ON REGULATION OF CRYPTOCURRENCY: INTERNATIONAL EXPERIENCE1 - IBN
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CZU 346.7:339.727.22
DOI: https://doi.org/10.52388/2345-1971.2021.1.06
ON REGULATION OF CRYPTOCURRENCY:
international experienCE1
Evgheni Florea
Doctor of Law, Associate Professor,
Comrat State University, Comrat, Republic of Moldova,
Head of Compliance Department, Quan2um OU cryptoexchange platform, Tallinn, Estonia
e-mail: florya@yahoo.com
https://orcid.org/0000-0001-7236-0695
Elena S. Pustelnik
Master of Laws, Emory University School of Law, United States of America,
Paralegal, Privacy Compliance GDPR, Cybersecurity at Workplace
e-mail: espustelnik@gmail.com
https://orcid.org/0000-0002-0034-0879
The study is dedicated to various jurisdictions’ approaches to cryptocurrency relations regulation.
The digital assets'legal status in the European Union is analyzed both at the central level as well at the
level of such EU members as Malta, Romania, Germany. Among the countries that geographically be-
long to Europe, but are not members of the European Union, Switzerland and the United Kingdom are
considered in this aspect. The authors also reviewed the most important issues of cryptocurrency regula-
tion in the largest economy in the world - the United States. The Asian region is represented in the study
by the jurisdictions where digital assets are most widespread (China and Japan). The main conclusion
is that the Republic of Moldova should develop the balanced approach to legalizing the new sphere of
socio-economic relations by taking into consideration both positive and negative experience as well as
the best legal practices of other states in this field.
Keywords: cryptocurrency, digital assets, blockchain, regulation, Bitcoin, EU Fifth AMLD Directive,
cryptocurrency exchanges.
DESPRE REGLEMENTAREA JURIDICĂ A CRIPTOMONEDEI:
experiențA internațională
Prezentul studiu examinează abordările diferitor jurisdicții cu privire la reglementarea legală a
relațiilor criptovalutare. Statutul juridic al activelor digitale în legislația Uniunii Europene este ana-
lizat atât la nivel central, cât și la nivelul unor state-membre UE precum Malta, România, Germania.
Printre țările care aparțin geografic Europei, dar nu sunt membre ale Uniunii Europene, Elveția și
Regatul Unit sunt analizate în acest aspect. Autorii, de asemenea, s-au axat pe problemele actuale ale
reglementării criptomonedelor în cea mai mare economie din lume - Statele Unite ale Americii. Re-
giunea asiatică este reprezentată în studiu de țările în care activele digitale sunt cele mai răspândite
(China și Japonia). Principala concluzie a autorilor este că pentru a dezvolta în Republica Moldova
o abordare echilibrată a noii sfere de relații socio-economice criptovalutare este nevoie de a lua în
considerențe experiența legislativă a altor state (atât pozitivă, cât și negativă), precum și cele mai
bune practici juridice de peste hotare.
Cuvinte-cheie: criptovalută, active digitale, blockchain, reglementări juridice, Bitcoin, a cincea di-
rectivă a UE, schimb criptovalutar.
1
We would like to thank Antonia GORSHENIN for editing this article.
№ 1, 2021 69REVISTĂ ȘTIINȚIFICĂ INTERNAȚIONALĂ „SUPreMAȚIA DREPTULUI”
International scientific journal „Supremacy of law”
SUR LA RÉGLEMENTATION JURIDIQUE DE LA CRYPTOCURRENCE:
expÉrieNce internationale
L'étude examine les approches de diverses juridictions en matière de réglementation juridique des
relations de crypto-monnaie. Le statut juridique des actifs numériques dans la législation de l'Union
européenne est analysé à la fois au niveau central et au niveau d'états membres de l'UE tels que Mal-
te, la Roumanie et l'Allemagne. Parmi les pays qui appartiennent géographiquement à l'Europe, mais
qui ne sont pas membres de l'Union européenne, la Suisse et le Royaume-Uni sont considérés sous
cet aspect. Les auteur se sont également penché sur les questions d'actualité de la réglementation des
crypto-monnaies dans la plus grande économie du monde - les États-Unis. La région asiatique est re-
présentée dans l'étude par les états où les actifs numériques sont les plus répandus (Chine et Japon).
La principale conclusion est que, du point de vue de l'expérience d'autres états (à la fois positive et
négative), après avoir examiné les meilleures pratiques juridiques, il faut développer en République
de Moldavie l'approche la plus équilibrée pour légaliser la nouvelle sphère de relations socio-écono-
miques.
Mots-clés: crypto-monnaie, actifs numériques, blockchain, réglementation légale, Bitcoin, cinquième
directive de l'UE, échanges de crypto-monnaie.
