Decentralized Transactions Challenge Howey Test’s Application to NFTs

Decentralized Transactions Challenge Howey Test’s Application to NFTs
  • The key question is whether NFTs meet the Howey test criteria for classification as securities under federal laws.
  • In the NFT industry, adopting best practices includes transparency, fraud prevention, respecting intellectual property, and ethical conduct.

Non-fungible tokens (NFTs) are unique digital assets that can represent anything from art and music to virtual land and gaming items. They have exploded in popularity and value in recent years, attracting the attention of celebrities, investors, and regulators alike. The legal status of NFTs remains unclear and controversial, especially in the United States, where the Securities and Exchange Commission (SEC) has the authority to regulate securities and protect investors from fraud and manipulation.

One of the key questions that arises is whether NFTs are securities under the federal securities laws, and specifically, whether they meet the criteria of the Howey test, the legal framework established by the Supreme Court in 1946 to determine whether an instrument is an investment contract and thus a security. Howey test has four elements, I will argue that NFTs are not securities. On top of that, I will also address some of the counterarguments and challenges that NFTs may face in the future, and suggest some possible solutions and recommendations for the industry and the regulators.

NFTs are not investments of money, but rather purchases of digital goods

The first element of the Howey test is whether there is an investment of money or something of value in exchange for the instrument. This element is usually easy to satisfy, as most financial transactions involve some form of payment. However, in the case of NFTs, the payment is not an investment, but rather a purchase of a digital good.

They are not shares, bonds, or derivatives that represent a claim or a right to a future cash flow or a share of profits. Rather, they are digital tokens that prove ownership and authenticity of a unique digital asset. In my point of view, they are similar to other digital goods, such as e-books or music downloads, that consumers buy for personal use and enjoyment, not for investment purposes.

NFTs are not common enterprises, but rather individualized and decentralized transactions

The second element of the Howey test assesses the presence of a common enterprise, where investors’ fortunes are tied to the success of an issuer or third party. However, in the case of NFTs, no such common enterprise exists. Transactions are decentralized and individualized, with various artists and creators minting NFTs across different blockchain networks like Ethereum or Solana. NFT buyers rely on blockchain‘s public ledger to verify authenticity, rather than trusting a specific issuer or promoter.

NFTs do not generate profits, but rather subjective value and utility

The third element of the Howey test concerns whether there’s a reasonable expectation of profits. Unlike traditional investments, NFTs don’t generate income or appreciate based on others’ efforts. Instead, their value comes from subjective qualities like rarity, originality, and cultural significance, rather than anticipated financial returns. NFT buyers don’t expect profits but rather value the assets for their intrinsic qualities and utility.

NFTs are not dependent on the efforts of others, but rather on the creativity and innovation of the creators and the community

The fourth element of the Howey test examines whether profits stem from the efforts of others. Unlike traditional securities, NFT profits aren’t reliant on issuer or third-party services. NFT value is driven by the creativity and innovation of artists and developers, not centralized platforms. Buyers assess and appreciate digital assets based on personal judgment, rather than external influences.

Counterarguments and challenges

Despite the arguments in favor of NFTs, potential challenges from regulators and courts may arise in the future. One such challenge is the classification of certain NFTs as securities under regulatory tests like the Howey or Reves tests. Depending on their characteristics, some NFTs could represent real-world assets or rights, potentially falling under the definition of securities, especially if they promise future cash flows or resemble investment instruments.

Moreover, even if NFTs don’t meet all elements of the Howey test, they might still be deemed securities through a flexible analysis. For instance, if they are marketed as investments or show characteristics of speculative opportunities, they could create expectations of profit, thus falling under securities regulations. Additionally, if buyers pool funds or share risks and rewards, or if the NFTs’ value depends on underlying asset performance, regulators might consider them securities.

Furthermore, beyond securities laws, NFTs could be subject to various other regulations based on their nature and function. Anti-money laundering and sanctions regulations might apply if NFTs facilitate illicit transactions. Tax regulations could come into play if NFT transactions generate taxable income or capital gains. Consumer protection laws might be relevant if NFTs involve deceptive practices or breach contracts. Intellectual property regulations could be triggered if NFTs infringe upon original creators’ rights.

