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• Some NFTs may also qualify as investment products under the Italian Consolidated Financial Act triggering additional licensing and other obligations. "Investment products" encompass MiFID instruments as well as "any other form of investment of a financial nature". The Italian regulator has clarified that an 'investment of a financial nature' is one entailing all of the following: (i) a capital disbursement; (ii) the expectation of a financial gain; and (iii) the assumption of a risk directly linked and correlated to the capital disbursement. An NFT's features would need to be carefully considered to see if it would meet these conditions. Japan • In Japan, while fungible tokens are regulated as security tokens or cryptoassets under the financial regulations, and dealing with them triggers certain licensing requirements, the non-fungible nature of NFTs means that they usually do not have a settlement function and therefore will not qualify as regulated cryptoassets. • As a result, many NFTs are not specifically regulated, and dealing with them does not trigger any licensing requirements. NFTs linked to trading cards or in-game items recorded on the blockchain are most common in Japan, primarily because the Japanese online gaming market is one of the biggest and most mature globally. • Despite not being caught by specific financial regulations, NFTs issued as in-game items do raise issues in relation to the Act Against Unjustifiable Premiums and Misleading Representations and gambling crime under the Criminal Code. Therefore, recently the Blockchain Contents Association and the Japan Cryptocurrency Business Association have each formulated guidelines concerning NFTs. Luxembourg • NFTs are not currently specifically regulated in Luxembourg. However, depending on the features and purpose of an NFT, certain activities in respect of such NFT could fall within one or more of the existing regulatory frameworks: 1. Where an NFT qualifies as a financial instrument, a number of activities including the buying, selling, intermediation as well as certain ancillary services in respect of such financial instrument may trigger a licensing requirement as an investment firm. Additionally, any other related financial sector activity performed in Luxembourg (e.g. custody or lending of financial instruments) may trigger licensing requirements and create certain regulatory and prudential obligations. 2. Where an NFT qualifies as electronic money, the issuer may trigger a licensing requirement as an electronic money institution and be subject to ongoing obligations, including conduct of business rules. 3. The issuance of NFTs which qualify as units of a collective investment undertaking could trigger a licence requirement as an undertaking for collective investment for the issuer or its management company under the relevant Luxembourg investment funds and AIFM laws and regulations. • Pursuant to Luxembourg's AML legislation as adapted following AMLD5 and relevant FATF guidance on virtual assets, a virtual asset means "a digital representation of value (including a virtual currency), that can be digitally exchanged, or transferred, and can be used for payment or investment purposes" with the exception of virtual assets which constitute electronic money or financial instruments. It is possible that certain NFTs may fall within this definition. • Firms who are established or provide services in relation to virtual assets in Luxembourg, including exchange, transfer, safekeeping and administration and the participation in and provision of financial services related to an offer of virtual assets, are subject to a registration requirement as a virtual asset service provider with the Commission de Surveillance du Secteur Financier and must comply with relevant AML obligations. NON-FUNGIBLE TOKENS: THE GLOBAL LEGAL IMPACT CLIFFORD CHANCE 9PDF Image | NON-FUNGIBLE TOKENS GLOBAL LEGAL IMPACT
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