О ПРАВОВОМ РЕГУЛИРОВАНИИ КРИПТОВАЛЮТ: международный опыт
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данном исследовании рассматриваются подходы различных юрисдикций к правовому регу-
лированию криптовалютных отношений. Анализируется правовой статус цифровых активов
в законодательстве Евросоюза как на центральном уровне, так и на уровне таких государств
ЕС как Мальта, Румыния, Германия. Среди стран, которые географически относятся к Евро-
пе, но не являются членами Евросоюза, в данном аспекте рассматриваются Швейцария и Ве-
ликобритания. Также авторы рассматривают актуальные проблемы регулирования крипто-
валют в крупнейшей экономике мира – США. Азиатский регион представлен в исследовании го-
сударствами, где цифровые активы получили наибольшее распространение (Китай и Япония).
Главный вывод авторов состоит в том, чтобы с позиций имеющегося у других государств
законодательного опыта (как позитивного, так и негативного), выработать в Республике
Молдова максимально взвешенный подход к легализации новой сферы социально-экономических
отношений.
Ключевые слова: криптовалюта, цифровые активы, блокчейн, правовое регулирование, Бит-
коин, Пятая Директива ЕС, криптовалютная биржа.
Introduction field, foreign legislative experience can provide
The new social relations arising from the a valuable experience for the future Moldovan
emergence of digital assets have caused a need law on cryptocurrency.
for the development of an appropriate legal European Union
regulatory mechanism. Different countries, Cryptocurrency regulation in the European
depending on the degree of acceptance of the Unionare in their formative stages. The Euro-
new technology and established legal traditions, pean Union authorities are quite wary of the new
have approached this issue differently.Our study sphere. Indicative in this sense is the reaction to
is dedicated legal framework of cryptocurrency Libra, Facebook’s digital currency, which the
regulation in such jurisdictions as European company intended to launch in the European
Union, Malta, Estonia, Romania, Germany, Union. The alliance’s finance ministers decided
The United Kingdom, Switzerland, The United not to allow Libra or any other stablecoin to
States of America, People’s Republic of China be used in the European Union. The ministers
and Japan. Since the Republic of Moldova has said in a joint statement that “no agreement
not adopted yet any laws or regulations in this to launch stablecoins will go into effect until
70 № 1, 2021Evgheni FLOREA, Elena S. PUSTELNIK ON REGULATION OF CRYPTOCURRENCY: INTERNATIONAL EXPERIENCE regulatory, legal and regulatory risks have been - the obligation of platforms providing identified and addressed” [1]. Meanwhile, work cryptocurrency services to submit suspicious is already underway at the European Com- activity reports (SARs) and perform customer mission to develop specific rules to regulate due diligence (CDD). crypto-assets and stablecoins [1]. Countries in the European Union are imple- Currently, theEuropean Court of Human menting both, digital technologies and 5AMLD Rightshas onlyone precedent related to cryp- at varyious speeds. Among the jurisdictions, tocurrency. In Skatteverket vs David Hedqvist which are the most active in this area, Malta [2]. Court ruled that: and Estonia are taking the lead. 1) Bitcoin is a currency, not a commodity, Malta 2) Bitcoin exchange transactions for fiat The country is often referred to as a “block- currencies are exempt from VAT. chain island” for the activity that local authori- The Fifth Anti-Money Laundering Direc- ties are doing in attracting investments in this tive (5AMLD) has to be mentioned within EU area. Blockchain and cryptocurrencies are not regulatory framework [3]. This Directive is merely legalized here. A holistic regulatory currently the main document of the European framework provides an extremely favorable Union in the field of cryptocurrency regula- climate for foreign investors to operate in the tion. blockchain technology sector. It should be noted that EU Directivesand On July 4, 2018, the Parliament of Malta Regulationshave different normative proper- passed the following laws [6]: ties. Whereas the EU Regulation is a normative - Digital Innovation Authority Act; act of direct action, which does not require - Innovative Technology Arrangements and mediation by national law.The Directive, as a Services Act; normative act, is indirect. This means that the - The Virtual Financial Assets Act. competent authorities of the European Union The last document is the most important for have established a certain timeframefor the the industry. It covers the operations of traders, Member States to implement the Directive brokerages, exchanges and asset managers in into national law, while the national authori- Malta. The attractiveness of the “blockchain ties are free to choose the means and ways to island” for cryptocurrency investments is elo- achieve the goal [4, pp. 45-46]. As such, the quently demonstrated by the fact that Binance, Member States were required to implement the world’s largest cryptocurrency exchange by the Directive norms byJanuary 10, 2020. The volume, has moved its head office from Hong governing, supervisory and coordinating body Kong to Malta [7]. for the Directiveimplementation is The Euro- Such rapid implementation of digital tech- pean Banking Authority (EBA) [5]. nology on the island has a downside. In January In addition to the official definition of vir- 2019, the International Monetary Fund (IMF) tual currencies, the Fifth Directive also con- concluded that the growth of the blockchain tains certain requirements for Member States sector in Malta “has created significant money to regulate this area: laundering and terrorist financing risks in the - Empowering national financial monitoring island’s economy” [8]. units to obtain the addresses and identification of digital currenciesowners. Estonia - cryptocurrency exchanges and wallets According to the Doing Crypto Index, which are required to register with the competent included 23 countries where blockchain tech- authorities at their location. nology is most prominent, Estonia ranked first № 1, 2021 71
REVISTĂ ȘTIINȚIFICĂ INTERNAȚIONALĂ „SUPreMAȚIA DREPTULUI”
International scientific journal „Supremacy of law”
in terms of cryptocurrency friendliness [9]. And ing, i.e. regulating the crypto-industry, rather
this should come as no surprise. The country than prohibiting it, in the world [10].