My take: Possible solutions and recommendations

Given the uncertainty and complexity of the legal landscape surrounding NFTs, it is important for the industry and the regulators to work together to find possible solutions and recommendations that can balance the interests and needs of all the stakeholders. Here are some suggestions from me that may help to achieve this goal:

  • Industry stakeholders should adhere to best practices and standards to improve transparency, accountability, and compliance in the NFT market. This includes clear disclosure of terms and conditions for NFT transactions, implementing measures to prevent fraud and illegal activities, and respecting intellectual property rights. Additionally, they should engage in responsible and ethical behavior, avoiding harm to the environment, society, or public interest.
  • Regulators should adopt a flexible approach to regulate the diverse NFT market. Avoiding overly restrictive frameworks is crucial to foster innovation and growth. Recognizing nuances among NFT types and consulting with industry and community for feedback is essential. Continuous monitoring and evaluation of market evolution are necessary to update policies accordingly.

Conclusion

NFTs are a new and exciting phenomenon that has revolutionized the digital economy and culture. They offer unprecedented opportunities and challenges for the creators, consumers, and regulators of the digital assets.

The legal status and implications of NFTs are still unclear and uncertain, and may vary depending on the facts and circumstances of each case. Therefore, it is important to understand and address the potential legal issues and risks that may arise from the creation, distribution, and consumption of NFTs, and to seek appropriate solutions and recommendations that can foster a healthy and sustainable NFT market.

 

Source: https://www.financemagnates.com/cryptocurrency/decentralized-transactions-challenge-howey-tests-application-to-nfts/

Anndy Lian is an early blockchain adopter and experienced serial entrepreneur who is known for his work in the government sector. He is a best selling book author- “NFT: From Zero to Hero” and “Blockchain Revolution 2030”.

Currently, he is appointed as the Chief Digital Advisor at Mongolia Productivity Organization, championing national digitization. Prior to his current appointments, he was the Chairman of BigONE Exchange, a global top 30 ranked crypto spot exchange and was also the Advisory Board Member for Hyundai DAC, the blockchain arm of South Korea’s largest car manufacturer Hyundai Motor Group. Lian played a pivotal role as the Blockchain Advisor for Asian Productivity Organisation (APO), an intergovernmental organization committed to improving productivity in the Asia-Pacific region.

An avid supporter of incubating start-ups, Anndy has also been a private investor for the past eight years. With a growth investment mindset, Anndy strategically demonstrates this in the companies he chooses to be involved with. He believes that what he is doing through blockchain technology currently will revolutionise and redefine traditional businesses. He also believes that the blockchain industry has to be “redecentralised”.

j j j

Harvest Fund’s Spot Bitcoin ETF Application: A Game-Changer for Hong Kong’s Crypto Landscape

Harvest Fund’s Spot Bitcoin ETF Application: A Game-Changer for Hong Kong’s Crypto Landscape

In a groundbreaking move that could reshape Hong Kong’s financial landscape, Harvest Fund Management has officially submitted the first-ever application for a spot Bitcoin ETF to the Hong Kong Securities and Futures Commission (SFC) on January 26. This development comes hot on the heels of the recent approval of similar ETFs by the US Securities and Exchange Commission (SEC) and marks a pivotal moment for the city’s growing interest in cryptocurrencies.

The SFC has expressed a keen interest in expediting the approval process for Hong Kong’s inaugural spot Bitcoin ETF. Plans are underway to list it on the Hong Kong Stock Exchange shortly after the Chinese New Year in February. This rapid development could set the stage for multiple institutions to enter the market, aligning with the US model where ETF sizes grew rapidly under the influence of key financial players.

While Harvest Fund is the first to apply, several existing crypto companies that launched futures-based ETFs in Hong Kong are expected to follow suit. Samsung Asset Management, known for launching the Samsung Bitcoin Futures ETF in 2023, has expressed openness to exploring a spot ETF. Other financial firms such as Venture Smart Financial Holdings have shown interest in applying for a spot crypto ETF too.

Moreover, Harvest Fund’s ETF might distinguish itself from its US counterparts. There are indications that it could allow not only traditional fiat currency subscriptions but also direct Bitcoin subscriptions. This novel approach could provide investors in the region with a distinctive and flexible investment option.

