Mayer Brown
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March 10, 2023
 
 

Digital Assets Download – Hints of Spring: As the Northern Hemisphere’s winter begins to thaw, our latest Digital Assets Download turns to coverage of the latest in the UK’s “Tulip Case” (no, not those tulips), which has implications for developers of crypto asset software. In this issue, the global Mayer Brown team also covers statements from regulators in the US and Hong Kong. Finally, we’re thrilled to have guest commentary from Manoj Ramia, general counsel of Digital Asset, on his perspective for a regulatory approach to blockchain technologies.

For the Uninitiated: Digital Assets Download is a curated mix of insights and headlines that provide a Layer 3 Legal Perspective™ on the digital assets multiverse—created by Mayer Brown’s global Digital Assets, Blockchain & Cryptocurrency group. (Check out all of our previous editions of the Digital Assets Download.)

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Brief
 

Perspectives and insights from Mayer Brown lawyers and other thought leaders that touch on digital assets, decentralized finance, cryptocurrencies and related fields.

 

Crypto Liquidity Guidance Released by US Federal Banking Regulators

In February 2023, the US federal banking regulators released guidance on liquidity risks associated with banks receiving certain types of funding from crypto-asset-related entities (“Liquidity Guidance”). The Liquidity Guidance reemphasizes the skepticism that the federal banking regulators have expressed toward the crypto-asset sector and may make it even more difficult for crypto-asset-related entities to open bank accounts. In this Legal Update, we provide background on liquidity risk and discuss what the Liquidity Guidance means for banks and the crypto sector.

Hong Kong Gets Mixed Ratings in Latest FATF Report for AML Compliance

On February 17, 2023, the Financial Action Task Force (FATF) issued its first regular follow-up report on Hong Kong’s compliance with the FATF Recommendations. The FATF Recommendations are a globally recognized set of measures that combat money laundering and terrorist financing. In its report, FATF concluded that while Hong Kong has not yet implemented all the new requirements under Recommendation 15 for virtual asset service providers (VASPs), it has made sufficient progress in addressing the technical compliance deficiencies concerning the Designated Non-Financial Business or Profession (DNFBP) sector previously identified under Recommendation 28.

Stolen Crypto - UK Court of Appeal Opens Door to Software Developers' Legal Duties to Users

The roller coaster ride that is Tulip Trading v Wladimir van der Laan & Ors – as we have previously discussed – has taken another turn.

On February 3, 2023, the Court of Appeal of England and Wales unanimously decided to allow the appeal of Tulip Trading Limited ("Tulip"), reversing the prior order of the High Court, dated March 25, 2022. While this decision is largely procedural, and the final position on the existence of any duties will depend on the facts as established at the full trial (e.g. the extent to which the relevant Bitcoin networks are decentralized, and whether it is technologically possible to achieve the remedy sought by Tulip), the decision is a milestone with potentially far-reaching implications for the wider crypto and blockchain world:

1. it (re)opens the door to the imposition of fiduciary duties on software developers who "look after" cryptocurrencies on behalf of users/owners;

2. it may thereby offer victims of crypto theft or fraud a route to recovery; and

3. it indicates that the English courts remain open to adapting complex areas of law to account for fast developing technology.

Uneven Terrain: Drawing a Regulatory Perimeter Around a Rapidly Evolving Digital Asset Landscape

Manoj Ramia, general counsel of Digital Asset, discusses his perspective on the role of understanding blockchain technologies in attempts to create regulations that apply to them. (Note: Opinions are the author’s and should not be considered the views of Mayer Brown, its lawyers or clients.)

 
 
 
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Brief
 

Selected events for deeper dives into different parts of the digital assets and DeFi world.

Coincidence or Coordinated? The [Biden] Administration’s Attack on the Digital Asset Ecosystem

The Subcommittee on Digital Assets, Financial Technology and Inclusion of the US House Financial Services Committee convened for a hearing on Thursday, March 9, 2023 at 2:00 pm ET. The link above leads to a recording of the hearing. 
 
 
Brief
 

For those new to the digital assets and DeFi world, each edition of the Digital Assets Download will highlight a different term to help you be a part of the conversation.

Private Keys

A private key is a long string of alphanumeric characters or code used in cryptography, similar to a password. In the context of crypto assets, private keys are used to authorize transactions and prove ownership of a crypto asset.

A private key is an integral part of using or transacting in crypto assets, and the encryption at the heart of a private key is critical to protecting those crypto assets from theft and unauthorized access. That said, a private key can literally unlock access to your cryptocurrency, so it is important to carefully manage access to your private keys. As the saying goes, “not your keys, not your crypto.”
 
 
 

Writings on the Wall, Translating ‘Crypto’ Terms with Mayer Brown

From Airdrop to Wrapped Token, our illustrated glossary, “Writings on the Wall, Translating Securities with Mayer Brown,” has been updated with additional digital assets and cryptocurrency terms. Check out our “featured” list for the crypto terms and the full list of terms.
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