that gave Skype to the world, actively supports Estonia was the first in the EU to implement
the IT business, and in general strives to meet the provisions of 5AMLD. It did not adopt a
the needs and demands of the time in the field of separate normative act to regulate the crypto
digital technology. The former Soviet republic environment. The necessary norms were in-
primarily attracts businesses from the former corporated into the law “On Combating Money
Soviet Union. Four main factors contribute to Laundering and Terrorist Financing” adopted
this: on October 26, 2017 [11]. This document pro-
- e-residency law, which allows foreign vided a legally regulated framework for busi-
nationals to register a business in the country nesses related to virtual currencies.
remotely and interact online with governmental The new law has appointed theFinancial
agencies from anywhere in the world. No pa- Intelligence Service as supervisory authority
perwork is required. All documents, including for virtual currency service providers which
licenses, are issued solely electronically. The is a division of the Estonian Police and Bor-
embodied concept of the “remote state” had der Guard Control (Article 69, part 3). In
the best effect on the investment climate. For addition,voluminous Section 8 of the above
a while after the law was passed, the weekly law, called “Authorization and Prohibition to
number of applications for online residency has Provide Services”is dedicated to the require-
exceeded the weekly birth rate in the country ments for conducting activities related to virtual
[10]. currencies. The detailed rules of Section 8,
- country is the only non-offshore jurisdic- provide clarity and allow all licensed indi-
tion with zero percent income tax for entrepre- viduals to legally trade, exchange, and invest
neurs. A company doing business here only has in cryptocurrencies.
to pay tax on undistributed profits, or profits It should be noted that since July 1, 2020,
that are distributed outside of Estonia. In other the specialized legislation for crypto-businesses
words, until the moment when a company de- in the country has become noticeably stricter.
cides to distribute profits outside Estonia, it is These measures resulted from the scandal at the
completely exempt from paying income tax. Estonian branch of the largest Danish commer-
- country’s membership in the EU allows cial bank Danske Bank, which was involved in
business projects registered here to legally the laundering of $220 billion [12]. This scandal
carry out their economic activities throughout was the largest of its kind in the history of the
the European Union without physical presence EU and strongly affected Estonia’s reputation.
in this territory. It is obvious that the main culprit should be
- friendly attitude of the regulators, even if the Danish regulator that ignored six warning
an investor speaks neither Estonian nor English. letters from the Estonian Financial Intelligence
Even if you speak just Russian, you can always Service and did not take appropriate measures
call and get a detailed answer to any question to stop the illegal activities [13].
related to any aspect of doing business in the To the credit of the Estonian authorities, their
country. response was very swift and harsh, directly af-
These aspects do not mean that business fecting the cryptocurrency business, which is
activities are performed out here without proper associated with increased money laundering
control. Business representatives note, that at risks. In 2020, more than 1,000 cryptocurrency
the moment, Estonian legislation regarding companies lost their licenses and fewer than 400
crypto-business is the strictest of the non-bind- firms continue to operate [14].