Implications for Hong Kong’s Financial Landscape

The recent developments in Hong Kong are not surprising given the city’s crypto-ready stance. Hong Kong has been a frontrunner in embracing digital assets, evidenced by its eight-month-old rulebook about digital assets, aimed at protecting investors while encouraging innovation. This forward-thinking approach has positioned Hong Kong as an attractive destination for crypto-related ventures.

The introduction of a spot Bitcoin ETF is bound to have a profound impact on Hong Kong’s financial sector, providing investors with an accessible and regulated gateway to the world of cryptocurrencies. It aligns with the city’s goal to establish itself as a digital-asset hub, fostering innovation while ensuring investor protection.

Growing Acceptance of Crypto in Hong Kong

The submission by Harvest Fund signals a remarkable shift in the perception and acceptance of cryptocurrencies within mainstream financial markets. However, this acceptance is not limited to ETFs. The Hong Kong Monetary Authority (HKMA) has been in discussions with companies like Harvest Global Investments, RD Technologies, and Venture Smart Financial Holdings regarding stablecoin trials within regulatory sandboxes. These developments underline Hong Kong’s commitment to fostering innovation and facilitating the integration of digital assets into its financial ecosystem.

Impact on Investment Opportunities

The potential approval of Harvest Fund’s ETF could open the floodgates for a diverse range of investors, especially those who are traditionally cautious due to the perceived complexity and risks associated with the crypto market. The potential approval aligns with a global trend where institutional investors are increasingly exploring cryptocurrency as an alternative investment, particularly in the wake of traditional market challenges.

Anndy Lian, an intergovernmental blockchain advisor, emphasizes the global context, pointing out that the Chinese stock market had a lackluster performance in 2023. The increasing interest in crypto alternatives is viewed as a positive development for the crypto industry. Harvest Fund, ranking as China’s sixth-largest public fund manager, filing for a Bitcoin ETF could pave the way for more Chinese capital to flow into the crypto market.

Global Impacts

Global Crypto Adoption

The developments of the crypto landscape in Hong Kong are likely to influence other nations in the integration of crypto into traditional financial systems. The approval of a spot Bitcoin ETF in Hong Kong could encourage regulatory bodies in other countries to review their own stance about cryptocurrencies and provide a clearer regulatory framework for digital assets. Hong Kong’s regulatory approach to the spot Bitcoin ETF approval may serve as a blueprint for other regions. Regulators in various jurisdictions are likely to closely observe how Hong Kong balances investor protection with fostering innovation. The approval could set a standard for regulatory frameworks, providing clarity and encouraging other countries to follow suit.

Global Investor Confidence

Furthermore, the potential approval of a spot Bitcoin ETF in Hong Kong is poised to attract investors, especially institutional ones, on a global scale. Hong Kong’s embrace of a spot Bitcoin ETF could instill a sense of confidence in investors worldwide. The move signifies a departure from the skepticism that has surrounded cryptocurrencies in some traditional financial circles. As confidence grows, more investors, both retail and institutional, may be inclined to allocate a portion of their portfolios to digital assets. That’s why investors, both in Asia and beyond, are closely monitoring Hong Kong’s stance on cryptocurrency investment.

Increased Market Capitalization of Cryptocurrencies

It’s also worth mentioning that the approval of a spot Bitcoin ETF in Hong Kong could contribute significantly to the overall market capitalization of cryptocurrencies. As institutional investors gain easier access to Bitcoin through ETFs, a surge in demand is likely, driving up the price of the digital asset. This increased valuation directly contributes to the broader market capitalization of cryptocurrencies.

 

Disclaimer: The opinions expressed in this article are for informational purposes only. This article does not constitute an endorsement of any of the products and services discussed or investment, financial, or trading advice. Qualified professionals should be consulted prior to making financial decisions.

Source: https://www.bitget.com/en-GB/academy/harvest-fund-filed-the-first-spot-btc-etf-in-hong-kong

Anndy Lian is an early blockchain adopter and experienced serial entrepreneur who is known for his work in the government sector. He is a best selling book author- “NFT: From Zero to Hero” and “Blockchain Revolution 2030”.

