FinTech 2019 Comparisons

Last Updated June 06, 2019

Contributed By Walkers (Jersey)

Law and Practice

Authors



Walkers (Jersey) is a leading international firm that provides legal, corporate and fiduciary services to global corporations, financial institutions, capital markets participants and investment fund managers. Clients are Fortune 100 and FTSE 100 companies as well as the most innovative firms and institutions across the financial markets. The firm has ten offices, in Bermuda*, the British Virgin Islands, the Cayman Islands, Dubai, Guernsey, Hong Kong, Ireland, Jersey, London and Singapore. It advises businesses partnering with or investing in FinTech firms as well as financial institutions and asset managers developing their own FinTech products and services. The FinTech group, which consists of 14 partners and 17 other qualified lawyers globally, also works closely with policymakers, regulators and governments to facilitate appropriate legislation and regulation that keeps pace with innovation. Walkers covers FinTech's core financial industry sectors – asset management, investment, banking, finance, insurance and payments – with particular expertise in advising businesses specialising in blockchain, digital assets and alternative model finance. *Walkers works in exclusive association with Kevin Taylor, trading as 'Walkers Bermuda', a full-service commercial law firm providing advice on all aspects of Bermuda law.

Jersey has been a leading international finance centre for more than 50 years and has developed a reputation as an innovative, business-friendly jurisdiction. Thanks to a forward-thinking approach, Jersey is at the forefront of wealth management, funds, capital markets and banking, plus the specialist areas of FinTech, philanthropy and socially responsible investing.

Over the last 12 months, Jersey has been at the forefront of innovation and disruption in the FinTech sector:

  • Initial Coin Offering (ICO) Guidance Note – in July 2018, the Jersey Financial Services Commission (the "JFSC") issued guidance for the path to regulatory approval for ICOs in Jersey. The guidance note represents an innovative and balanced approach to the treatment of this activity, enabling ICOs to be launched in Jersey with a number of controls in place to help reduce some of the risks associated with them. Whilst, under this framework, the JFSC does not regulate the ICOs or the companies that issue them, it does require the companies to satisfy certain minimum standards and to appoint a regulated Trust and Company Service Provider to administer the company.

Binance Jersey

Launched in January 2019, Binance launched a new platform for fiat-crypto trading of Euros (EUR) and British Pounds (GBP) to cryptocurrency (Bitcoin and Ethereum), giving investors in Europe and beyond easy access to the rapidly evolving cryptocurrency market, and an alternative to standard currency (fiat) exchange.

Global Financial Innovation Network ("GFIN")

formally launched in January 2019 by an international group of financial regulators and related organisations (including the JFSC), the GFIN seeks to provide a more efficient way for innovative firms to interact with regulators, and aims to create a new framework for co-operation between financial services regulators on innovation-related topics, sharing different experiences and approaches.

In the next 12 months, the UK's departure from the European Union ("EU") poses uncertainty internationally. However, Jersey is well placed to maximise its position as a well-regulated international financial centre. Upon leaving the EU, the UK will become a "third country". As an independent jurisdiction currently part of neither the UK nor the EU, Jersey is already recognised as a third country for many purposes, not least as an "equivalent jurisdiction" for GDPR purposes. As such, there is an opportunity for Jersey to become a vehicle for the UK into Europe.

Industry and regulators are also expected to continue to balance the opportunities and challenges of crypto-currencies and FinTech, including in relation to anti-money laundering, investor protections, and maintaining Jersey's reputation as a first-class international financial centre.

With respect to blockchain, Jersey vehicles' involvement is typically as crypto funds (such as the world's first regulated Bitcoin investment fund, GABI (formerly the Global Advisors Bitcoin Investment fund), funds investing in blockchain projects, and token issuers in the context of ICOs (such as Jersey's first ICO, the AAA Reserve Currency (formerly the ARC Reserve Currency)), and joint venture vehicles developing blockchain projects.

The financial services sector in Jersey is regulated by the JFSC, which is responsible for the regulation, supervision and development of the financial services industry in the Island of Jersey, including banking, collective investment funds, fund services businesses, and trust and company service-providers.

In summary, the regulatory laws provide for a licensing process whereby entities and individuals conducting regulated activity are required to obtain a licence or be registered with the JFSC in order to conduct regulated activities.

In addition to the regulatory laws generally applicable for regulated activities, Jersey also has specific regulation and/or guidance applicable to the FinTech sector.