72 № 1, 2021Evgheni FLOREA, Elena S. PUSTELNIK
ON REGULATION OF CRYPTOCURRENCY: INTERNATIONAL EXPERIENCE
The legislative changes boiled down to the at any time be required to provide documents
following: proving the origin of funds;
- all cryptocurrency businesses are equated - company applicant, while documents
with financial services in terms of anti-money for the license are under review, must assure,
laundering and counter-terrorist financing through the Estonian Finance Department, that
regulation; the application complies with the new legal
- a firm offering services in the cryptocur- norms [15].
rency sphere must be located and operated in Romania
Estonia; The state is a part the European Union
- top managers and founders of crypto- countries whose authorities have not shown
projects, who wish to obtain an Estonian any particular interest in cryptocurrencies and
license, must provide a complete set of docu- blockchain technology. This is eloquently dem-
ments, confirming the absence of the criminal onstrated by the fact that the country is on the
record, relevant experience and the necessary list of alliance members that have not fulfilled
education; their obligations to implement 5AMLD into
- company employees must be physically national legislation [16]. In this connection, the
located in Estonia. Having a virtual office or European’sCommission decision has demon-
rented premises for nominal address registration stratedits position stating that “the Commission
is no longer sufficient; regrets that the respective member states failed
- a single virtual currency service provider to transpose the directive in a timely manner
license will replace the two previously existing and calls on them to do so forthwith, given
licenses for providing virtual currency wallet the importance of these rules for the collective
services and for providing virtual currency interests of the EU... All member states should
exchange services; have implemented the rules of the 5th Anti-
- documents required to apply for a license Money Laundering Directive by January 10,
must be submitted through a notary public or 2020... Legislative gaps arising in one Member
electronically through the Registry of Enter- State have an impact on the EU as a whole”
prises; [16]. In addition to Romania, the list of coun-
- state fee for the license increases from 345 tries that did not meet the deadline also included
to 3,300 Euros (10 times). The pending status Cyprus, Hungary, the Netherlands, Portugal,
of an application can be extended up to 120 Slovakia, Slovenia and Spain [16].
days (previously the maximum period was 60 Recognizing the fact that the implementation
days); was late, the Romanian government urgently
- company must have a payment account adopted a package of regulatory amendments
in a credit institution, electronic money in- through which the country’s legislation was
stitution or payment institution on Estonian brought into compliance with 5AMLD. The
territory or another state of the European amendments were made to Law No. 129/2019
Economic Area; on preventing and combating money laundering
- minimum authorized capital according to and terrorist financing, Law No. 15/2006 on
the new regulations is 12 thousand euros and credit institutions and capital adequacy, Code
must be paid in full; of Tax Procedure No. 207/2015 and several
- individuals who transfer cryptocurrencies other acts [17].
in excess of 15 thousand euros per month and The National Bank of Romania issued two
legal entities with monthly cryptocurrency press releases outlining its position regard-
transactions exceeding 25 thousand euros may ing “virtual currencies” [18]. The first press
№ 1, 2021 73REVISTĂ ȘTIINȚIFICĂ INTERNAȚIONALĂ „SUPreMAȚIA DREPTULUI”
International scientific journal „Supremacy of law”
release notes that “virtual currency” should be tocurrencies according to Art. 1 of the German
distinguished from national and foreign cur- Banking Act (Kreditwesengesetz) as financial
rency, as well as from electronic money. With instruments. They fall into a subcategory of so-
reference to the report of the European Central called “units of account” (Rechnungseinheiten),
Bank and the communication of the European which is a special category of financial instru-
Banking Authority, the Romanian regulator ments not based on the EU law [23].
lists the risks associated with the use of “virtual In terms of taxation, German law is not
currencies”: as strict as the US tax law, where Bitcoin is
- lack of regulation and supervision; recognized as property and is taxed on capital
- risks associated with money laundering and outflows. According to the regulation of the
terrorist financing; German Ministry of Finance, Bitcoin has been
- risks of volatility; equated to means of payment, so the purchase
- risks of inadequate security. of goods or payment for services with digital
In the second press release, issued three money is only subject to VAT [24].
years after the first one, the Romanian National Beginning in January 2020, German banks
Bank reiterated its position, describing “virtual were allowed to store and conduct transac-
coins” as “speculative, extremely volatile and tions with Bitcoin and other cryptocurrencies
risky assets”. Therefore, credit institutions, [25]. The new law stipulates that online bank-
in order to avoid reputational risks, are “not ing services, which include transactions with
recommended” to take part in any transactions stocks, bonds and cryptocurrencies, will only
involving virtual currencies, including in terms be available to German financial institutions
of providing investment or trading services. that receive the appropriate license issued by
As a consequence, Romanian commercial BaFin. The demand for legal certainty in this
banks rushed to close customer accounts of area can be demonstrated by the fact that almost
two local crypto platforms, CryptoCoin Pro immediately after the adoption of this law, more
and BTCxChange. The first platform, with than 40 banks expressed interest in obtaining a
more than 7,500 clients, was forced to change license for cryptocurrency services [26].
