by Yanina Petrovskaya, Alexander Yudovich, and Philipp Lennert, Rechtsanwälte Lennert Partners.
Liechtenstein has paved the way for blockchain with the ICO fact sheet, the first security token prospectus registered in Europe and with numerous drafts of the Blockchain Act, which has now been in force since the beginning of 2020. It is a unique legislation for tokens, asset tokenisation and security tokens, and provides legal certainty for international projects looking for fundraising or more liquidity for existing assets and their investors. Security tokens have been introduced from this legal perspective in part one of this article. This part focuses on the security token offering requirements.
Services of token issuer and token generator
Token issuer are persons who publicly offer tokens on behalf of third parties. This includes not only sales, but also other forms of offering, such as an award for a fee or a gift (eg, airdrop). A possible application is trading venues that carry out ICOs or IEOs for their customers.
In addition, persons who carry out their own issuance must also register if the equivalent value of the tokens issued in one year exceeds or will exceed CHF5 million.
As far as we understand under token issuer mainly of utility tokens (ICO or IEO in case the token issue is conducted primarily by a known exchange) and security tokens (STO) fall those who issue tokens professionally in the name of a client or in their own name in the amount of CHF5 million or more to be issued within a period of 12 months.
In general, every token issuer has to be registered in the FMA register. The obligation does not apply in cases in which the issuer sells his own tokens for the amount less than CHF5 million within twelve months to the public.
Services of a registered token generator who generates tokens technically are also needed within the TVTG framework. Project planning fundraising using tokens could either seek the registration as token generator or use services of the registered token generator on site. Requirements for token issuer registration can be summarised as follows:
Personal, management and shareholders have to be reliable in terms of bankruptcy and criminal law. An organisation structure with defined areas of responsibility, including procedures for dealing with conflicts of interest must exist. Furthermore, a minimum capital of 50,000 Francs, 100,000 Francs and 250,000 Francs have to be at the company’s disposal if tokens with a total value respectively of up to and including CHF5 million, of more than CHF5 million and of more than CHF25 million are issued within a period of 12 months.
Publication of basic information and notification for token issuance
Article 30 TVTG contains an obligation to prepare, report and publish basic information which should contain information about the tokens to be issued and associated rights.
An issuer of tokens that are offered to the public is obliged to create and publish appropriate basic information in advance. The corresponding obligation to provide information serves to protect users and is intended to adequately inform the interested public about the purpose of the token issue and the associated opportunities and risks.
The central difference between a securities prospectus according to Securities Prospectus Act and basic information according to TVTG is that basic information according to TVTG must be brought to the attention of the FMA in good time before the token issue; the information must also be published, eg, on the issuer's website. However, no formal approval of the information by the FMA is required.
Assumingly publication of the basic information is the major requirement for ICO/IEO or an STO which does not need to publish a prospectus, ie, raising from CHF5 million to CHF/EUR8 million.
TVTG provides for an exemption to publish basic information for the case if there is already an obligation to publish qualified information about the public offering of tokens according to other laws. Additionally, token issuer must notify the FMA of any token issuance in advance.
Requirements under prospectus regulations and access to single market
Liechtenstein as part of the European Economic Area (EEA) has to implement the European Directives into national legislation, which is the case with EEA Securities Prospectus Implementation Act (EWR-WPPDG).
This section is based mainly on existing regulations, tailored to traditional securities (such as Delegated Regulations (EU) 2017/1129, supplemented by Regulations (EU) 2019/979 and 2019/980), as well as FMA’s instructions and communication to be found at FMA’s website.
In summer 2018, the FMA approved a first securities prospectus for security tokens in the entire European Union. These securities prospectuses combine the features of classic securities prospectuses on the one hand and the elements of blockchain technology on the other.
Existing regulations, tailored to traditional securities (such as Delegated Regulations (EU) 2017/1129, supplemented by Regulations (EU) 2019/979 and 2019/980) can only be applied to security tokens if their security characteristics are fulfilled. The security property is generally assessed based on the three criteria of transferability, standardisation and tradability.
When offering securities to the public or admitting securities to trading in a regulated market, information disclosure is key to investor protection as it eliminates information asymmetries between investors and issuers.
In the public offering of securities, information disclosure is of central importance to investor protection, as it eliminates the information asymmetry between investors and issuers. Offering securities to the public generally requires preparation and publication of a securities prospectus under the EEA Securities Prospectus Implementation Act (EWR-WPPDG) (Article 1, Paragraph 1 EWR-WPPDG).
A public offering of securities in Liechtenstein may therefore only take place if previously according to the provisions of Regulation (EU) 2017/1129 and the Delegated Regulation (EU) 2019/980 and Delegated Regulation (EU) 2019/979 prospectus drawn up and approved has been published.