The Proceeds of Crime (Supervisory Bodies) (Virtual Currency Exchange Business) (Exemption) (Jersey) Order 2016 (the "Virtual Currency Exchange Regulations") introduced a regulatory regime for virtual currency, requiring virtual currency exchanges to comply with Jersey laws relating to anti-money laundering and countering the financing of terrorism ("AML/CFT").

Whilst not regulating initial coin offerings, the JFSC's ICO Guidance Note places certain conditions on ICO issuing companies, including their compliance with relevant AML/CFT requirements and a requirement for ICO issuing companies to have their annual accounts audited and filed with the Registrar of Companies in Jersey (irrespective of their status as either a public or a private company).

Furthermore, in 2018 the JFSC amended its Sound Business Practice Policy to reflect that ICOs (whilst not regulated by the JFSC) constitute a 'sensitive activity'. Accordingly, ICO issuing companies are required to maintain and adopt systems, controls, policies and procedures for customer take-on and redemption, profiling and transaction monitoring at enhanced levels, ensuring internal and external reporting of suspicions of money laundering and financing terrorism activity.

The JFSC does not differentiate between FinTech participants and legacy participants. The JFSC's licensing structure applicability centres on the activities conducted by the participant. A FinTech participant shall fall within the JFSC's regulatory scope if it conducts a licensed activity.

The Virtual Currency Exchange Regulations provide for a regulatory sandbox to foster innovation by lowering the compliance burden for start-up virtual currency exchanges. Exchanges with a turnover of less than GBP150,000 per calendar year are not subject to the registration requirements (and associated costs) of the Virtual Currency Exchange Regulations.

Jersey's sandbox approach fosters innovation by lowering the compliance burden on start-ups, and allows such virtual currency exchanges to test their exchange mechanisms without a heavy regulatory burden.

The JFSC is responsible for the regulation, supervision and development of the financial services industry in the Island of Jersey for the following:

  • banking;
  • collective investment funds;
  • fund services business;
  • insurance business;
  • general insurance mediation business;
  • investment business;
  • money service business; and
  • trust and company service-providers.

The JFSC has entered into Memoranda of Understanding (or statements of co-operation/letters of intent) on regulatory matters with a number of fellow regulatory authorities. These Memoranda cover regulatory assistance to be given in the context of:

  • new applications for licensing by financial institutions;
  • investigations into regulatory offences such as insider dealing; and
  • general enquiries that are relevant to the fitness and properness of registered institutions.

The JFSC has entered into such Memoranda with a wide range of countries, from Australia and Gibraltar to Luxembourg and the United States of America.

The JFSC does not require a Memorandum of Understanding to be in place with an overseas regulatory authority before it will co-operate with or share information with that authority. The purpose of a Memorandum of Understanding is to establish an agreed mechanism under which the signatories commit to using their statutory powers of co-operation to assist each other.

The JFSC's Outsourcing Policy and Guidance Notes (the "Outsourcing Policy") provide guidance to regulated entities (a "Registered Person") on the establishment of outsourcing arrangements and the outsourcing of material functions or activities.

The Outsourcing Policy is based on the basic premises that (i) a Registered Person remains fully responsible and accountable to the JFSC for any outsourced activity and (ii) a Registered Person must not, as a consequence of any outsourcing arrangements, become devoid of functions to the extent that it becomes a "letter box" entity.

The Outsourcing Policy operates on the basis of six core principles, as follows:

  • Fit and Proper Service Provider – a Registered Person must satisfy itself that any service provider to whom it outsources activities is fit and proper and will perform the outsourced activities in a responsible, professional and suitable manner.
  • Written Outsourcing Agreement – a Registered Person must have appropriate written agreements in place with any service providers to whom it outsources activities.
  • Monitoring and Assessing Service Provider – a Registered Person must maintain the capacity, resources, policies and procedures to ensure that any outsourced activities are being performed adequately and the service-provider remains fit and proper.
  • Termination of Outsourcing Arrangements – a Registered Person must put arrangements in place that allow it to terminate its outsourcing arrangements without undue delay and manage the consequences of any such termination appropriately.
  • Prior Approval of JFSC – a Registered Person must provide the JFSC with adequate prior written notice of its intention to outsource activities or make material changes to any existing outsourcing arrangements. A Registered Person must not enter into any outsourcing arrangement until it has received prior written confirmation from an officer of the JFSC that the JFSC has no objection to such outsourcing arrangements.
  • JFSC's Regulatory Powers – a Registered Person must ensure that nothing in any outsourcing arrangements prevents or restricts the JFSC’s ability to exercise its legal or regulatory powers.