its jurisdiction to Luxembourg [19]. The United Kingdom
It should also be mentioned that in March The country openly supports companies op-
2018, the National Agency for Fiscal Admin- erating in the field of digital currencies, which
istration (ANAF) stated that cryptocurrency often choose it because of the availability of all
transactions are taxable [20]. necessary infrastructure for comfortably con-
Germany ducting business, as well as a well-developed
The Federal Republic of Germany ranks banking and financial sector. Nevertheless, the
33rd in the world in the adoption of cryptocur- legal framework for cryptocurrency activity
rencies [21] and ninth in the Global Innovation has not yet been developed. In terms of their
Index 2020 [22]. Nevertheless, the EU’s largest legal nature, cryptocurrencies are considered
economy is often looked back on by other mem- (UK) “private money”in the United Kingdom
bers of the alliance, so the position of German [27, p. 2].
authorities regarding cryptocurrencies seems The issue of ICO also remains unregulated,
particularly important. although most of the tokens are subject to the
The country was one of the first to define existing legal framework of the country.It is
the legal status of digital assets. Back in 2011, important to note that Brexit has had little or
the German regulator, the Federal Financial no effect on the United Kingdom’s position on
Supervisory Authority (BaFin), classified cryp- 5AMLD. The country, albeit with a slight delay,
74 № 1, 2021Evgheni FLOREA, Elena S. PUSTELNIK
ON REGULATION OF CRYPTOCURRENCY: INTERNATIONAL EXPERIENCE
still implemented the directive into national law - Security tokens. They are tokens with spe-
by amending its 2019 Regulation [28]. cific characteristics granting rights and obliga-
The Financial Conduct Authority (FCA) tions akin to investments such as stocks or debt
and the Bank of England are responsible for instruments, as stated in the Financial Services
the regulation of financial services in the UK. and Markets Act [31]. These tokens are inside
The FCA’s functions include promoting effec- the “perimeter” of regulation;
tive competition in the interests of consumers, - Utility tokens provide the right to receive
strengthening and protecting the integrity of services or goods within a platform, but not of
the country’s financial services sector, and the same nature as investments. Under certain
protecting consumers from potential harm. On conditions, these tokens can fall under the cat-
the other hand, the Bank of England works to egory of electronic money, and thus be in the
reduce or eliminate risks that could pose a threat “perimeter” of regulation.
to the country’s financial stability. In general, the UK follows the path of in-
In the absence of a clear legal framework dustry regulation similar to traditional financial
for the crypto business, British regulators have services.
been very constructive. The FCA created a pro- Switzerland
gram called Innovation Hub [29]. Cryptocur- As a global financial center, the country is
rency companies participating in it can receive reluctand to join the EU on its own initiative to
advice on the legal regulation of their current avoid collective pressure on its banking system.
or future activities. In this regard, companies Traditional finance is not Switzerland’s only
can test their business model for compliance strength. According to the Global Innovation
with current UK legislation before launching Index 2020, for the second year in a row, the
their business. This is certainly a good initiative country ranks first in the world in terms of in-
that allows potential investors to understand novation development, ahead of Sweden, the
the possible legal risks associated with digital US and the UK [22].
technologies without the threat of any repres- Overall, this jurisdiction is not just block-
sive action from the regulator. chain-friendly, but is taking the lead in the
An important document that sheds light global adoption of digital assets and distributed
on a number of legal issues that may arise for ledger technology. Large companies choose
cryptocurrency businesses is the Crypto Asset this country for their operations because of the
Guidelines published by the Office [30]. In the stability and predictability of legal regulation,
Guide, among other issues, the FCA outlines as well as of investors’ rightsprotection. The
the limits of legal regulation depending on development team of Etherium, the second most
the type of crypto assets, which fall into three capitalized cryptocurrency, chose Switzerland
categories: to register its Ethereum Foundation platform
- Exchange tokens, which are not issued and [32]. Libra, a cryptocurrency-based payment
maintained by any central authority and are system for Facebook users, is also registered
intended to be used as a medium of exchange. here.
They are usually a decentralized tool for buy- In January 2017, the city of Zug organized
ing and selling goods and services without the independent government-backed Crypto
traditional intermediaries such as central or Valley Association to promote blockchain-
commercial banks. Cryptocurrencies such as related technologies [33].
