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12 CLIFFORD CHANCE NON-FUNGIBLE TOKENS: THE GLOBAL LEGAL IMPACT commodity token). "Crypto assets" expressly include a DLT record serving as a representation of ownership. Therefore these regulations will only apply to the extent NFTs become tradable through a digital assets exchange, and such NFTs are promoted or offered (or associated with other financial activities conducted) within the UAE. It is unlikely in the near term that NFTs listing on digital assets exchanges will be practical given their unique and non-fungible nature. Where an NFT is subject to a brokerage arrangement or peer to peer transfer (whether organised through an online platform or not) – this is unlikely to be an "exchange" to which the current UAE rules are intended to apply. Notwithstanding the above, it remains possible that activities in the UAE in respect of NFTs (including for example, brokerage) will be subject to AML compliance responsibilities, which would need to be assessed depending on the nature of the underlying asset and the size of the transaction. • The Abu Dhabi Global Market (ADGM), a growing financial free zone in the UAE, has become a leading regional zone for virtual assets business. The ADGM has developed its own regulations on "virtual assets" and it licenses firms to conduct regulated activities in respect of virtual assets separately to other parts of the UAE. However, again, these rules are unlikely to apply in respect of NFTs. The definition of a "virtual asset" refers to a digital representation of value that can be digitally traded and functions as (1) a medium of exchange; and/or (2) a unit of account; and/or (3) a store of value. Unlike the UAE rules, this does not expressly include a "representation of ownership". Therefore NFTs are arguably not captured. However, to the extent a particular NFT is determined a constitute a virtual asset, the ADGM's Financial Services Regulatory Authority only permits firms to conduct activities in respect of "Accepted Virtual Assets" – which must satisfy a number of criteria (including maturity and market cap). These criteria are unlikely to be satisfied by NFTs. UK • NFTs are not currently specifically regulated in the UK. However, certain activities in respect of certain cryptoassets (which may include an NFT depending on its features) could fall within one or more of the existing regulatory frameworks: 1. where cryptoassets qualify as regulated investments (such as shares, bonds, units in collective investment schemes, or derivatives), the buying, selling, intermediation and certain ancillary services in respect of such regulated investments would trigger a licensing requirement and ongoing conduct of business obligations; 2. where the cryptoasset qualifies as electronic money in circumstances where it represents a claim on the issuer for pre-paid electronic spending power, the issuer will trigger licensing requirements and ongoing conduct of business obligations; 3. under the UK's AML legislation, cryptoassets are defined as "a cryptographically secured digital representation of value or contractual rights that uses a form of DLT and can be transferred, stored or traded electronically", and activities that amount to converting cryptoassets to other cryptoassets or cash into cryptoassets would trigger registration requirements. Such regulatory requirement is also triggered by intermediating or arranging such exchanges. • Whether an NFT qualifies as a cryptoasset under the UK's AML legislation requires careful consideration, particularly if, based on its characteristics, it amounts to a representation of value or contractual rights. • There are various proposed regulatory changes currently being consulted on in the UK, including around the regulatory perimeter applicable to cryptoassets and stablecoins and extending the scope of the financial promotions regime to apply to currently out-of-scope cryptoassets which might impact NFTs.PDF Image | NON-FUNGIBLE TOKENS GLOBAL LEGAL IMPACT
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