As digital assets are currently not regulated, the JFSC does not have enforcement powers over digital assets, unless they fall within a regulated activity.

Jersey has anti-money laundering legislation in place requiring entities that conduct relevant financial business to comply with the anti-money laundering requirements. This legislation does not differ between legacy participants and FinTech participants.

Entities conducting relevant business are required to comply with certain AML/CFT requirements, pursuant to the Proceeds of Crime (Jersey) Law 1999, as amended, the Money Laundering (Jersey) Order 2008 (the "Money Laundering Order") and the Handbook for the Prevention and Detection of Money Laundering and the Financing of Terrorism (the "AML/CFT Handbook") (together, the "AML/CFT Laws").

The Money Laundering Order ensures that the obligations that are imposed on financial services businesses to prevent and detect money laundering take account of changes in money laundering methods and techniques, and protect and enhance the reputation and integrity of Jersey in commercial and financial matters.

The AML/CFT Handbook establishes standards that match international standards issued by the Financial Action Task Force in relation to anti-money laundering and countering the financing of terrorism.

In addition, Jersey also has data protection legislation – the Data Protection (Jersey) Law 2018 (the "Data Protection Law"), which requires entities within scope to comply with the data protection principles defined in the legislation.

The Data Protection Law is based around the following six principles of ‘good information handling’:

  • fair, lawful and transparent processing – personal data is to be processed lawfully, fairly and in a transparent manner;
  • purpose limitation – personal data must be collected for specific, explicit and legitimate purposes and, once collected, not further processed in a manner incompatible with those purposes;
  • excessive data collection – personal data collected must be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
  • accuracy of data – personal data must be accurate and, where necessary, kept up to date, with reasonable steps being taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;
  • storage limitation – personal data must be kept in a form that permits the identification of data subjects for no longer than is necessary for the purposes for which the data are processed; and
  • data security, integrity and confidentiality – personal data must be processed in a manner that ensures the appropriate security of the data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

The use of social media and similar tools is not currently regulated in Jersey, apart from the previously defined legislation, such as the Data Protection Law.

Jersey-based service-providers (eg, auditors or administrators) to digital assets entities are required to comply with Jersey law. If any person who is resident in Jersey has a suspicion that a transaction involving a Jersey entity contains the proceeds of criminal conduct, that person is required to report such suspicion, pursuant to the Proceeds of Crime (Jersey) Law 1999, as amended.

In addition, ICO issuing companies are required to have their annual accounts audited and filed with the Registrar in accordance with Article 108 of the Companies (Jersey) Law 1991, irrespective of their status (whether a public or private company).

The offering of digital assets is not currently regulated, unless the activity falls within the definition of financial services business that is currently regulated. Where an entity's activities fall within the scope of the regulated activities, its operations will be subject to supervision by the JFSC.

Whilst Initial Coin Offerings are not regulated by the JFSC, ICO issuing companies are required to comply with certain conditions (as set out in the JFSC's ICO Guidance Note and such companies' consent certificates) that are designed to ensure that they meet specific standards in terms of governance, investor disclosure and AML/CFT compliance.

Jersey legislation does not expressly contemplate robo-advisers. To the extent that a legal entity holds software that provides the robo-adviser function and that legal entity is a Jersey entity or a non-Jersey entity registered in Jersey, it may be required to be registered or licensed by the JFSC.

As far as is known, no Jersey service-providers are introducing robo-advisers at this stage.

Best execution of customer trades is not applicable in Jersey.

Banking business in Jersey is governed by the Banking Business (Jersey) Law 1991, as amended. The provision of loans is also within the scope of Jersey's AML/CFT legislation, which does not distinguish between the recipients of the loans.

The underwriting process is currently not regulated in Jersey. Instead, the JFSC may require lenders to be in compliance with the laws of the jurisdiction in which the underwriting is taking place (which is typically onshore).

This is not applicable in Jersey.

The syndication of loans takes place onshore rather than in Jersey. Accordingly, to the extent that the Jersey lending vehicle is involved in a syndication, it must be in compliance with the laws of such onshore jurisdiction.

Payment processing is not currently regulated in Jersey. Payment processors must use existing payment rails at this stage.