BTC, ETH, LTC, etc. should fall into this cat- The regulator for the crypto market is the
egory. These crypto-assets are usually outside Swiss Financial Market Supervisory Authority
the “perimeter” of competence; (FINMA), which reviews each ICO registra-
№ 1, 2021 75REVISTĂ ȘTIINȚIFICĂ INTERNAȚIONALĂ „SUPreMAȚIA DREPTULUI”
International scientific journal „Supremacy of law”
tion case individually. FINMA has also issued population2. Overall, it is a very heterogeneous
Guidelines for companies interested in con- jurisdiction for cryptocurrency business. It is
ducting ICO in the country, putting the main duly noted that the U.S. market is a dream and
emphasis on anti-money laundering and securi- at the same time a nightmare of any crypto-
ties regulation [34]. In a risk monitoring report, project [41]. This is due to the legal specifics
the Swiss regulator directly linked blockchain of the largest global economy, where each state
and cryptocurrencies to the increased money has its own legislation, and there are many com-
laundering risks through the country, which mittees, commissions, departments and agen-
could threaten its reputation as a financial cies at the federal level, whose competence in
center. FINMA recognizes that new technolo- terms of crypto industry is not yet been clearly
gies have great potential to improve financial enough defined.
market efficiency. However, the higher speed, The year 2013 turned out to be especially
anonymity and global nature of such financial important for the cryptocurrency business in
instruments make them attractive for illicit the country.
purposes [35]. Nevertheless, in August 2019, In November, the U.S. Senate (Commit-
the agency first issued licenses to two crypto- tee on Homeland Security and Governmental
currency banks, SEBA Crypto and Sygnum, Affairs) held a hearing on virtual currencies,
while also publishing fairly strict regulatory calling them “digital cash”. As a result of the
guidelines for blockchain payment services hearing it was ruled not to ban the circulation of
[36]. But not all companies meet the require- cryptocurrencies, but to work on the regulation
ments. For example, the regulator ruled the of this sphere of activity [42].
$90 million ICO from crypto-mining company Earlier in March of the same year, the
Envion illegal, launching an investigation for U.S. Treasury Department’s Financial Crimes
financial market violations [37]. In connection Enforcement Network (FinCEN) announced
with the case, FINMA said it would continue to that cryptocurrency to fiat money exchange
take action against illegal ICOs that “violate or operations should be regulated in the same way
circumvent the supervisory law” [37]. astraditional money exchange operations (for
In early 2020, the Swiss Ministry of Finance example, dollars to euros or vice versa). Com-
began discussing a regulation that would imple- panies providing such exchange services must
ment a legal framework to regulate blockchain register as financial service providers (Money
Service Business) and report suspicious transac-
and the crypto industry at the state level in Au-
tions (Suspicious Transaction Report) [43].
gust 2021 [38]. While the process has not yet
The U.S. court system has set an important
been completed, most cryptocurrency activity
legal precedent regarding crypto assets. In
is subject to general financial market regula-
August 2013, the U.S. Court for the Eastern
tions. Earlier, the Swiss government refused to
District of Texas in SEC vs. Trendon T. Shavers
create a separate legal framework to regulate
and Bitcoin Savings and Trust, issued a decision
blockchain and crypto industry. The authorities
that effectively equated the first cryptocurrency
decided to amend just some laws that regulate
with money. The plaintiff alleged that the de-
different areas ranging from bankruptcy of
fendant committed fraud by fraudulently misap-
companies to securities trading [39].
The United States of America 2
A crypto machine is similar to an ATM, a machine
The country ranks first in the world by the for transferring cash into cryptocurrency. According to
CoinATMRadar, as of January 2021, there were 1,125
number of CryptoATM, which indicates the cryptoATMs installed in the U.S., more than ten times
high prevalence of digital assets among the the number in second place Canada (1,144) [40].
76 № 1, 2021Evgheni FLOREA, Elena S. PUSTELNIK
ON REGULATION OF CRYPTOCURRENCY: INTERNATIONAL EXPERIENCE
propriating 263,104 in Bitcoin. According to the Crimes Enforcement Network (FinCEN);
defendant, Bitcoin is not money, so the charge - crypto-security, regulated by the Securities
has no legal basis. In the ruling on the case, and Exchange Commission (SEC) [48].
Judge Amos L. Mazzant specifically stated, “. The crypto-community also has certain
Bitcoin can be used as money. It can be used to hopes with the new U.S. President Joe Biden,
buy goods or services and to pay for individual whose team includes specialists with a deep
living expenses. The only limitation of Bitcoin knowledge of blockchain technology and
is that it is limited to those places that accept it capable of pursuing a more friendly policy
as currency. However, it can also be exchanged towards the crypto-industry. In part, these
for conventional currencies such as the U.S. hopes are already beginning to be realized.
dollar, euro, yen and yuan. Thus, Bitcoin is a In particular, the new President has decided
currency or form of money...” [44]. to freeze the implementation of some of his
The toughest stance on cryptocurrencies has predecessor Donald Trump’s decrees [49]. This
been taken by the government’s Securities and also affected the proposal to collect personal
Exchange Commission (SEC). This primarily information about the contracting parties and
applies to ICOs - initial coin offerings to at- transactions of cryptocurrency firms’ clients,
tract investors to fund a project. Considering which were supposed to be carried out by Fin-
cryptocurrency as securities, the agency has not CEN. Many crypto-business representatives
yet proposed clear and understandable rules of took this initiative of the previous President
the game for the crypto-business, which creates extremely negatively, considering it “ruinous”
legal uncertainty in the market and significantly for the field of digital currencies [50].
