Top

Hong Kong Deems Crypto as Property

Policy & Regulation·April 21, 2023, 5:44 AM

In dealing with a case involving defunct Hong Kong-based cryptocurrency exchange Gatecoin, a Hong Kong judge has determined cryptocurrency as being property “capable of being held in trust.” Presiding over the case, Justice Linda Chan stated recently that Hong Kong takes a broad definition of what constitutes property.

view on a street from angle
©Pexels/mitbg000

 

Digital assets held in trust

Having expended efforts to try and recover funds from a former payments service provider that the company had partnered with, Gatecoin announced that it would shut down the business and commence the liquidation of the business in 2019. With bankruptcy proceedings being notoriously slow, that process continues today, resulting in Justice Chan’s recent determination.

The notion of property held in trust is a common theme that has been explored in a number of cryptocurrency business bankruptcy processes recently, including the BlockFi, Celsius and FTX processes.

Gatecoin has not proven to be any different in this regard. Liquidators had turned to the Hong Kong courts for direction as to how creditors’ digital assets, as held on the platform, should be defined. If property is deemed to have been held “in trust”, then that determination has implications for the owner of those assets relative to the bankruptcy proceedings.

In the case of BlockFi, a determination was made in a US court that those who had simply custodied digital assets with the platform without earning any yield were property owners and that they should have their assets returned.

 

The importance of Terms of Service (ToS)

Alex Mashinsky, the founder and CEO of failed crypto lending competitor Celsius outlined to service users on a number of occasions that the assets remained their property even though his company used customer assets for various trading activities. The bankruptcy judge reached a different determination based on the terms of service. Service users had acknowledged in signing off on Celsius’ terms of service that assets held on the platform that accessed yield-bearing products became the property of Celsius when deposited within those products on the Celsius platform.

Although it has not been dealt with yet, 1.4 million creditors relative to the bankruptcy process of failed cryptocurrency exchange FTX are likely to discover later this year if they can claim “in trust” property rights. An ad hoc group of creditors has taken legal action for the return of their digital assets on the basis of an assertion that the assets remained their property when transferred onto the platform.

 

Implications

Whilst a seemingly uninteresting determination to anyone less informed about such bankruptcy proceedings, such decisions can have profound consequences. In a bankruptcy process, there is a hierarchy of creditors, with some having greater rights than others when it comes to the distribution of bankruptcy estate funds. Recognition of assets being held in trust as property would likely take those property owners out of the bankruptcy process, allowing the return of their funds (where available) while others who are classified as creditors get a distribution of whatever funds are left in the bankruptcy estate thereafter.

 

Additional complexity

Gatecoin’s case was further complicated by the existence of various sets of terms of service. In two of the three instances, the court found that no trust language existed. There is one subset of creditors who may have the ability to claim their digital assets as property. The liquidators have agreed to identify them and contact them in that regard.

While the process may be proving to be a minefield for Gatecoin’s creditors, it has served a broader purpose in crypto more generally as it has provided yet another opportunity for another jurisdiction, in this instance Hong Kong, to provide some more clarity with regard to the legal status and standing of cryptocurrency.

More to Read
View All
Web3 & Enterprise·

Nov 01, 2023

HKMA reflects on retail CBDC pilot phase one completion

HKMA reflects on retail CBDC pilot phase one completionHong Kong’s Monetary Authority (HKMA), the Chinese territory’s central bank, recently released a report following the completion of phase one of its central bank digital currency (CBDC) pilot, highlighting the potential benefits of a retail CBDC, commonly referred to as e-HKD (digital Hong Kong dollar).Photo by Ruslan Bardash on UnsplashUndecided on full implementationIn a press release published by the HKMA on Monday, the authority clarified that the report underscores that while a retail CBDC could bring value to the payments ecosystem and unlock new economic transaction possibilities, in-depth investigation and evaluation are essential before considering large-scale implementation.At this stage, Hong Kong’s central bank has not committed to introducing an e-HKD, but the report sheds light on the prospects and challenges associated with such a move. The region has been signaling its intent to position itself as a hub for virtual assets, evident in the regulatory framework introduced in June and the granting of licenses to crypto trading platforms in August.Project e-HKD, initiated by the HKMA in 2021, is a significant step toward assessing the feasibility of a digital Hong Kong dollar. The pilot program was launched in November 2022 as part of the HKMA's “Fintech 2025” strategy. However, the HKMA remains cautious, as reflected in the comments of HKMA CEO Eddie Yue earlier this month. Yue told the South China Morning Post that the central bank is still waiting for greater clarity when it comes to the technological, legal and societal aspects of full implementation.Three core attributes identifiedThe report identifies three primary areas where an e-HKD could provide value: programmability, tokenization and atomic settlement. These attributes could lead to faster, more cost-efficient and more inclusive transactions. However, it’s essential to note that the 14 pilot programs conducted with 16 participating firms during phase one were executed on a small scale within a controlled environment.The phase one review highlights that the true potential and prerequisites for implementing an e-HKD on a larger scale depend on market developments and further investigation. It acknowledges that minor issues identified during the pilot phase could become more prominent or even unacceptable in a production environment.Gearing up for phase twoPhase one of the pilot program delved into various aspects, including full-fledged payments, offline payments, tokenized deposits, programmable payments and the settlement of Web3 transactions and tokenized assets. Hong Kong is now gearing up for phase two of the pilot, with plans to explore new use cases for an e-HKD and engage in more focused pilot initiatives. The goal is to understand how the e-HKD can facilitate innovative methods of transacting goods and services while maintaining financial stability.The HKMA’s stance on a retail CBDC places it at the center of a global debate. While the U.S. remains undecided on the issue, with the topic becoming contentious in presidential elections, India has forged ahead with plans for a retail CBDC. Meanwhile, Thailand’s central bank commenced a pilot project for a retail CBDC earlier this year.