Jersey-based administrators must hold a licence, pursuant to the Financial Services (Jersey) Law 1998, as amended (the "FS Law").

The carrying on of administration business by an Administrator requires examination of the nature of the services that will be provided, as well as the classification of the person to whom services will be provided. Both are key in assessing the regulation to which the Administrator will be subject and whether a relevant exemption will apply, as set out below:

  • Trust Company Business ("TCB") – an Administrator who carries on 'trust company business' will require registration under the FS Law (unless an applicable exemption applies). Such Administrator must also comply with the JFSC's Code of Practice for Trust Company Business (the "TCB Code").
  • Fund Services Business ("FSB") – an Administrator who acts as an administrator in relation to certain funds (ie, services provided to a collective investment fund or an unregulated fund) would be carrying on fund services business under the FS Law and, accordingly, would require registration under the FS Law for this purpose. If so, the Administrator would also be required to comply in full with the JFSC’s "Code of Practice for Fund Services Business" (the "FSB Code") and any related requirements.
  • Investment Business ("IB") – an Administrator who carries on 'investment business' will require registration under the FS Law (unless an applicable exemption applies). Such Administrator must also comply with the JFSC's Code of Practice for Investment Business (the "IB Code").

The Financial Services (Investment Business (Restricted Investment Business – Exemption)) (Jersey) Order 2001 and the Financial Services (Trust Company Business (Exemptions No.5)) (Jersey) Order 2000 (the "PIRS Orders") provide exemptions from regulation under the FS Law for the provision of administration investment business and trust company business services, respectively, in relation to a professional investor regulated scheme. An Administrator will be exempted from the FS Law when it is providing services as described in Article 2(4) of the FS Law to a professional investor regulated scheme as defined in Article 3 of the Financial Service (Investment Business (Restricted Investment Business – Exemption)) (Jersey) Order 2001. There is no applicable exemption in respect of fund services business.

An investment scheme is a professional investor regulated scheme if relevant consent has been granted, pursuant to the Control of Borrowing (Jersey) Order 1958, and each investor in the scheme has made a minimum subscription of GBP250,000 and/or is otherwise a professional investor as defined in the PIRS Orders, and has signed an investment warning.

There are a number of provisions being incorporated into fund administration documents, many of which stem from regulatory obligations and, in particular, Jersey's AML/CFT legislation. Essentially, fund administration agreements must include provisions requiring the administrator to provide to either the regulated fund itself or the JFSC information and documentation that is relevant to anti-money laundering requirements.

Jersey's AML/CFT legislation also requires the fund administrator to maintain records of anti-money laundering documentation for at least five years after the conclusion of a transaction. These agreements also require the administrator to report any suspicions it may have in relation to money laundering potentially occurring through the fund to the fund's money laundering reporting officer.

In addition to AML/CFT requirements, Jersey fund administration agreements will often contain provisions requiring the administrator to safeguard and treat personal data in accordance with certain prescribed standards, including the Data Protection Law.

A Jersey regulated fund administrator has certain reporting obligations to the JFSC regarding the operation of a fund that it administers. A licensed fund administrator must immediately give the JFSC written notice if it knows or has reason to believe that a fund for which it provides services (i) is or is likely to become unable to meet its obligations as they fall due; (ii) is carrying on business otherwise than in accordance with any laws; or (iii) is carrying on business in a manner that is or is likely to be prejudicial to investors or creditors of the fund, giving its reason for that knowledge or belief.

Jersey’s defences against the laundering of criminal funds and terrorist financing rely heavily on the vigilance and co-operation of the finance sector. Specific financial sector legislation (ie, the Money Laundering (Jersey) Order 2008) is therefore also in place, covering a person carrying on a financial services business in or from within Jersey, and a Jersey body corporate or other legal person registered in Jersey carrying on a financial services business anywhere in the world.

Jersey's primary legislation on money laundering and the financing of terrorism includes:

  • the Proceeds of Crime (Jersey) Law 1999 (as amended) (the "Proceeds of Crime Law");
  • the Terrorism (Jersey) Law 2002 (the "Terrorism Law");
  • the Money Laundering and Weapons Development (Directions) (Jersey) Law 2012 (the "Directions Law"); and
  • the Terrorist Asset-Freezing (Jersey) Law 2011, Al-Qa’ida and Taliban (United Nations Measures) (Channel Islands) Order 2002, EU Legislation (Sanctions – Afghanistan) (Jersey) Order 2014, and EU Legislation (Sanctions – Al Qaida) (Jersey) Order 2014 (together, the "Terrorist Sanctions Measures").

