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10 CLIFFORD CHANCE NON-FUNGIBLE TOKENS: THE GLOBAL LEGAL IMPACT • Commercial activities not subject to a sector-specific regime and carried out with a profit-making aim in Luxembourg may trigger a general business licence requirement. The Netherlands • NFTs are not currently specifically regulated in the Netherlands. However, certain activities in respect of certain cryptoassets (depending on their features) could fall within one or more of the existing regulatory frameworks: 4. where an NFT qualifies as a financial instrument (e.g. as shares, bonds, units in collective investment schemes, or derivatives), the buying, selling, intermediation and certain ancillary services in respect of such financial instruments may trigger a licensing requirement as an investment firm (beleggingsonderneming); 5. where an NFT qualifies as electronic money (electronisch geld) in circumstances where it represents a claim on the issuer for pre-paid electronic spending power, the issuer may trigger licensing requirements as an electronic money institution (elektronischgeldinstelling); 6. where an NFT qualifies as an investment object (beleggingsobject), which is defined as "an item or object, a right to an item or object or a right to the full or partial return in cash or part of the proceeds of an item or object, (...) that is acquired other than for no consideration (e.g. for payment in kind), with the prospect of a return in cash and where the management of the object is mainly carried out by someone other than the acquirer", the offering and intermediation in respect of such investment object may trigger a licensing requirement as a financial service provider (financiëledienstverlener); and 7. where an NFT qualifies as a "virtual currency", which is defined in the Dutch implementation of the AMLD5 as "a digital representation of value that is not issued or guaranteed by a central bank or a public authority, is not necessarily attached to a legally established currency and does not possess a legal status of currency or money, but is accepted by natural or legal persons as a means of exchange and which can be transferred, stored and traded electronically", the activities that amount to (i) exchanging virtual currencies into cash, or vice versa, or (ii) safeguarding private cryptographic keys on behalf of its customers to hold, store and transfer virtual currencies may trigger registration requirements in the Netherlands. People's Republic of China (PRC) • Activities relating to cryptocurrencies and cryptoassets are strictly regulated and scrutinised in the PRC. Despite the absence of a unified regulatory framework, rules in respect of cryptoassets are scattered in ad hoc notices and circulars issued by the PRC financial regulators, as well as self-discipline organisations. The milestone regulation in this area is the Circular on Preventing Risks related to Initial Coin Offerings (ICO) (2017) issued by seven Chinese governmental agencies (including the PRC's central bank, the People's Bank of China) in September 2017 (the ICO Circular). The ICO Circular marked an unprecedented regulatory clampdown on cryptoassets which has been sustained in practice; since 2017 we have seen supervisory and enforcement actions taken in respect of crypto-related activities. • In May 2021, the National Internet Finance Association of China, the China Banking Association and the Payment and Clearing Association of China issued a joint statement reiterating the position in the ICO Circular that their member institutions (including banks and payment firms) should not offer any crypto-related services in the PRC. The statement also set out further specific restrictions and risk alerts, including around cryptocurrency exchange, investment and trading. • However, there is no clear-cut definition of cryptocurrency or cryptoasset under the laws of the PRC and whether an NFT qualifies as such may require a "substance over form" analysis. If NFTsPDF Image | NON-FUNGIBLE TOKENS GLOBAL LEGAL IMPACT
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