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マルタ VFA法

1. Introduction
1. はじめに

The Virtual Financial Assets Act, 2018 (the “VFA Act”), came into force on the 1st of November 2018, and regulates the field of Initial Virtual Financial Asset Offerings carried out in and from within Malta and Virtual Financial Assets and has also made provisions for ancillary services.


In order for the VFA Act to be applicable, a token must be classified as a Virtual Financial Asset (“VFA”) and the Act provides a comprehensive Financial Instrument Test to determine such classification.


Should the token be considered a VFA, the Act provides for a broad set of processes and regulations that aim to provide a significant level of investor protection, whilst encouraging growth in the industry.


The VFA Act defines a VFA as, “any form of digital medium recordation that is used as a digital medium of exchange, unit of account, or store of value and that is not electronic money, a financial instrument, or a virtual token.” The VFA shall also be generated through the use of Digital Ledger Technology (“DLT”), which is defined as, “a database system in which information is recorded, consensually shared, and synchronised across a network of multiple nodes…”

VFA法では、VFAを「デジタルでの価値交換、価値測定、価値貯蔵の媒体として使用されるあらゆる形式のデジタル媒体記録であり、電子マネーや金融商品、仮想トークンではないもの」として定義しています。またVFAは、「情報が記録され、合意のもとで共有され、複数のノードのネットワークで同期されるデータベースシステム」と定義される分散型台帳技術(DLT : Digital Ledger Technology)を使用して生成されるものとします。 

The Act delineates the necessary regulatory framework for VFA Offerings, which must be made through a whitepaper (which is compliant under the VFA Act) to be registered with the Malta Financial Services Authority (“MFSA”), as the competent authority, through a licensed VFA Agent. The VFA Act also sets out particular sanctions for non-compliant issuers, with an aim to increase investor protection.


The VFA Act creates a regulatory environment that will provide much sought after legal certainty for issuers of tokens. With the establishment of a robust compliance and enforcement regime whilst encouraging innovation and promotion of all industry stakeholders, Malta is a well-suited jurisdiction for the offering of tokens.


1.1 Financial Instrument Test
1.1 金融商品テスト

In order to determine whether or not the token will fall under the purview of the VFA Act, an issuer must complete the Financial Instrument Test. An issuer shall enlist a VFA Agent to complete the test and register their findings, along with a compliant whitepaper to the MFSA.


The test will determine the nature of the token and the applicable regulatory regime which it will fall under. The test takes a negative approach, in that if the DLT token (“DLT Asset”) is not a virtual token, transferable security, money market instrument, a unit in a collective investment scheme, a financial derivative, an emissions allowance, or electronic money, it shall be classified as a VFA and will fall under the purview of the VFA Act.


1.2 Virtual Token
1.2 仮想トークン

In order for a token to be considered a virtual token, it must fulfil the non/limited-exchangeability and purpose criteria:


1.2.1 Exchangeability
1.2.1 交換可能性

The virtual token should remain exchangeable either solely within the DLT platform on or in relation to which it was issued or within only a limited network of DLT platforms; and

仮想トークンは、それが発行されたDLTプラットフォーム内でのみ、あるいはDLTプラットフォームの限られたネットワーク内でのみ交換可能であるべきです。 そして

1.2.2 Purpose
1.2.2 目的

The virtual token should be a form of digital medium recordation whose utility, value or application is restricted solely to the acquisition of goods or services.

Should, after completing the Financial Instrument Test, the token be considered a virtual token, it shall fall outside the purview of the VFA Act and remain unregulated.



1.3 Transferable Security
1.2 譲渡可能証券

A token will be considered a transferable security, if it falls within the definition provided by Annex I, Section C MiFID II. The guidance note on the Financial Instrument Test provides for the following to be considered:

トークンが附属書I、セクションC MiFID IIに規定されている定義に該当する場合、そのトークンは譲渡可能証券とみなされます。金融商品テストのガイダンスノートでは、次のことを考慮しています。

1.3.1 Exchangeability
1.3.1 交換可能性

The first criterion to be assessed is the negotiability of a DLT asset on the capital markets. It has been established that such a feature is a sine qua non for a DLT asset’s classification as a Transferable Security. In this respect, the Test also considers whether the transferability of the DLT asset is restricted solely to the issuer, given that only under such a scenario would the DLT asset be considered as non-transferable. For the purposes of this determination, the negotiability feature shall also apply to DLT assets which have not yet been issued, should such assets be designed to be negotiable on the capital market upon issuance.


1.3.2 Rights
1.3.2 権利

A DLT asset’s qualification as a Transferable Security is further subject to the assessment of the rights attached to it in order to determine whether these effectively render such DLT asset akin to a share in a company, partnership or other entity, and depository receipt in respect of share/s, or bond or other form of securitized debt or gives the right to acquire or sell any such Transferable Securities or gives rise to a cash settlement determined by reference to, inter alia, Transferable Securities.


