights reserved. This information is for general information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

Stablecoin regulation (June 30,

Currently, the cryptocurrency industry lacks a robust regulation regime that would prevent or intercept fraud and market failures. While there are millions of investors who have lost significant investments because of these failures, lower income investors and people of color have been disproportionately harmed by the risks of crypto. A study by the JPMorgan https://www.xcritical.com/ Chase Institute on investments made before the 2022 collapse in cryptocurrency values found that lower income households bought crypto at substantially higher prices, and as a result, those lower income households bore a disproportionate share of the losses when the bubble burst. HMRC has published consultations on tax treatment of Decentralised Autonomous Organisations (DAOs) and “lending” and “staking” of cryptocurrencies and has launched a campaign to encourage voluntary disclosure of any unpaid tax on income or gains from crypto assets. The sector has also faced significant volatility and uncertainty, as the prices of crypto assets fluctuate rapidly and unpredictably, influenced by various factors, such as supply and demand, technological innovation, regulatory developments, cyberattacks and market sentiment.

How blockchain improves payments

The consultation proposals included strengthening the rules for crypto trading platforms and custodians, introducing a crypto market abuse regime and establishing a world-first regime for crypto lending. The consultation also sought views on the regulatory treatment of stablecoins and CBDCs and the potential benefits and risks of DeFi and NFTs. The consultation closed on 26 April 2021 and the government published its initial response here. These are a type of crypto assets that aim to maintain a stable value by being pegged or backed by another asset, such as fiat currency, commodity or another crypto asset. Stablecoins are designed to address the volatility and scalability issues of other crypto assets, such as Bitcoin and Ethereum and to facilitate the use of crypto assets for everyday transactions and payments. Stablecoins have gained popularity and adoption in recent years, as they offer the benefits of both crypto assets and fiat currencies, such as speed, security, transparency and stability.

The Consultation on the Regulation of Crypto assets and Stablecoins

In December 2021, Australia announced plans to introduce a new licensing framework specifically for cryptocurrency exchanges – with a consultation period scheduled for 2022. The proposed framework would enable consumers to safely purchase and sell crypto assets in a regulated environment, and represents a move to position Australia at the forefront of the global effort to keep tech companies in check. Cryptocurrencies are not legal tender in Canada but can be used to buy goods and services online or in stores that accept them.

In September 2021, El Salvador became the first country in Latin America to make Bitcoin legal tender, issuing a government digital wallet app, and allowing consumers to use the tokens in all transactions (alongside payments with the US dollar). The move prompted foreign and domestic criticism, but El Salvador’s government has since announced plans to build a ‘Bitcoin city’ that will be funded by the token. Cryptocurrencies are broadly considered legal across the European Union, but cryptocurrency exchange regulations are different in individual member states. Cryptocurrency taxation also varies but many member-states charge capital gains tax on cryptocurrency-derived profits at rates of 0-50%. In 2015, the Court of Justice of the European Union ruled that exchanges of traditional currency for cryptocurrency should be exempt from VAT.

• The country has been working on several aspects when it comes to regulation, including taxation.
• “Smart contracts and contract law,” in The Cambridge Handbook of smart contracts, blockchain technology and digital platforms.
• This mechanism greatly increases the difficulty of tampering with information, making no false account truly technically realized.
• In the US, The E-SIGN Act and UETA are federal laws that affirm the legality of electronic signatures and records.
• In particular, ASIC’s enhanced cooperation agreement with the United Kingdom’s Financial Conduct Authority remains on foot, which allows the two regulators to, among other things, information-share, refer innovative businesses to each regulator’s respective regulatory sandbox, and conduct joint policy work.

After leaving the EU in 2020, the UK transposed the cryptocurrency regulation requirements set out in 5AMLD and 6AMLD into domestic law. Accordingly, cryptocurrency exchanges in the UK need to register with the Financial Conduct Authority (FCA) and comply with AML/CFT reporting obligations. While it doesn’t make special provisions for exchanges, FCA guidance stresses that entities engaging in activities involving cryptoassets must comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLRs). Amendments to those regulations came into force in January 2020 and incorporate the latest FATF guidelines. Cryptocurrencies are not legal tender in India and the status of exchanges remains murky, as new regulations are being considered.

Beyond reducing the risk of identity theft, this also streamlines onboarding processes for financial services. Surely, the biggest slice of that blockchain revenue pie is driven by the hundreds of cryptocurrencies that form the crypto market. In 2021, about 30 percent of blockchain’s entire market value in Europe was attributable to the banking sector, mostly due to how convenient the tech is for executing cross-border payments — a must for the continent’s multiple fiat currencies. After preliminarily determining the legal attributes of cryptocurrency as the object of ownership, it can be found that the court’s decision in the dispute case of unjust enrichment between Gao and Liu is questionable. First of all, from the perspective of fairness, the plaintiff’s property worth RMB 70,000 was possessed by the defendant, but the court ruled that the plaintiff lost the case, resulting in a loss of RMB 70,000 for the plaintiff, but the defendant gained gains for no reason.

