+350 20072150 info@attlev.gi

19 Dec 2017


Background to Gibraltar’s revolutionary DLT legislative framework

By way of an amendment to the Financial Services (Investment and Fiduciary Services) Act and by introducing the Financial Services

(Distributed Ledger Technology Providers) Regulations, 2017 thereunder, Gibraltar has created a DLT Regulatory Framework which, as from 1 January 2018, requires that any firm carrying out by way of business, in or from within Gibraltar, the use of DLT for storing or transmitting value belonging to others, will need to be licensed by the Gibraltar Financial Services Commission (“GFSC”).

The DLT Regulatory Framework was designed to provide an efficient, safe and innovative regulatory framework which is based on nine core principles.  Further details can be found at http://www.gfsc.gi/dlt.

Gibraltar is also set to regulate Initial Coin Offerings/Token Launches.

In addition to the DLT Regulatory Framework, Gibraltar has also announced its intention to regulate initial coin offerings/token launches which we will call Initial Token Offerings (“ITOs”).  It is expected that, during the course of 2018, Gibraltar will introduce a complementary regulatory framework covering the promotion, sale and distribution of digital tokens and secondary market activities (“ITO Regulatory Framework”).  GFSC has announced that the ICO Regulatory Framework will be aligned with the DLT Regulatory Regime.  It is therefore expected that the ITO Regulatory Framework will be principled based and that the 9 regulatory principles[1] that apply to all DLT providers will be adapted to cater for ITOs.

Until such time as the ITO Regulatory Framework comes into force, GFSC expects advisers in Gibraltar to have consummate regard for Gibraltar’s reputation and to have a good understanding of any ITOs launched in or from Gibraltar by considering, in particular:

• The accuracy and completeness of information [in White Papers and associated documents]

• Risk disclosures to customers

• Governance arrangements

• Fitness and propriety of the founders/promoters

• Whether there is a clear strategy following a successful token launch

• Financial crime risks

• Reputational risks

• Gibraltar banking services for ITO companies

Some Gibraltar banks offer banking services to ITO firms.  In addition to standard account opening processes, banks have additional requirements for ITO vehicles which commonly include:

• An introductory memorandum from a Gibraltar law firm explaining the work undertaken on behalf of the ITO and a summary of all checks and controls performed

• The ITOs White Paper (in advanced form and including associated documents in advanced form)

• A Business plan for the ITO company including financial projections and budget for at least 3 years, showing main sources of income and expenses and health of cash flow

• A Gibraltar legal opinion confirming that the underlying activity does not fall under any applicable financial services regulations requiring the applicant to be licensed

• Details of the ITOs client on boarding due diligence (AML/CFT/KYC) process and details of who will be performing the requisite checks

• Details of where “mind and management” of the ITO firm will be performed (there is a strong preference for a physical presence and for mind and management of the company to be in Gibraltar).

• Banks may also require to meet founders in Gibraltar face-to-face.  Account opening fees also apply.

Attias & Levy’s ITO services

Attias & Levy’s associated company incorporation and management arm, A & L Corporate Services Limited[2] (“A&L Corporate”), will only incorporate ITO vehicles if Attias & Levy are also instructed in relation to the Gibraltar legal aspects of the ITO.  Both A&L Corporate and Attias & Levy will need be fully satisfied that the proposed ITO is likely to meet the standards expected to be required once the ITO Regulatory Framework is enacted and comes into force.

Subject also to satisfactory KYC and general client on boarding processes, the fees of A&L Corporate for incorporation of an ITO company will be £2,000 – £2,500 and annual fees for the provision of registered office and company secretarial services will be a similar amount.  Please note that A&L Corporate does not provide nominee services or directorships for ITO vehicles as we believe that doing so raises issues of potential conflicts of interests as Attias & Levy will be providing independent legal advice and services.

Attias & Levy has a dedicated DLT team providing legal and regulatory advice and services to ITO companies.  As each ITO is different, it is not possible to estimate legal fees until detailed information is provided[3].  Fees estimates can be given once the number of hours likely to be needed is capable of being evaluated.  It is also Attias & Levy’s preference that a local firm of blockchain/cryptocurrency consultants is engaged who will work with the ITO vehicle and Attias & Levy from a technological perspective.  We also have a preference for ITOs which will be managed and controlled from Gibraltar.

Since Gibraltar has implemented the DLT Regulatory Framework, we are seeing immense interest in both DLT Provider licence applications and ITOs from the cryptocurrency sector.  We have an appetite for accepting instructions only from entities and professional colleagues who demonstrate a keen desire to conduct ITOs (or provide DLT services) to very high standards.

For further information please contact our DLT team by email at dltteam@attlev.gi

[1] 1. honesty and integrity, 2. pay due regard to the interests and needs of customers, 3. maintain adequate resources, 4. forward looking risk management practices, 5. protection of client assets and money, 6. effective corporate governance, 7. maintain high security access protocols, 8. detect and disclose financial crime risks, and 9. be resilient

[2] Regulated by GFSC, licence number FSC1159B

[3] Attias & Levy reserves the right to apply a preliminary screening fee which will be approximately £1,000 – £2,000