Cryptoassets and Law in Asia
Background
Why Crypto now?
Mainstream global English language media is replete with reporting and op-eds on anything “crypto”. The recent headline-grabbing tanking of several crypto coins has been deemed as a chain of “nuclear” events leading to a “crypto winter”, with reverberations not only for those who invest or operate in the cryptocurrency space, but also for central banks and the global financial system. Reports of investors rolling back stakes in cryptocurrencies or dismantling wallets in exchanges facilitating trading in cryptocurrencies, and growing calls for more regulation are some of the after effects.
Importantly, the demography invested in mostly unregulated cryptoassets is diverse — it is not just institutional investors, but also retail investors who seem to be in the dark about the inherent risks which come with trading cryptocurrencies. Increasingly, many are asking: how can we make crypto activities safer? How can we scale up without scaring off? Will existing models of regulation work, even if more regulation is on the horizon?
Regulators and legislators globally are beginning to pay attention to activities in this novel area. An increasing number of them have issued statements and instruments to tame unregulated crypto activities. In financial hubs like Singapore and Switzerland, regulatory issues concerning cryptoassets are perhaps for the first time being thrashed out collectively by regulators, entrepreneurs, investors, policymakers and others under one roof.
We are at a watershed moment in the lifespan of cryptoassets. Amongst all the noise, informed dialogues aimed at bringing clarity and convergence in policy approaches in the crypto field are urgently needed.
The crypto project represents the maiden efforts of ABLI and its parent, the Singapore Academy of Law (“SAL”), to contribute to this regional and global discourse on the regulation of cryptoassets.
Approach
Overview
In early 2022, ABLI identified 15 broad issues concerning dealings with cryptocurrencies:
- Monetary: such as what is the status of cryptocurrency?
- Property: such as are cryptocurrencies property?
- Commodities: such as are cryptocurrencies commodities ?
- Goods: such as is a cryptocurrency a goods, with implications of consumers rights for example?
- Crime: such as what types of crimes can be committed using cryptocurrencies and against cryptocurrencies?
- Civil claims: such as what remedies are available against interference with cryptocurrencies?
- Civil procedure: such as what are the grounds to obtain interim relief in a civil claim where cryptocurrencies have been misappropriated?
- Unfair business practices: such as what is the state of rules and regulations on marketing and promotion of activities by crypto asset intermediaries such as trading platforms?
- Trusts: such as can cryptocurrencies be subject to a trust?
- Estate planning: such as what are the legal requirements to include cryptocurrencies in wills and probate?
- Banking and prudential regulation: such as what crypto products are banks and non-banking financial institutions permitted to offer?
- Intellectual property: such as how does ownership of copyrights and trademarks work when the protected work/mark is the subject of a cryptoasset like an NFT?
- Cross-border enforcement: such as how can interlocutory reliefs such as freezing injunctions be enforced offshore, especially when defendants are not traceable?
- Insolvency: such as what novel problems accompany meltdowns and crashes where holdings are held in cryptocurrencies?
- Tax: such as what is the scope of “taxable” events in crypto dealings?
All these issues are interconnected, with the “property” issue being identified as the foundational. While the Issues Paper seems to focus on cryptocurrencies, the project has subsequently expanded its scope to look at cryptoassets in general.
The issues framing has been done by applying a “problem-solution” lens rather than a purely doctrinal one. By actively reaching out to all players in the ecosystem, including legal professionals, investors and intermediaries such as banks and non-banking intuitions, the project aims to be the connector where all stakeholders can have their voice heard and perspectives appreciated.
Cryptoassets and Property Law (Singapore)
The first report published under the project deals with the question of the legal status of cryptoassets as property under Singapore law. Written in an accessible style completed with summaries and analysis of relevant Singapore court cases, this report prides itself to be inclusive to a wide-ranging audience including lawyers, compliance professionals, policy-makers, investors as well as intermediaries foraying into cryptoassets. More about this report can be found here.
Cryptoassets and Civil Procedure Law (Singapore)
The second report published under the project examines how Singapore’s civil procedure law responds to the advent of cryptoassets. The report is divided into 13 parts. Each part is dedicated to a problem that a party to a civil proceeding before the Singapore courts may face. The solution provided by Singapore’s civil procedure law is discussed, as well as an analysis of how well that solution responds to the advent of cryptoassets, More about this report can be found here.
Regulatory Treatment of Cryptoassets (Singapore)
The third report published under the project summarises and collates the various regulations in Singapore as a starting point for readers interested in the regulatory treatment of cryptoassets in Singapore. This report can be downloaded here.
Cryptoassets and Property Law (common law edition)
The common law edition sets out the case law to date on the property law treatment of cryptoassets in Australia, India, Malaysia and New Zealand. It keeps to the helpful structure of understanding cryptoassets, property law in the common law tradition, (importance of) cryptoasset judgments by courts of the said jurisdictions and problems, while refraining from duplicating what has already been analyzed in great detail in the Singapore edition. The common law edition is recommended to be read as a supplement to the Singapore edition.
Trusts, Estate Planning and Cryptoassets
Despite the inherent volatility of cryptoassets and the cryptoasset market, investment in such assets, or at least interest in investing in such assets, is likely to keep growing. So is the interest in holding cryptoassets as a new asset class under trusts or including such assets in estate planning.
This free Guide seeks to provide practical guidance to readers who are examining the interplay, including the potentials and pitfalls, between trusts, estate planning and cryptoassets in general terms in the common law world.
Cryptoassets and Property Law (civil law edition)
The civil law edition examines the treatment of cryptoassets as property under relevant laws of China, Indonesia, Japan, Thailand, and Vietnam. A supplement to the Singapore and common law editions in this report series, this report aims to provide a broad overview of the property laws of these five Asian civil law jurisdictions within the comparative context and offer practical guidance on how cryptoassets are treated under those laws for a diverse range of stakeholders.
Jurisdictions
The project covers a mixture of civil and common law jurisdictions in the Asia Pacific. They are:
Civil law: China, Indonesia, Japan, Thailand, Vietnam; and
Common law: Australia, India, Malaysia, New Zealand (property issue only) and Singapore.
Contributors
The project stands out by virtue of the diversity and strength of its contributors. Mostly practitioners in legal, regulatory and related fields, our contributors are on the frontlines of crypto activities and deal with the issues hands-on.
Latest
Contract Laws of Asia – Remedies for Breach of Contract
ABLI-SAL Cryptoasset Series – Cryptoassets and Property Law (civil law edition)
Data Embassies Issues Paper
[Full version] Online Dispute Resolution in Asia
ABLI-SAL Cryptoasset Series – Trusts, estate planning and cryptoassets