On July 14, 2021, the ECB announced that the digital euro would officially enter a 24 month trial phase, which aims to solve key issues in the digital euro’s design, circulation, and distribution, paving the way for its official launch. The Eurosystem is establishing a market practitioner group that takes account of the views of prospective users and distributors of a digital euro during the investigation phase of the project (ECB 2021). Digital currency (e-CNY) is similar, which will help optimize the payment function of traditional legal currency, further, alleviate the dependence on payment services of the commercial sector, reduce the burden and pressure of central bank supervision, and thereby improve the status of legal tender. As a safe space, the regulatory sandbox is a framework established by regulatory agencies to enable relevant companies to conduct small-scale field tests on innovations in a supervised and controlled environment within a certain period, enjoying special exemptions, acquiescence, and other limited exceptions.

In the UK, the FCA Regulatory Sandbox offers innovators (both established and new) access to regulatory guidance across all financial services sectors. It allows firms to test products and services in a controlled environment, providing insights into consumer appeal and market dynamics. Participants benefit from a faster time-to-market at potentially lower costs and receive support in identifying and implementing consumer protection measures for new offerings, which is key to turning the blockchain consumer payments market into a robust, matured environment. Based on the above analysis, a cryptocurrency like Bitcoin is a decentralized specific virtual commodity, which does not have the nature of the creditor’s rights and cannot become the object of the creditor’s rights. At the same time, its production is based on the operation of mathematical rules, namely “mining”, which does not have the nature of intellectual property objects.

In twelve G20 countries, representing over 57% of the world’s GDP, cryptocurrencies are fully legal. We look at 60 countries—including G20 member states, plus countries with the highest rates of cryptocurrency adoption. This new research categorizes and explains how the world’s largest economies and those with high rates of cryptocurrency activity are regulating cryptocurrencies within their jurisdictions. There may also be tax implications arising for the beneficiaries of cryptocurrencies, which are similar to the tax implications for cryptocurrency holders.

Libra shifted its focus from an anchoring basket to an anchor currency in April 2020 after losing major backers including Visa and Mastercard following a backlash from global regulators. Libra officially changed its name to Diem in December 2020, in what was seen in the industry as Facebook’s concession to regulators. The Diem Network will operate using the Diem Blockchain, a new blockchain designed to be highly scalable, secure, and flexible. To meet the regulatory requirement, Diem has worked with regulators, central bankers, elected officials, and various stakeholders around the world to determine the best way to marry blockchain technology with accepted regulatory frameworks.

Also in June 2022, Attorney General James reached a nearly $1 million settlement with crypto platform BlockFi Lending LLC for offering unregistered securities. Last March, Attorney General James issued a taxpayer notice to virtual currency investors and their tax advisers to accurately declare and pay taxes on their virtual investments. In October 2021, Attorney General James directed unregistered crypto lending platforms to cease operations for not registering with the state. In particular, the Australian government is moving to increase its regulation of cryptocurrency exchanges.

But blockchain also has cybersecurity advantages, particularly the anonymity offered that provides security through obscurity, especially when privacy coins are used. AML and counter-terrorist financing obligations come under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, chapter 325 of Singapore’s Terrorism (Suppression of Financing) Act, and notices by the various its agencies, including Singapore Customs, the MAS and the Ministry of Law. And Singapore has offered plenty of opportunity this decade, as regulators in one of the world’s strongest economies look to create an environment for the digital economy to continue to thrive and compete globally. Gilbert + Tobin is a tier-one Australian corporate law firm headquartered in Sydney with additional offices in Perth and Melbourne. The firm operates with a primary focus on transactions, regulatory matters and dispute resolution. For example, if the miner supplies mining services, i.e., to a mining pool operator in Australia, the supply of mining services may be taxable if the supply is made in the course or furtherance of an enterprise that is registered for GST.

This includes territoriality (issues of jurisdiction and applicable law) and liability should something go wrong. In terms of jurisdiction and applicable law, territoriality constitutes a problem, as each network node may be subject to different legal requirements, and there is no “central administration” responsible for each distributed ledger, the nationality of which might act as an “anchor” in terms of regulation. Following this same reasoning, liability also represents a concern, as there may be no party ultimately responsible for the functioning of distributed ledgers and the information contained therein. The main impediment to the adoption of blockchain technology is the stringent application process for digital payment token services licences under the PSA– but the process may take up to a few years. The regulatory change to further advance the blockchain industry would be a simplified listing and prospectus regime for digital assets, rather than the same framework for securities.