Now that MiFID2 is already there, starting to stretch (http://www.tesoro.es/sites/default/files/leyes/pdf/audpub_ley_mercado_valores.pdf y http://www.tesoro.es/sites/default/files/leyes/pdf/audpub_ley_mercado_valores.pdf ), it is tempting to start discussing the draft texts, that if the commissions, and the pre and post transparency, the ESIs SL and others… At the end of the day, Antonio dedicated a large part of his professional life to MiFID1; he would have had an opinion on MiFID2 and would have been essential in its implementation. But today I prefer to talk about another topic, one in which I constantly miss being able to have a conversation with him. Antonio was common sense embodied in bonhomie and, every time I am professionally faced with an issue from the spectrum of what we call “fintech”, I remember one of our last conversations, in which Antonio asked me the question that this title mail.
We were talking about social trading and - it seemed to me - of its novelty. To Antonio, with his overwhelming logic, it seemed to him that it was not so new, that it was one more manifestation, let's say, adjusted to the times and to our collective dependence on mobiles, on activities that we already knew well: or the trader Estrella limited itself to letting others copy its investment strategy and its unique transactions, without receiving remuneration in return (in any form, even as a remission of commissions owed to the platform on which the negotiation took place). Or it did so by receiving in exchange a remuneration from the platform, which channels transactions, collects from social investors and gives a fraction of its commission to the trader star whose light investors flock to. In both cases, it seemed clear that the platform was providing social investors with a portfolio management service, in which the investor had based its mandate on the classic, let's put it like this, “Follow that taxi” model. And just as in the first case, it did not seem that the star was providing any investment service - after all, he does not receive remuneration and under those conditions it is difficult to argue the professionalism of the activity, however common it may be in the second case it seems rather the opposite. By then they brought us dessert and we still had to catch up on many things, so we left it there, but I came out of that conversation admired by Antonio's ability, so rare, to reduce conceptual tangles to an orderly grid ...
These days I especially miss him in the face of ICOs (Initial Coin Offering, not the credit one; that is another, that now does not touch). At first the only coin in question was bitcoins and their interest for me was personal, an anthropological thing, "look at the Winklevoss twins with what they are messing with", and Silk Road and dark internet, all that world so novel of Tom Clancy. But now there are no longer just bitcoins, but practically any start-up that respects itself minimally is considering launching its Tokens (which are similar - but not necessarily the same - as the coins) as a way to finance itself. I find a certain poetry in that, in Europe, it is the canton of Zug that is centralizing, and with what success! ICOs (do you remember when you could hardly say hedge funds without mentioning Zug in the same sentence?).
And these ICOs under what legal regime could they take place in Spain? The Tokens They are essentially of three types: cryptocurrencies, currencies whose issuance and traffic are regulated by encryption techniques, regardless of any central bank; the utility tokens, that allow those who acquire them in exchange for monetary consideration (which may be in legal tender - or not), to access the good or the service that is intended to be created or launched with the financing received; and the token-values that allow those who acquire them in exchange for monetary consideration, to participate in the returns of the business of an entity.
And this is where I miss talking to Antonio. Because the first category of TokensCryptocurrencies, it is clear (the only clear thing, it must be) that they will be whatever they are, but neither their issuance nor their offering fall under the scope of regulation of securities issues, or financial services; and -probably, it seems to me- not the second category either, since the primary purpose of the token is to allow access to a good or service, although ambiguity begins when these Tokens they can be bought and sold on trading platforms and incorporate, along with their access mechanism value, a speculation value; With the third category, I try to imagine what Antonio's good sense would say: if he walks like a duck… he flies like a duck… he squawks like a duck…
And actually, something very similar is what the SEC has recently come to say (July 25), recalling that the Tokens will securities if they satisfy the so-called "test of Howey"
- Does the unit offered require the investment of money or assets?
- Does the unit offered consist of the investment of money or assets so that the investor's return is established based on the collective results?
- Is the unit offered offered with an expectation of returns?
- Are these returns the result of the effort of the issuer of the token, or from a third party?
And if the answer to all the previous questions is yes…. Will be called token, but its emission is governed by the Securities Act, and the intermediation in its offer and negotiation most likely requires prior administrative authorization.
But this is the Americans. And we in Madrid, how do you see it, Antonio?
María Gracia Rubio de Casas. RdC Lawyers. Specialists in regulation of financial service providers. Fintech activity.