The International Stock Exchange in the Channel Islands ("TISE") permits trading in listed securities.

Trading is conducted every weekday, excluding public holidays, and takes place on a continuous basis during the normal trading hours of 09.00 to 16.30. Trading Members of the Exchange may also trade outside of these hours.

Orders and quotations can only be entered into the trading system by a Trading Member, and may be added, deleted or amended on the trading system by them between 08.00 and 09.00 (ie, prior to normal trading hours). While there are no restrictions on viewing the information contained in the trading system, investors and issuers who wish to trade at a price displayed must do so through a Trading Member.

A Trading Member may register as a Market Maker in any number of listed securities and, if so, must enter and maintain two-sided quotations on the trading system, with quotations reasonably related to prevailing market conditions and within allowable spreads while also at least in the specified minimum quoted size for the security. They must also actively offer to buy from and sell to an enquiring Trading Member at the price and in a size up to that which is displayed.

Trading in shares may be settled via Euroclear (incorporating CREST and CREST Residual), Clearstream or an alternative settlement system approved by TISE before listing.

Debt securities are listed on the International Stock Exchange in the Channel Islands under Chapter 6 of the Listing Rules. Equity securities are listed on the International Stock Exchange in the Channel Islands under Chapter 2 of the Listing Rules.

The Virtual Currency Exchange Regulations made virtual currency exchanges subject to Jersey's AML/CFT legislation.

By treating virtual currency as a currency, Jersey's current AML/CFT regulation was extended to virtual currencies, demonstrating Jersey's innovative ability to adapt quickly to the disruption posed by FinTech innovations within existing frameworks.

Debt securities and equity securities can be listed on TISE in the Channel Islands. The Listing Rules of TISE contain the application procedures and the listing document requirements.

An issuer must produce a Listing Document in relation to the application, and must comply with the requirements relating to Listing Documents set out in the Listing Rules.

TISE may waive, modify or not require compliance with Listing Rules in individual cases.

The listing process essentially involves the review and approval of an offering document, which is referred to as listing particulars, and certain ancillary documents, which must demonstrate compliance with the Listing Rules. The listing particulars must include all information necessary for an investor to make an informed decision on its investment.

In unusual transactions, TISE can be contacted at an early stage, to provide informal and confidential guidance as to the suitability of a proposed listing application.

Order-handling rules is not applicable in Jersey.

This is not applicable in Jersey.

This is not applicable in Jersey.

This is not applicable in Jersey.

There are currently no regulations in Jersey specifically regulating the creation and usage of high frequency and algorithmic trading; however, such activities may fall within the definition of financial services business and therefore be subject to supervision by the JFSC.

Please see 8.1 Creation and Usage Regulations. There are currently no regulations in Jersey specifically regulating the creation and usage of high frequency and algorithmic trading.

This is not currently applicable in Jersey.

This is not currently applicable in Jersey.

Jersey-domiciled investment funds that engage in these activities will need to be registered under the Collective Investment Funds (Jersey) Law 1988, as amended (the "CIF Law") if they are open-ended funds. Jersey-domiciled investment managers for such funds will need to be registered or licensed under the Financial Services (Jersey) Law 1998, as amended.

This is not currently applicable in Jersey.

The Jersey-domiciled operators of such research platforms are currently not subject to registration, unless such platforms are also providing investment advice, in which case the operator of the platform will need to be registered or licensed under the Financial Services (Jersey) Law 1998, as amended.

The spreading of rumours and other unverified information is currently not regulated in Jersey. The JFSC would require the Jersey-domiciled operator of such a platform to comply with the laws of the jurisdiction in which the platform is operating.

Please see 9.2 Regulation of Unverified Information, above.

Jersey-based service-providers are required to comply with Jersey law. If any person who is resident in Jersey has a suspicion that a payment to a Jersey entity (by way of subscription or otherwise) contains the proceeds of criminal conduct, that person is required to report such suspicion, pursuant to Jersey's AML/CFT legislation.

As far as is known, there are no specific and material InsurTech underwriting initiatives or developments.

Any person carrying on insurance business in Jersey is required to hold a valid licence issued for that purpose under the Insurance Business (Jersey) Law 1996, as amended.