1.3.3 Instrument of Payment
1.3.3 支払手段

The definition of Transferable Securities under MiFID excludes instruments of payment; therefore a DLT asset qualifying as such shall not be deemed to be a Financial Instrument under MiFID.

Should the token be considered a transferable security, it will fall under EU Prospectus Regulations. So called ‘security tokens’ would in all likelihood be considered transferable securities and the issuer would be required to comply to the aforementioned EU Prospectus Regulations.



1 Malta Financial Services Authority, A Guidance Note to the Financial Instrument Test. (2018)
2 Ibid.

1.4 Money Market Instrument
1.4 短期金融商品

Various EU legislation has set out the criteria for what qualifies as a money market instrument.
In order for a DLT asset to be considered as such, issuers shall contemplate the following:


1.4.1 Maturity
1.4.1 満期

Qualification as a money market instrument would be based on whether the DLT asset has a maturity at issuance of up to 397 days or less.


1.4.2 Rights
1.4.2 権利

In accordance with the definition under Article 4 of the Markets in Financial Instruments Directive II and the Commission Delegated Regulation (EU) 2017/565, the DLT asset should have features that are similar to those of other instruments falling within the definition’s scope, including inter alia treasury bills, certificates of deposit and commercial papers and other instruments with substantively equivalent features. This is subject to the condition that the DLT asset does not qualify as a derivative.


1.4.3 Accurate valuation
1.4.3 正確なバリュエーション

The Commission Delegated Regulation (EU) 2017/565 stipulates that such instruments should have a value that can be determined at any point in time.


1.4.4 Instrument of Payment
1.4.4 支払い手段

The definition of money market instruments excludes instruments of payment; hence, a DLT asset which qualifies as such shall be excluded from MiFID II’s scope.

Tokens which are considered to be a money-market instrument shall fall outside the purview of the VFA Act and will subsequently fall within the confines of MiFID II and the Malta Investment Services Act.

短期金融商品の定義では、支払手段は除外されています。したがって、そのような資格のあるDLT資産は、MiFID IIの範囲から除外されます。

短期金融商品と見なされるトークンは、VFA法の範囲外であり、その後MiFID IIおよびマルタ投資サービス法の範囲内になります。

1.5 Unit in Collective Investment Scheme
1.5 集団投資スキームの単位

A unit in collective investment scheme is defined by Malta Subsidiary Legislation 123.51 and the UCITS Directive. In order to determine whether or not a DLT asset will be considered a unit in a collective investment scheme (“CIS”), an issuer must consider its purpose and arrangement.

集団投資スキームの単位は、マルタ子会社法123.51およびUCITS指令6によって定義されています。DLT資産が集団投資スキーム(「CIS」)の単位と見なされるかどうかを判断するためには、発行者は 目的とアレンジを考慮する必要があります。

1.5.1 Purpose
1.5.1 目的

The DLT asset in issue should enable investors to participate in or receive profits or income arising from the acquisition, holding, management or disposal of such DLT asset and the objective of the issue should be the collective investment of capital.


3 Article 3 of Commission Directive 2007/16/EC, MiFID II, Commission Delegated Regulation 2017/565.
4 Article 3 of Commission Directive 2007/16/EC.
5 Directive 2014/65/EU.
6 Directive 2009/65/EC.

1.5.2 Arrangements
1.5.2 アレンジ

The undertaking should also have one of the necessary arrangements which equate the DLT platform to a CIS.

Should a token be determined to be a unit in a collective investment scheme, the VFA Act would not apply and the token would fall within the confines of the Malta Investment Services Act.



1.6 Financial Derivative
1.6 金融デリバティブ

Annex 1, Section C(4) to (10) of MiFID sets out what shall qualify as a financial derivative. In order to determine if the token in question falls within such definition, the following criteria shall be considered:


1.6.1 Contract type
1.6.1 契約タイプ

The DLT asset should be equivalent to an option, future, swap, forward rate agreement or any other derivative contracts currently available in the markets.


1.6.2 Underlying
1.6.2 原資産

The DLT asset should have an underlying asset which falls within MiFID’s scope.


1.6.3 Settlement
1.6.3 決済

The DLT asset should be settled in accordance with the settlement conditions applicable in terms of MiFID and the Commission Delegated Regulation (EU) 2017/565.


1.6.4 Purpose
1.6.4 目的

The DLT asset should have an underlying purpose either in terms of a financial instrument for the purposes for the transfer of credit risk or equivalent to a contract for difference.

Should a token be considered a financial derivative, it will not be subject to the VFA Act and will fall under MiFID II and the Malta Investment Services Act. The dealing of derivatives is a regulated activity which requires an appropriate license.