Currently, he is appointed as the Chief Digital Advisor at Mongolia Productivity Organization, championing national digitization. Prior to his current appointments, he was the Chairman of BigONE Exchange, a global top 30 ranked crypto spot exchange and was also the Advisory Board Member for Hyundai DAC, the blockchain arm of South Korea’s largest car manufacturer Hyundai Motor Group. Lian played a pivotal role as the Blockchain Advisor for Asian Productivity Organisation (APO), an intergovernmental organization committed to improving productivity in the Asia-Pacific region.

An avid supporter of incubating start-ups, Anndy has also been a private investor for the past eight years. With a growth investment mindset, Anndy strategically demonstrates this in the companies he chooses to be involved with. He believes that what he is doing through blockchain technology currently will revolutionise and redefine traditional businesses. He also believes that the blockchain industry has to be “redecentralised”.

j j j

Spot Bitcoin ETF Application Marks New Era For Hong Kong: Will It Unlock A Flood Of Chinese Investment?

Spot Bitcoin ETF Application Marks New Era For Hong Kong: Will It Unlock A Flood Of Chinese Investment?

In a significant development for the cryptocurrency market in Hong Kong, Harvest Fund has officially applied to the first-ever Bitcoin (CRYPTO: BTC) spot Exchange Traded Fund (ETF) with the Hong Kong Securities and Futures Commission (SFC).

Why It Matters:

The submission of this application by Harvest Fund is a clear indicator of the growing interest and acceptance of cryptocurrencies in mainstream financial markets.

This initiative follows closely on the heels of the U.S. Securities and Exchange Commission’s approval of the first batch of Bitcoin spot ETFs just two weeks prior, a decision that has seemingly influenced the SFC’s accelerated pace in this domain.

The potential approval of this ETF in Hong Kong could significantly broaden investment opportunities and attract a wider range of investors, including family offices that have previously been hesitant to directly engage in the Bitcoin market due to its complexity and perceived risks.

According to Anndy Lian, an intergovernmental blockchain advisor, the Chinese stock market was one of the worst performers globally in 2023, funds looking for crypto alternatives are a big plus for the crypto industry.

Read Also: Unlocking Crypto Riches: Crypto Expert Shares Guide How To Value Tokens

What’s Next:

The SFC is reportedly eager to expedite the approval process for Hong Kong’s first spot Bitcoin ETF, with plans to list it on the Hong Kong Stock Exchange shortly after the Chinese New Year.

This development could pave the way for multiple institutions to enter the market, mirroring the approach taken in the U.S., where firms like GrayscaleBlackRock Inc. (NYSE:BLK), and Fidelity rapidly grew their ETFs’ sizes.

 

Source: https://markets.businessinsider.com/news/etf/spot-bitcoin-etf-application-marks-new-era-for-hong-kong-will-it-unlock-a-flood-of-chinese-investment-1033006451

https://www.benzinga.com/markets/asia/24/01/36823522/spot-bitcoin-etf-application-marks-new-era-for-hong-kong-will-it-unlock-a-flood-of-chinese-investmen

Anndy Lian is an early blockchain adopter and experienced serial entrepreneur who is known for his work in the government sector. He is a best selling book author- “NFT: From Zero to Hero” and “Blockchain Revolution 2030”.

Currently, he is appointed as the Chief Digital Advisor at Mongolia Productivity Organization, championing national digitization. Prior to his current appointments, he was the Chairman of BigONE Exchange, a global top 30 ranked crypto spot exchange and was also the Advisory Board Member for Hyundai DAC, the blockchain arm of South Korea’s largest car manufacturer Hyundai Motor Group. Lian played a pivotal role as the Blockchain Advisor for Asian Productivity Organisation (APO), an intergovernmental organization committed to improving productivity in the Asia-Pacific region.

An avid supporter of incubating start-ups, Anndy has also been a private investor for the past eight years. With a growth investment mindset, Anndy strategically demonstrates this in the companies he chooses to be involved with. He believes that what he is doing through blockchain technology currently will revolutionise and redefine traditional businesses. He also believes that the blockchain industry has to be “redecentralised”.

j j j