在过去两年中,我们看到在加密货币市场,首次公开发行代币(ICO)在指数上出现了巨大的增长。2017年ICO筹集了超过65亿美元的资金。 ICO通过向他们的散户投资方发售代币,成为了一种受欢迎的筹募资金的方式。与其他传统的筹资方式(如首次公开募股或风险投资)不同,ICO投资者不会获得公司的股权。相反,ICO的唯一承诺是用于在未来换取公司产品或服务的代币。具有此特征的代币称为实用代币。实用代币实际不适用于投资领域。

实际上,随着加密货币市场被炒得越来越厉害并且获得了很多的主流关注,许多投资ICO的投资者,希望ICO的代币本身能够升值并且可以通过交易来从中获利。事实上,确实很多投资者都获得了利益。2017年,对于可以投资ICO的投资者的要求非常简单,在大多数情况下,投资者必须年满18岁,且不是来自于明确禁止ICO的国家(例如中国)。基于对ICO的监管非常有限,对于投资人的要求低,使得资金可以从投资者自由流向代币发行人,从而每个人都可以获利。

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On 25 July 2017, the United States Securities and Exchange Commission (SEC) has released a Section 21(a) Report (the Report) which is to determine whether the token named ‘DAO Token’ issued by a ‘virtual’ organization known as The DAO is security. SEC found out that the DAO Token is a type of security after application of the test introduced from the SEC v W.J. Howey Co.(328 U.S. 293, 301 (1946) (Howey) and therefore subject to the Federal Securities Laws.

So, what is the test introduced in the Report and hence be relied upon by SEC to determine whether a token issued by ICO company be regarded as security?

According to Section 2(a)(1) of the Securities Act and Section 3(a)(10) of the Securities Exchange Act, ‘an investment contract’ is defined as one type of security. SEC relied upon the test from Howey case which defined what ‘investment contract’ is, that is, an investment of money in a common enterprise with a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. Even DAO Tokens are in the form of digital presence, such form shall be disregarded for substance as the Howey test ‘permits the fulfillment of the statutory purpose of compelling full and fair disclosure relative to the issurance of ‘the many types of instruments that in our commercial world fall within the ordinary concept of a security’ (Tcherepnin v. Knight, 389 U.S. 332, 336 (1976) ).

The first test from the Howey case is to assess whether there is an existence of an investment contract. As stated above, the investment of ‘money’ need not take the form of cash. The Judge in Howey case has also made a reference from Uselton v Comm. Lovelace Motor Freight, Inc to further establish that cash is not the only form of contribution or investment that will create an investment contract. Investors in DAO invested Ethereum (ETH) to make their investments for the exchange of DAO Tokens. According to Howey case, such investment is regarded as the type of contribution of value that can create an investment contract.

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The second test is that investment money must be invested in a common enterprise. However, the term ‘Common Enterprise’ lacks a common definition in the United State. The most regular approach is “multiple investors test” which indicates that a common enterprise is an enterprise that is in common among the promoter and multiple parallel investors. The report pointed out that investors who purchased DAO Tokens from the DAO were investing in a common enterprise; in other words, the DAO is a common enterprise which involves multiple investors.

The third test is that investors must invest with a reasonable expectation of profits.  Investors who purchased DAO Tokens reasonably expected to earn profits through that enterprise when they sent ETH to The DAO’s digital wallet address in exchange for DAO Tokens. Profits include dividends, other periodic payments, or the increased value of the investment as per the Report. Besides, the various promotional materials disseminated by Slock.it (a German corporation which created The DAO) and its co- founders informed investors that The DAO was a for-profit entity whose objective was to fund projects in exchange for a return on investment. It is obvious that such conduct of pooling of ETH for developing or increasing the value of DAO Tokens with the investors’ expectation that one day they could sell DAO Tokens for higher price which they had paid for ETH (which was used in exchange for DAO Tokens) and make profits out of such sale or disposal, has satisfied this third test.

The last one is that the profits gained by investors must be derived from the managerial efforts of others. The report concludes that although DAO Token holders were granted the voting rights, these voting rights were limited to an extent that the investors had no right to involve in the management and/or to put any managerial efforts. DAO Token holders were substantially reliant on the managerial efforts of Slock.it, its co-founders, and the Curators. Even if an investor’s efforts help to make an enterprise profitable, those efforts do not necessarily equate with a promoter’s significant managerial efforts or control over the enterprise.

Of course, the above mentioned test is not an absolute or exhaust test for determine whether a token issued by ICO company is security. There are more factors shall be taken into consideration and the outcome shall be assessed based on case by case basis. However, the Report has expressly indicated that if the tokens issued by the ICO companies satisfy these four criteria as discussed above, it is more likely that such tokens will be classified under the meaning of ‘Investment Contract’ as well as securities. As the result, the future issuance of ICO tokens will be supervised by the SEC and will also be required to conform to the disclosure of necessary information and the corresponding procedures, just like IPOs.

This Report is significant to those ICO companies who want to offer and sell tokens in the United States, as they must be registered with SEC once their tokens satisfy the test, unless qualified for an exemption from the registration requirements.

As a legal service provider in this area in Australia, we believe all ICO companies whoever wants to issue tokens in Australia based on blockchain technology shall deeply keep in mind whether they need Australian Financial Service License with correct scope of service to comply themselves with the Australian financial regulations and other laws. If you have any enquiries in relation to this or any other questions, please feel free to contact us and our compliance team are here to help. 

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案例2: Enosi Australia

Enosi Australia也声称在澳洲发行了首个证券类数字代币。但它与Picnic发行的代币略有不同,Enosi没有发行任何代币化的证券。相反,Enosi提供了独特的区块链融资结构,选择通过发行普通股来筹集资金,以实用代币(Joul代币)作为补充和奖励机制,Joul代币的分配将由一个叫做Enosi基金会的独立第三方控制和管理。

Enosi Australia正在筹集资金用于开发其Enosi平台,该平台将利用区块链技术并支持点对点电力交易。 Joul代币将适用于Enosi平台及其功能。在这个平台上,用户将通过他们达成的价格选择他们购买和出售能源的人。 Enosi声称这个共享系统将带来更便宜,更清洁和更有效的能量分配方法。

Enosi的证券类数字代币发行是新型区块链创业公司从ICO转向传统风险投资融资方式的一个例子。在此情形下,项目将被要求更加透明并对投资者们承担更多责任,因此投资者将得到更多的保护。如果有更多项目寻求以这种方式筹集资金,那么就意味着,这可能会为加密货币市场带来更多的合法性,这正是目前的ICO所缺乏的。

最后的想法 –证券类数字代币发行可能会恢复对加密货币市场的信任

传统金融工具和资产的代币化通过弥合金融和加密市场之间的差距,为全球金融业提供了一个独特的机会。 证券类数字代币发行为加密货币市场带来了更大的监管清晰度和责任承担。希望它们的实施可以消除一些ICO过去所带来的反面形象。

注意:本文中包含的信息不构成出售或购买任何证券的要约。 我们不支持我们撰写的任何公司或品牌,它们仅用于演示,说明或作为示例的目的。 在参与任何证券交易之前,您应该始终咨询自己的财务,税务或其他顾问。如果有任何关于证券交易的法律问题,欢迎咨询我们。

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