RegTech providers may become regulated depending on their activities. Where an entity's activities fall within the scope of the regulated activities, its operations will be subject to supervision by the JFSC.

There are a number of provisions being incorporated into contracts with technology providers, generally related to data protection, the protection of IP rights and confidentiality. The contracts will often have provisions requiring the technology-providers to safeguard and treat personal data in accordance with certain prescribed standards under the Data Protection Laws.

Jersey-based service-providers are required to comply with Jersey law. If any person who is resident in Jersey has a suspicion that a payment to a Jersey entity (by way of subscription or otherwise) contains the proceeds of criminal conduct, that person is required to report such suspicion, pursuant to Jersey's AML/CFT legislation.

Jersey is one of the jurisdictions at the forefront of FinTech innovation. Jersey's funds regime has been used to establish innovative alternative investment funds, including:

  • GABI – the world's first regulated bitcoin investment fund, established as a Jersey Expert Fund in 2014;
  • CoinShares Fund – investing in ICOs and other digital assets, established as a Jersey Private Fund; and
  • SoftBank Vision Fund – with c. USD100 million or more in commitments for technology-focused investments, ranging from the internet-of-things and mobile apps to cloud technology and artificial intelligence (AI), which is a Jersey Private Fund.

The above funds are testament to Jersey's well-tested structures, with which both managers and investors are familiar and comfortable.

The Virtual Currency Regulations (effective since 2016) require virtual currency exchanges to comply with Jersey AML/CFT legislation, and the JFSC's ICO Guidance Note (published in July 2018) provides guidance on the approval process for companies issuing Initial Coin Offerings.

There is no formal guidance on whether the JFSC considers blockchain assets to be a form of regulated financial instrument.

The JFSC's ICO Guidance notes that there is no universally recognised terminology for the classification of crypto tokens, either in Jersey or internationally. However, for the purposes of Jersey law, tokens issued pursuant to an ICO will be classified as either a "security" or not. In determining whether tokens will be classified as a "security" for the purposes of Jersey law, the JFSC will consider the economic function, underlying purpose and transferability of such tokens. In brief summary:

  • a security token would typically have characteristics associated with an equity or debt security, including a right to participate in the profits of the ICO issuer, a claim on the ICO issuer's assets and/or an expectation of a return on the amount paid for the tokens; and
  • a non-security token would typically either confer a usage right to a product or service and have no economic rights (ie, a utility token), or be designed to provide a store of value and medium of exchange (ie, a crypto-currency token).

The JFSC's ICO Guidance Note provides guidance on how ICOs will be approved in Jersey through existing laws and regulation.

Although ICOs in Jersey are not regulated by the JFSC, the JFSC has established certain conditions that any issuer of an ICO registered in Jersey is required to satisfy. These are implemented through a consent granted by the JFSC, which any Jersey entity wishing to issue an ICO must obtain.

The consent requires ICO issuers to take certain measures to manage financial crime and investor risks, reflecting the principles of the JFSC, which are to have regard to:

  • the reduction of the risk to the public of financial loss due to dishonesty, incompetence, malpractice or the financial unsoundness of financial service providers; 
  • the protection and enhancement of Jersey's reputation and integrity in commercial and financial matters;
  • the best economic interests of Jersey; and
  • the need to counter financial crime both in Jersey and elsewhere.

The JFSC recognises the innovative potential of distributed ledger/blockchain technology and FinTech more generally, and supports efforts to innovate in FinTech responsibly in Jersey. However, the JFSC has also issued a public advisory to warn of the risks associated with initial coin offerings, including their highly speculative nature and the risks caused by ICO price volatility.

Where a Jersey ICO issuing company has been granted a consent by the JFSC under the Control of Borrowing (Jersey) Law 1947, it must be understood that the JFSC does not take any responsibility for the financial soundness of any schemes or for the correctness of any statements made or opinions expressed with regard to them.

The Virtual Currency Regulations (effective since 2016) require virtual currency exchanges to comply with Jersey AML/CFT legislation, subject to a regulatory sandbox for start-ups, which allows those virtual currency exchangers whose turnover does not exceed GBP150,000 to test their mechanisms without the burden of full regulatory compliance.