トークンが金融派生商品と見なされる場合、それはVFA法の対象にはならず、MiFID IIおよびマルタ投資サービス法に該当します。

1.7 Emissions Allowance
1.7 排出枠

If a DLT Asset is issued by a national competent authority8 in terms of Directive 2003/87/EC, it shall be considered an emissions allowance and fall under the purview of the said Directive.


1.8 Electronic money
1.8 電子マネー

Where the DLT asset allows users to purchase and obtain goods and services, and is considered to be a widely-used means of exchange, it may be regulated as electronic money. In order to determine whether or not the token will be considered electronic money, the issuer must contemplate the following criteria:


1.8.1 Issuance and Redemption
1.8.1 発行及び償還

The DLT asset should be issued at par value on the receipt of funds by an issuer and be redeemable solely by the said issuer. Redemption should be possible at any time, at par value and without any possibility to agree a minimum threshold for redemption.


1.8.2 Claim on the Issuer

1.8.2 発行者へのクレーム

The DLT asset should represent a claim on the issuer arising from the funds originally placed against the issuance of such DLT assets.


1.8.3 Purpose
1.8.3 目的

The DLT asset should be used for the purpose of making payment transactions as defined in point 5 of Article 4 of Directive (EU) 2015/2366 and should be accepted by a natural or legal person other than the issuer of the said DLT asset as a payment.

However, should the payment or the DLT Asset itself fall under the exemption stated in Article 3(k) of Directive 2015/2366, it shall not be considered electronic money.

Electronic money will not fall under the VFA Act.




1.9 Virtual Financial Asset
1.9 仮想金融資産

If a DLT asset, after completing the Financial Instrument Test is determined not to be any of the above instruments, it will be considered a VFA, and thus under the purview of the VFA Act. The relevant regulations apply in relation to both the whitepaper and the issuer itself. The issuer must fulfil a fit and proper test, and meet certain specifications ? the determination of which will be initially made by the VFA Agent. Furthermore the whitepaper shall be compliant and contain the matters stated in the First Schedule of the Virtual Financial Assets Act.


Along with a VFA Agent, the Consultation Paper on the Virtual Financial Assets Rules for Issuers of Virtual Financial Assets11states that an issuer must have, at all times, the following functionaries: a systems auditor, an auditor, and a money laundering reporting officer. Each functionary must have sufficient knowledge and experience and adhere to the regulations set forth by the MFSA.

VFAエージェントと共に、仮想金融資産発行者のための仮想金融資産規則に関するコンサルテーション・ペーパーは、発行者が常に次の機能者を持たなければならないと述べている:システム監査人、監査人、およびマネー・ローンダリング報告責任者。 各機能職員は、十分な知識と経験を持ち、MFSAが定める規則を遵守しなければなりません。

The VFA Act has required issuers to state in detail many aspects of the VFA Offerings. From risks, milestones and financial disclosures to the technical aspects of the token ? the VFA Act places a high level of obligatory disclosure on the issuer. It is clear that investor protection is a very important aspect of the VFA Act, and the legislator has used the Prospectus Directive as a model when drafting the requirements for a compliant whitepaper.


2. Regulatory Consequences
2. 規制による影響


Issuers of VFAs are subject to the Prevention of Money Laundering Act and any subsequent legislation. The 5th Anti-Money Laundering Directive12 which was passed by the European Parliament specifically addresses cryptocurrencies and how anti-money laundering provisions will become applicable. This Directive will enter in force in Malta prior to the 30th May 2020.

One of the notable requirements of the whitepaper is to adopt white-listing and anti-money laundering and counter financing of terrorism procedures in terms of the aforementioned money laundering act.



2.2 Consumer protection legislation
2.2 消費者保護法制

Where VFA Offerings are open for retail investors, Maltese consumer protection laws may be applicable.


3. Investing into digital tokens
3. デジタルトークンへの投資

Although currently in its ‘consultation stage’, the paper on Achieving a Higher Degree of Investor Protection under the Virtual Financial Assets Act has stated that the MFSA are considering imposing an investment cap of ?5,000 per issuer over a period of 12 months, which would be applicable to retail investors as defined by MiFID.14


4. Conclusion
4 おわりに

The VFA Act is a progressive and investor-protection-conscious piece of legislation. It attempts to classify tokens into either being virtual financial assets, instruments under the current regulatory regime, or virtual tokens which remain unregulated. It would seem as though the definition of a VFA has been purposely left incredibly broad so as to act as a net, and catch all that does not fall within the current regulatory regime. The definition is of such breath that very few tokens will be classified as virtual tokens and hence be unregulated.

The legislation and subsequent regulations are designed to be comprehensive but not overly onerous ? preserving Malta as one of the most attractive jurisdictions, allowing it to live up to its epithet, “Blockchain Island”.



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