Isle of Man FSA publishes perimeter guidance on crypto assets and tokens (1)

On 18th September 2020, the Isle of Man Financial Services Authority (“IOMFSA”) published guidance setting out its position regarding the applicability of financial regulatory requirements to cryptoassets and tokens issued using Digital Ledger Technology (“DLT”), such as blockchain. The guidance has been developed in partnership with Digital Isle of Man.

The guidance gives greater clarity to those considering the Island as a potential home for their DLT-related businesses about the likely regulatory status of crypto assets and tokens they may issue. This status depends on the nature of the crypto assets and tokens themselves.

The key headlines of the guidance are:

• The IOMFSA looks to substance rather than form: it will regulate entities undertaking activity with cryptoassets and tokens that have the characteristics of securities or electronic money to the same extent as if they were issued in other forms.
• Entities undertaking certain activities with cryptoassets and tokens that fall outside the regulatory perimeter – including cryptocurrencies, such as Bitcoin and Ether – do not require financial services licences but must register with the IOMFSA as “Designated Businesses” and comply with Anti-Money Laundering and Countering the Financing of Terrorism requirements.

A series of FAQs has been issued alongside the guidance, clarifying the IOMFSA’s view on a number of common questions raised by those approaching Digital Isle of Man or the IOMFSA in respect of DLT-related businesses. These FAQs will be updated periodically.

Steve Billinghurst, Regulatory Lead at Digital Isle of Man, commented:

“The publication of this guidance is an important milestone, marking the culmination of a period of close cooperation between the ourselves and the IOMFSA.  But there’s plenty more to do as the regulatory environment in crypto assets and cryptocurrencies continues to develop in major jurisdictions.

Digital Isle of Man continues to keep a close eye on developments and, through a series of discussions with industry stakeholders, we will be bringing new proposals, for its consideration, to the IOMFSA regarding potential future regulatory matters, new guidance notes and further FAQs to support professional advisers and their clients.”

Adam Killip, Senior Associate from DQ Advocates added his support:

“DQ welcomes the publication of the Crypto asset/Token Activity and Regulation guidance and accompanying documents, as they give clients and professional advisors a helpful insight into the IOMFSA’s regulatory approach and areas of focus in relation to this evolving sector. We look forward to discussing and applying the guidance with our current and prospective clients in order to help them establish, develop and enhance their business on the Isle of Man.”

Paul Beckett, Senior Counsel at MannBenham welcomes this opening regulatory initiative on the part of the IOMFSA, commenting:

“This is a fast-moving sector and worldwide legislators are catching up quickly to close regulatory loopholes whilst at the same time promoting legitimate participation in what will become a global system of funding and exchange. The IOMFSA and Digital Isle of Man are laying solid foundations for the Isle of Man to take a lead.”

Stephen Savage, Head of Business for Quinn Legal, commented:

“As a firm, we are pleased to see guidance on crypto assets being issued by the Isle of Man Financial Services Authority. This burgeoning and fast paced area of commerce has been lacking in regulatory guidance in many jurisdictions for some time. The Isle of Man continues to be at the forefront of providing a regulatory framework within which blockchain businesses can establish themselves with certainty. The fact that the IOMFSA has been able to publish clear guidance in this constantly changing environment illustrates their active commitment to see the sector flourish through good governance and regulation.”