Responses to ESMA Call for Evidence on Investment Using Virtual Currency or Distributed Ledger Technology Published

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Earlier this year, the European Securities and Markets Authority (“ESMA”) published a “call for evidence [on] investment using virtual currency or distributed ledger technology.”[1]  ESMA established July 21, 2015 as the deadline for market participants and other stakeholders to respond to the call for evidence and to submit feedback and any additional information on the following topics:

  1. virtual currency investment products, e., collective investment schemes or derivatives such as options and contracts for differences that have virtual currencies as an underlying or invest in virtual currency related businesses and infrastructure;
  2. virtual currency based assets/securities and asset transfers, e., financial assets such as shares, funds, etc. that are exclusively traded using virtual currency distributed ledgers (also known as blockchains); and
  3. the application of the distributed ledger technology to securities/investments, whether inside or outside a virtual currency environment.

Respondents to the call for evidence included various major financial institutions and significant participants in the bitcoin and virtual currency markets.[2] Among other topics, many responses discussed how distributed ledger technology may be used to record ownership of essentially any type of financial asset. Such a distributed ledger could facilitate nearly immediate transactions and settlement. Several responses also addressed “smart contracts,” in which multiple stages of a transaction could be initially encoded and subsequently triggered by external factors. For example, a smart contract could be designed to transfer from one account to another, at a future date, an amount of money determined by the price of a particular security on that date. A trusted data provider could relay that price, when known, to the smart contract, which then would automatically perform the appropriate transfer of money and terminally settle the transaction. More complex contractual mechanisms, including various legal requirements and ISDA standards, could be encoded into a smart contract as well.

[1] The call for evidence (and related responses) is available at:  https://www.esma.europa.eu/press-news/consultations/investment-using-virtual-currency-or-distributed-ledger-technology.

[2] Respondents included, among others, ABN AMRO Clearing Bank N.V., CFA Institute, CME Group, DBT Labs, Deutsche Bank, Digital Asset Transfer Authority, ECSDA (European Central Securities Depositories Association), Euroclear SA/NV, Intesa Sanpaolo S.p.A., Krypto FIN ry, LedgerX LLC, Lykke Corp, Modular FX Services Limited, NxtLegal.org, PAYMIUM, SWIFT, and Tradernet Limited.