complicates the work of companies operating in
China
this area. A number of actions of the American
The Asian cryptocurrency market is the
regulator prompted the crypto-business to be
largest in the world. According to crypto-
very cautious about the choice of the USA as
analythical firm Chainalysis, 31% of all
a potential jurisdiction for ICO. In particular,
cryptocurrency transactions in 2020 (which
the SEC banned Pavel Durov’s TON crypto-
is $107 billion) were conducted in East Asia,
currency platform GRAM two weeks before
77% more than in the second largest region
its official launch [45]. On the same grounds,
(Western and Northern Europe) [51]. China
the agency sued Ripple, whose currency XRP
alone is home to 65% of the world’s Bitcoin
makes top 10 by market capitalization [46].
mining capacity [52].
Earlier, SEC fined another major player in the
Until 2017, the country could be considered
crypto industry, Block.one, developer of the
a world leader in cryptocurrency transactions.
EOSIO blockchain and EOS cryptocurrency,
The largest exchanges of digital assets with
due to having unregistered ICOs, for $24 mil-
a multimillion-dollar daily turnover were
lion [47].
operating here. The world’s second economy
Clarity in the regulation of crypto-business
accounted for up to 90% of all Bitcoin trading
may be increased by a bill sent to Congress,
for some period of time [53].
informally called the “Cryptocurrency Act.”
China’s dominance in this market did not
This document identifies three types of cryp-
last long, however, a series of governmental
tocurrencies, each of which will have its own
decisions were made that severely impacted
financial regulator:
the crypto industry in the country.
- commodity, regulated by the Commodity
Originally six central governmental regu-
Futures Trading Commission (CTFC);
lators – the People’s Bank of China (PBOC),
- crypto-currency, regulated by Financial
№ 1, 2021 77REVISTĂ ȘTIINȚIFICĂ INTERNAȚIONALĂ „SUPreMAȚIA DREPTULUI”
International scientific journal „Supremacy of law”
China Cyber Administration, Ministry of talk directly about cryptocurrencies, but creates
Industry and Information Technology, State a regulatory framework for cryptography and
Administration of Industry and Commerce, password management standards. According
Banking Regulatory Commission and Securi- to the document, the Central Cryptographic
ties Regulatory Commission - issued a joint Agency is in charge of public cryptographic
Announcement on Prevention of Financial work and the development of regulatory prin-
Risks Associated with Initial Token Offerings ciples for the industry.
[54]. According to the document, virtual coin In fact, the law is another step for China to
offerings were deemed unlicensed investment create its own centralized digital currency. At
solicitation. Thus,the Chinese government ef- the same time, there is almost no legal basis for
fectively banned ICOs in the country. the existence of other cryptocurrencies.
Further, in the same month, the Financial Japan
Risk Control Committee of the PBOC obliged Support for innovative technology has al-
all cryptocurrency exchanges registered in Bei- ways been a strength of the Japanese economy.
jing to completely stop trading and registering Such transnational corporations as Sony, Pana-
new users [55]. Thus, the activities of crypto- sonic, Toshiba, Hitachi are known worldwide.
currency exchanges in China were forcibly sus- Therefore, it makes sense that blockchain
pended. Companies providing cryptocurrency technology and cryptocurrencies, which are
exchange services were forced to change their unthinkable without mobile devices, found
jurisdiction to other, more loyal markets. fertile ground in this country.
According to RosBiznesConsulting (RBC The impetus for the development of regula-
Group), as a result of the measures taken, in tory rules for crypto-business was the hacking
less than a month Bitcoin trading in yuans has of Tokyo-based crypto exchange Mt.Gox. By
fallen in the country to less than 1% of global 2013, the site was processing more than 70%
turnover, and the daily trading volume has of all Bitcoin transactions worldwide. The hack
dropped from a peak of nearly 120,000 Bitcoins resulted in the loss of 744,408 BTC belonging
to less than one hundred [53]. to the exchange’s customers, as well as about
In January 2018, Chinese government 100,000 of the exchange’s own coins, totaling
banned over-the-counter cryptocurrency mar- $480 million (at 2014 exchange rates) [59].
