The MFSA has on the 30th July 2018 issued a consultation paper on the Virtual Financial Assets rules for issuers of Virtual Financial assets. The closing date for submission was 13th August 2018 and now the MFSA is expected to issue the official chapter after taking into account the submissions which it has received as well as other consultations with relevant stake holders which it has carried out.
This paper is intended to form part of a rule book which will be entitled the ‘Virtual Financial Assets Rulebook’ and which will be divided into three chapters. This chapter applies to issuers of Virtual Financial Assets.
The first title of this chapter outlines the high-level principles which should guide issuers when issuing Virtual Financial Assets while title 2 sets out the general requirements for issuers which includes that the issuers must be legal persons and that the business is directed by two persons. Title 3 outlines the initial and ongoing requirements applicable to initial VFA offerings, which are mainly related to the requirements to register their white paper as well as the conditions to admit VFA assets on a DLT exchange. Title 4 provides details with regards to the administrative penalties and sanctions as well as the principles which will be guiding the MFSA when imposing administrative penalties.
This chapter also includes the MFSA’s interpretation on the transitory provisions provided for under Article 62(1)(a) of the Virtual Financial Assets Act.
This article will deal with Title 2 of Chapter 2 of the rule book which mainly deals with the general requirements for issuers.
Title 2 – Requirements for issuers
An issuer must be a legal person duly formed under any law in Malta. Its business must be directed or managed by at least 2 individuals. It must also commence the offering of its Virtual Financial Assets to the public or proceed to admit its VFAs to trading on a DLT exchange within 6 months from the date of registration of the white paper with the MFSA.
Prior to offering such a DLT asset to the public or admit the asset to trading, the issuer must undertake the financial instrument test to determine whether the DLT asset qualifies as a VFA. The financial instrument test must be signed by the board of administration of the issuer and endorsed by the VFA agent.
The MFSA will not be making any determinations of its own on the nature of the DLT asset but shall rely on the determinations made by the issuer and its VFA agent.
The issuer’s board of administration shall be responsible for ensuring that the issuer complies with its obligations under the rules and any guidelines issued by the MFSA. It also has an obligation to acquire and maintain sufficient knowledge and understanding of the issuer’s business to enable it to discharge its duties.
The board of administration must:
- act honestly and in good faith
- exercise reasonable care, skill and diligence
- exercise their powers in line with the law
- exercise their powers in an independent manner and without subordinating such powers to the will of others
- monitor the functions delegated to the issuer’s functionaries to ensure that they are performing their functions in accordance with their contractual obligations
- identify and manage the risks of the issuer and its activities
- continuously monitor compliance with the requirements related to cyber security, record keeping and IT infrastructure
- avoid conflicts of interest wherever possible and where it is not possible disclose such a conflict
- establish a good governance framework
- be responsible for the issuer’s compliance with its AML / CFT requirements
The Board of administration of the issuer must inform itself of the activities of the issuer and have a proper understanding of its financial condition. The delegation of powers to third parties will not absolve the board of administration from the duty to supervise the discharge of such delegated functions.
Minutes taken during meetings of the board of administration are to be held in Malta at the issuer’s registered address or at any other place as may be agreed with the MFSA.