Digital Assets businesses in Thailand

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Digital Assets, which comprise of Cryptocurrencies and Digital Tokens (e.g. those raised through so-called ICOs or token crowd sales), are regulated both related to the offering of Digital Tokens to the public and the operation of Digital Asset Businesses.

Offering of Digital Tokens to the Public

An issuer must obtain prior approval from the Office of the SEC before offering its Digital Tokens to the public and must file a registration statement and draft prospectus to the Office of the SEC. The offering of Digital Tokens can only be done once the registration statement and the prospectus have become effective and can only be done through SEC approved ICO Portal to investors.

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Under the latest draft regulations, which may be subject to change; the offering of utility tokens that do not have characteristics for raising funds that could be utilized since the first date of offering, will be exempted from offering requirements.

For cross-border deals, including outbound or inbound investment or outbound or inbound offering of tokens, careful considerations under this law and other relevant laws including exchange control law and tax must be done on a case-by-case basis.

Operation of Digital Asset Businesses

Digital Asset Businesses include (1) Digital Asset Exchange2, (2) Digital Asset Broker3, and (3) Digital Asset Dealer (4), or any other businesses as designated by the Minister of Finance. All these operators must obtain an approval from the Ministry of Finance (MOF) through the Office of the SEC and must comply with certain regulatory requirements.

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Under the latest draft regulations, which may be subject to change; the provision of services as a center for (i) trading Cryptocurrencies that are considered as a stable coin/reference coin ( i.e. Cryptocurrencies of which the value always pegs with and equals to the specified value of Thai Baht, without the element of fluctuation), and (ii) exchanging utility tokens with the same type of other utility tokens that could be immediately utilized, will not be regulated under this law.

What are the implications?

Some key implications include…

…for Entities planning to issue Digital Tokens

  • Public offering of newly offered Digital Tokens must be done by a company established in Thailand.
  • Issuer must file a registration statement and a draft prospectus to obtain approval from the Office of the SEC prior to the offering.
  • Offering must only be done through an approved ICO Portal
  • Restrictions on the investment levels of individual investors may apply

…for Entities planning to act as an ICO Portal

  • An ICO Portal business requires approval from the Office of the SEC.
  • ICO Portals will be considered as ‘Financial Institutions’ under AML/CTF laws and must comply with several obligations, including KYC/CDD and transaction reporting, etc

…for Operators of Digital Assets Businesses

  • Prior approval from the SEC for relevant types of businesses, namely Digital Asset Exchange, Digital Asset Broker, and/or Digital Asset Dealer, must be obtained and several requirements must be complied with prior to the commencement of the business operation such as maintaining sufficient funds to operate the business, proper KYC/CDD, cyber security, and for certain types of business operators, requirements regarding asset safekeeping and fair marketplace.
  • For existing business operators, there is a 90-days transitional period (i.e. with the current deadline being 14 August 2018) to apply for approval and to bring their businesses into compliance with the new regulatory requirements.

See this pdf for details on the underlying regulations and for tax implications.

 

Komkrit Kietduriyakul is a Baker McKenzie partner in Bangkok. He is a recognized leader in the derivatives, structured finance and capital markets fields, as well as project finance and bankruptcy.
Kullarat Phongsathaporn is a partner in Baker McKenzie’s Bangkok office. She leads the FinTech team at Bangkok office, serves on the Firm's Asia Pacific FinTech cluster, and acts as one of the global Firm's Innovation Ambassadors.
Nopporn Charoenkitraj
Nopporn Charoenkitraj is a tax partner in the Bangkok office of Baker McKenzie.