kets as well asbuying and selling of crypto as- Country’s authorities could not ignore this case
sets by individuals [56]. In February, authorities and began to develop their own cryptocurrency
blocked internet access within the country to regulation. The process dragged on for more
foreign crypto exchanges and ICO sites [56]. than three years and the law on virtual currency
In fact, cryptocurrency trading is now regulation was adopted only on April 1, 2017.
banned in the country, but storage of digital as- [60] According to the document, cryptocur-
sets is still allowed. At the same time, Chinese rency, including Bitcoin, receives the status of a
government, while limiting the circulation of means of payment in the country and performs a
cryptocurrencies as much as possible, is taking function of currency. At the same time, the law
an active interest in the blockchain technology specifies that only Japanese yen is the official
itself. National cryptocurrency, digital yuan, monetary unit in the country. Cryptocurrency
[57] which will have a physical and virtual regulation is assigned to the Financial Services
form, is being tested in major cities across the Agency (FSA) of Japan, which is authorized to
country. It will be issued by the PBOC. register cryptocurrency exchanges and monitor
On January 1, 2020, the country’s Cryptog- their activities.
raphy Law came into force [58]. It does not
78 № 1, 2021Evgheni FLOREA, Elena S. PUSTELNIK
ON REGULATION OF CRYPTOCURRENCY: INTERNATIONAL EXPERIENCE
The aftermath of the Mt.Gox collapse led decided that “it is better for experts to set the
to the establishment of a number of fairly rules in a timely manner than for bureaucrats
stringent requirements. For example, compa- to do so” [64].
nies will have to be externally audited by the Another package of measures aimed at regu-
Internal Revenue Service, report regularly to lating the cryptocurrency industry was passed
the Government, and have at least $100,000 in on May 1, 2020. It includes amendments to the
reserve funds. Act on Settlement of Funds (ASF) and the Fi-
The process of obtaining a license will re- nancial Instruments and Exchanges Act (FIEA)
quire even more significant financial resources. [65]. The main purpose of the amendments is
Companies will have to pay a one-time fee of to increase regulatory certainty and further
$300,000. If the review results in a decision to protect consumers. The innovations provide for
deny a license, the money will not be refunded stricter control over derivatives and in-depth
[59]. development of risk management model related
In January 2018, the largest virtual asset to hacking of crypto-exchanges. In particular,
theft in the modern history occurred. Japanese all cryptocurrency firms are now required to
crypto-exchange suffered again, this time it separate user deposits from their own funds by
was Coincheck. As a result of a hacker attack, engaging third-party cold wallet services. For
$548 million was illegally withdrawn from hot wallet services, the requirements consist
its accounts [61]. This case demonstrated the of the need to store funds in the same amount
serious vulnerability of “hot wallets” where as users’, so that in the case of a hacker attack,
cryptocurrency exchange money is stored. they can recover the stolen funds [65].
The FSA reacted promptly–the hacked In addition, the amendments use the new,
exchange was ordered to review its security more precise legal term “cryptocurrency assets”
system and conduct an internal investigation instead of the former “virtual currency” [65].
of the incident, which affected 260,000 people.
Conclusions
The regulator also conducted a holistic inspec-
tion of all cryptocurrency exchanges in the As we can see, the legal regulation of
country. The main goal of the authorities was digital assets varies greatly around the world.
to make sure that the financial conditions of Approaches range from progressive (Japan,
these companies would allow them to fulfill Switzerland, Germany, Malta, Estonia) to re-
their obligations to customers [62]. strictive (China). The intermediate position is
The main result of the events that took place occupied by jurisdictions with little interest in
was the Japanese government’s approval of the new technologies (Romania, Hungary, Spain,
creation of a self-regulatory mechanism for Cyprus, the Netherlands, Portugal, Slovakia,
the cryptocurrency industry. On October 24, Slovenia). Due to the specific traditions of
2018, Japanese Virtual Currency Exchange As- legal regulation in the United States and the
sociation (JVCEA) was organizedand officially United Kingdom, these countries cannot be
recognized by the government regulator [63]. included in any of the above groups, although
The organization consists of representatives of de facto digital financial legal relations are
all crypto-exchanges in the country and has the allowed in both of them, and de jure are at
authority to develop the necessary requirements the stage of their formation. It seems that the
for operators of crypto-asset exchange services, objective of the Moldovan authorities in this
as well as to apply appropriate sanctions in sense is to develop the most balanced approach
case they violate the current legislation. The to the legalization of the new sphere of social
Financial Services Agency of Japan rightly and economic relations from the perspective
№ 1, 2021 79REVISTĂ ȘTIINȚIFICĂ INTERNAȚIONALĂ „SUPreMAȚIA DREPTULUI”
International scientific journal „Supremacy of law”
of the experience of other countries (both posi- 8. Blockchain carries ‘significant risks’ // Times
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