news
Web3 & Enterprise·

Nov 15, 2024

Coincheck to become first Japanese crypto exchange to list on Nasdaq

Coincheck, a subsidiary of Monex Group, a Tokyo-based global financial services firm, has gained U.S. Securities and Exchange Commission (SEC) approval to become the first Japanese crypto exchange to list on the Nasdaq, an American stock exchange.Photo by Denys Nevozhai on UnsplashSPAC mergerThe approval by the U.S. regulator was filed on Nov. 13. The listing has been enabled due to the company’s decision to enter into a merger with a special purpose acquisition company (SPAC), namely Thunder Bridge Capital Partners (TBCP).  A SPAC raises money through an initial public offering (IPO) to either acquire or merge with an existing company. Opting for a SPAC means that Coincheck can forego a lot of the time and expense that would be necessary if it attempted to effect an IPO on its own. Parent company Monex Group published a statement outlining that Coincheck CEO Yuko Seimei had “been diligently preparing for listing its common stock on the Nasdaq Global Market (“Nasdaq”) through a previously announced business combination with Thunder Bridge Capital Partners.” Possible Nasdaq listing on Dec. 10 In a press release issued by TBCP, the company claimed that the proposed merger is anticipated to close on or about Dec. 10, 2024. That eventuality is subject to stockholder approval, Nasdaq approval and specific closing conditions. Consequently, Coincheck’s Nasdaq listing could potentially happen as early as Dec. 10. TBCP is holding a shareholder vote on the merger on Dec. 5. If all conditions are satisfied to pave the way for listing, the company’s stock will be listed using CNCK as the Nasdaq stock ticker. Once the merger and Nasdaq listing have been accomplished, Coincheck will still remain a subsidiary of Monex Group. The merged business will gain access to $237 million, held in trust by TBCP, with Monex retaining an 82% stake in the company. Furthermore, Thunder Bridge CEO Gary Simanson will lead the new company. The $1.25 billion merger had been in the works since 2022, having faced multiple delays on the path towards merger completion and Nasdaq listing. Coincheck finally filed with the SEC to merge back in May. Parent company Monex has other interests in the digital asset sector beyond its involvement with Coincheck. Last December the company acquired a majority stake in 3iQ Digital Holdings, a Canadian crypto asset management company.Monex has just launched a new brand, Monex Web3, comprising of Monex’s Web3 business portfolio. It also offers a Web3 consulting business, using its local know-how to guide Web3 startups in entering the Japanese market. Coincheck has also engaged in partnerships to assist other firms in gaining access to the Japanese market. Earlier this year the leading Japanese crypto exchange partnered with USD Coin (USDC) stablecoin issuer Circle, in an effort to expand USDC access within the local market. In January 2018 the exchange suffered what was at the time the world’s largest ever digital asset theft, losing $534 million in virtual assets in a hack of the platform.

news
Policy & Regulation·

Apr 21, 2023

Korea’s FSS Seeks to Protect Investors from Crypto Exploit Losses

Korea’s FSS Seeks to Protect Investors from Crypto Exploit LossesLee Bokhyun, Governor of the Korean Financial Supervisory Service, said the agency will seek to protect investors from losses resulting from cryptocurrency exchange exploits, according to Korean newspaper Donga Ilbo.©Pexels/RODNAE ProductionsEfforts to enact legislationWhile delivering a congratulatory speech at a forum co-hosted by Donga Ilbo and its subsidiary broadcasting company Channel A on Wednesday, Lee underlined that the agency will be committed to enacting legislation that obligates crypto exchanges to be held accountable for customer asset losses caused by hacks.He explained that amidst a continued crypto winter triggered by multiple failures, such as the collapse of the stablecoin Terra last year, cases of security vulnerabilities are subsequently occurring.Cold wallet requirementsIn response to this situation, financial authorities and the National Assembly are collaborating on legislation that would require crypto exchanges to store a portion of their custody assets in cold wallets, which are disconnected from the Internet, or face liability for damages resulting from hacks.A February report from blockchain data platform Chainalysis showed that losses to crypto hacks last year amounted to $3.8 billion. Earlier this month, Korean crypto exchange GDAC suffered an exploit of 20 billion KRW (~$15 million).Lee said the agency will work with the financial industry to bolster the fraud detection system and build an immediate response system that prevents uncanny transactions when abnormalities are detected. These efforts are to curb the rise in financial crimes, which followed the growing popularity of remote banking services.Experts’ inputsAt the event held to discuss the protection of consumer information in the digital age, senior researcher Kim Gap-rae at Korea Capital Market Institute said that a law should be introduced to penalize unfair practices, such as market manipulation and use of undisclosed information, in the virtual asset market.Lee Joo-hwan, head of the information security management division at Hana Bank, suggested the approach used in the US, which is recovering ill-gotten gains from financial crimes to compensate victims.Kang Byung-hoon, a professor who teaches cyber security at KAIST, anticipated that the financial industry would accelerate the adoption of confidential computing, a highly secure system, to which even administrators have limited access.

news
Loading