Jersey offers a wide range of fund products, including the following:

  • Jersey Private Fund ("JPF") – this regime (launched in April 2017) simplified and streamlined Jersey's fund offering. Based on industry feedback and an analysis of competitor products in other jurisdictions, the regime represents a welcome development in the product range offered by Jersey, and recognises the need for regulatory flexibility for private funds targeted at investors at a professional level of sophistication.

Jersey Private Funds can be marketed to a maximum of 50 professional or eligible investors, such as those investing a minimum of GBP250,000 (or currency equivalent).

  • Jersey Expert Fund – this regime is attractive to promoters wishing to establish funds aimed at sophisticated, institutional and high net worth investors.

A collective investment fund will qualify as an Expert Fund if each investor signs an acknowledgement of receipt of a prescribed form of investment warning and the Expert Fund is only offered to investors falling within one of the categories of "Expert Investor" (including investing a minimum of USD100,000 (or currency equivalent) or having a net worth exceeding USD1,000,000 (excluding that person's principal place of residence), amongst others).

Although Jersey Expert Funds are subject to a higher degree of regulation than Jersey Private Funds, Expert Funds are open to an unlimited number of investors, whereas JPFs can only be marketed to a maximum of 50 professional investors.

The JFSC has demonstrated that Jersey is open to innovative, cutting-edge investment structures, standing out against other competitor jurisdictions, using Jersey's existing funds product range.

Please see 12.5 Regulation of Blockchain Asset-trading Platforms, above.

Jersey's Data Protection Law (largely) applies the requirements of the EU's General Data Protection Regulation ("GDPR").

The transparency and immutability of data stored on the blockchain is potentially incompatible with the data protection requirements of the Data Protection Law / GDPR and therefore careful consideration must be given to the interaction between the blockchain and the Data Protection Law/GDPR.

However, blockchain technology also provides potential solutions and opportunities to comply with such new data protection requirements, including:

  • a hybrid of public and private blockchains to provide for data privacy;
  • the encryption and anonymisation of data held on the blockchain; and/or
  • the encryption of entries and the subsequent deletion of the relevant decryption keys in order to comply with the GDPR's right to be forgotten.

Blockchain may be disruptive but that does not mean it cannot be compliant with legal and regulatory requirements – indeed, it is in such innovation that new, disruptive solutions to legal and regulatory requirements may be found.

Although Jersey is not a member of the European Union, it has introduced the EU Legislation (Payment Services – SEPA) (Amendment) (Jersey) Regulations 2015 (the "Jersey SEPA Regulations") in order for Jersey banks to be able to participate in the Single European Payments Area ("SEPA"). This means that payments in Euros are able to be made by Jersey banks to and from banks in the SEPA that are subject to the protections and support of the SEPA rules.

By participating in SEPA, Jersey aims to increase the efficiency, and lower the costs, of cross-border payment processing within the EU/EEA, through the development of common standards, procedures and infrastructure.

The Jersey SEPA Regulations position Jersey to maximise the opportunities that the Payment Services Directive (PSD 2) – which extends SEPA to new types of payment services to create a digital single market within Europe – will bring for FinTech and wider industry.

Please see 12.8 Impact of Privacy Regulation on Blockchain, above.

Walkers

PO Box 72, Walker House
28-34 Hill Street, St. Helier
Jersey JE4 8PN
Channel Islands

+44 (0) 1534 700 700

+44 (0)1534 700 800

info@walkersglobal.com www.walkersglobal.com
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Law and Practice

Authors



Walkers (Jersey) is a leading international firm that provides legal, corporate and fiduciary services to global corporations, financial institutions, capital markets participants and investment fund managers. Clients are Fortune 100 and FTSE 100 companies as well as the most innovative firms and institutions across the financial markets. The firm has ten offices, in Bermuda*, the British Virgin Islands, the Cayman Islands, Dubai, Guernsey, Hong Kong, Ireland, Jersey, London and Singapore. It advises businesses partnering with or investing in FinTech firms as well as financial institutions and asset managers developing their own FinTech products and services. The FinTech group, which consists of 14 partners and 17 other qualified lawyers globally, also works closely with policymakers, regulators and governments to facilitate appropriate legislation and regulation that keeps pace with innovation. Walkers covers FinTech's core financial industry sectors – asset management, investment, banking, finance, insurance and payments – with particular expertise in advising businesses specialising in blockchain, digital assets and alternative model finance. *Walkers works in exclusive association with Kevin Taylor, trading as 'Walkers Bermuda', a full-service commercial law firm providing advice on all aspects of Bermuda law.

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