The minimum content of the prospectuses is specified in the Annexes to Delegated Regulation (EU) 2019/980. The Annexes to the Delegated Regulation (EU) 2019/980 contain in particular the registration forms, the securities descriptions and information on the minimum content. The type of the underlying asset is decisive, ie, depending on the focus and orientation of the security, the relevant appendices must be observed.
A securities prospectus must be approved by the FMA and published as required by law in order to be considered valid. There is no obligation to publish a prospectus if an exemption applies under Article 1 of Regulation (EU) 2017/1129. In any case, a security prospectus may be published voluntarily in order to extend the offer to the whole EEA.
Exemptions to the prospectus obligation can be found in Article 1, Paragraph 4 Regulation (EU) 2017/1129 and Article 3 EEA-WPPDG.
The most frequently used exemptions are private placement not falling under description of the public offering and exclusively qualified investors are approached. Offer of securities to the public means a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe for those securities. This definition also applies to the placing of securities through financial intermediaries.
However, such exempted offers of securities to the public should not benefit from the passporting regime under the regulation.
Resale of securities
It is important to mention, that subsequent resale of securities which were previously the subject of one or more of points (a) to (d) of Article 1(4) shall be considered as a separate offer and the definition set out in point (d) of Article 2 shall apply for the purpose of determining whether that resale is an offer of securities to the public. The placement of securities through financial intermediaries shall be subject to publication of a prospectus unless one of the exemptions listed in points (a) to (d) of Article 1(4) applies in relation to the final placement.
No additional prospectus shall be required in any such subsequent resale of securities or final placement of securities through financial intermediaries as long as a valid prospectus is available in accordance with Article 12 and the issuer or the person responsible for drawing up such prospectus consents to its use by means of a written agreement.
Voluntary prospectus approval
If a further public resale on a trading platform is planned, it could be recommended to obtain a voluntary prospectus approval. Where an offer of securities to the public or an admission of securities to trading on a regulated market is outside the scope of this Regulation in accordance with Article 1(3), or exempted from the obligation to publish a prospectus in accordance with Article 1(4), 1(5) or 3(2), an issuer, an offerer or a person asking for admission to trading on a regulated market shall be entitled to voluntarily draw up a prospectus in accordance with this Regulation.
Since Liechtenstein is an EEA member, the prospectus, including any supplements, is valid in any number of EEA member states without an additional approval procedure for a public offer or admission to trading (European passport). The FMA shall send the necessary documents to the competent authorities of the host Member State and the European Securities and Markets Authority (ESMA) within one working day of receipt of the application or approval.
Security token offering requirements in Liechtenstein look as follows in brief:
- securities prospectus registration is required with FMA if token qualifies as security;
- registration as token issuer in case of professional activity or issuance over CHF5 million;
- basic information publication in case of issuance under CHF5 million/other exemptions from prospectus obligation; and
- notification of the token issuance.
Rechtsanwälte Lennert Partners (RLP Lawyers) provide legal support for distributed ledger technology (DLT)/blockchain projects in Liechtenstein and beyond. RLP Lawyers are regularly retained by domestic and global technology companies to advise on their major transactions in Liechtenstein. Services include company incorporation in Liechtenstein and Switzerland, STO advisory services, tokenised investment fund and crypto exchanges registration, opening of bank accounts, tax compliance services as well as company maintenance in Switzerland and Liechtenstein. The firm has a powerful, flexible, small team of 4 partners and 2 associates and a high-profile international network with a focus on DACH LI, USA, Russia and the CIS countries. The firm is a member of the STO Working Group of the Crypto Valley Association and the Global Legal Blockchain Consortium (GLBC), an organisation of legal and technology industry stakeholders.
Yanina Petrovskaya is an experienced adviser to blockchain projects with over eight years of international legal consulting experience. Coming from an international consultancy background, Yanina used to work as head of compliance in a fund management company before joining RLP Lawyers as of counsel. Yanina is a speaker at international blockchain events such as Blockchain Leadership Summit, Blockchain and Bitcoin Conference, Axess Think Tank, St. Moritz Institutional Investors Summit, etc, as well as partner and lecturer of the supplementary education program Blockchain Lawyers (BCL).
Alexander Yudovich has a field of activity that includes advising private individuals and international companies on all aspects of Russian and international tax law. With over ten years of consulting experience with international law firms in Germany and Russia, he is particularly appreciated by his clients for his cross-border competence in Russia and the CIS issues. As head of tax of a large German law firm in Moscow, he has supported several international business projects from a tax perspective. Alexander sees himself as a problem solver and an international legal intermediary for the goals of his clients.
Philipp Lennert counsels entrepreneurs in questions of international asset succession planning, tax optimisation and asset protection. As a qualified trustee expert, he advises non-profit foundations and their beneficiaries in DACH LI. The focus is on the planning and implementation of structural measures in coordination with the responsible supervisory authorities and the financial administration in Liechtenstein and abroad. As a member of the Board of Trustees, Philipp works on a pro bono basis for various charitable projects.