Regulating Digital Assets under Thai Law: A Case Study of Libra Coin (Part 4 of 4)

0
129

5.  Concluding Remarks

It is notable that the types of digital asset businesses under existing Thai laws and regulations are still limited and do not cover all possible types of digital asset businesses in the market. At present, under the Emergency Decree on Digital Asset Businesses, the types of digital asset businesses are still limited to three main types, namely exchange, brokerage and dealer businesses. In addition, the exemptions under the Notifications issued by the Thai SEC are still limited and may need to be retrofitted in response to emerging technologies.

With regard to Libra, it is noted that within the Thai legal and regulatory framework, Libra may not be granted the status as a legal tender or currency. Libra was designed to be a global low-volatility cryptocurrency supported by blockchain technology, hence it is a type of cryptocurrency that was defined in the Emergency Decree on Digital Asset Businesses.  

It is also important to highlight that the authorized reseller may be subject to the definition of “digital asset dealer” as specified in the Emergency Decree. However, at present, it is worth noting that the Thai Securities and Exchange Commission does not allow Libra to be traded as trading pairs.

In connection with the Notification KorTor11/2561, it seems that the Thai SEC tends to exempt businesses offering services in relation to the purchase or sale of fiat-collateralised stablecoins from the requirements specified in the Emergency Decree. However, to date, the Thai SEC has only exempted businesses offering services in relation to the purchase or sale of Thai baht-collateralised stablecoins.

Therefore, in the case of Libra, regulatory unclarity in Thailand may possibly impede its adoption and development in the market.

The practical guidelines should be considered by Thai authorities to ascertain a consistent approach to regulatory implementation. The authorities may consider “A Guide to Digital Token Offerings” (The MAS Guideline), issued by the MAS, as an example. With respect to this, it is worth noting that the guideline itself it not legally binding. It provides a more adaptive and flexible approach for the regulator in regulating digital token offerings. This can also reflect the use of soft law mechanisms that have the potential to make related regulation become more adaptive.[1] 

Furthermore, in terms of innovation regulatory tools, a regulatory sandbox might be considered a tool for regulators to acquire more understanding of such developments and to make laws and regulations more flexible and adaptable in responding to fast-growing technologies.

            Apart from regulatory approaches to the legal status of digital assets, as well as digital asset businesses, there are a number of potential use cases in the context of the effort to regulate its underlying technology. For example, while China still bans both ICOs and cryptocurrency exchanges, it recently passed a new law on cryptography (The Cryptography Law) that will come into force on January 1, 2020. The Cryptography Law essentially provides a legal foundation for the use of cryptography in China by both public and private entities. The Law’s main objective is to ensure cyberspace and information security, and was enacted after a couple of years of public debate. It should be pointed out that the new law also corresponds to the People’s Bank of China’s (PBOC) plan to issue its own Central Bank Digital Currency (CBDC).

In a connection to Libra, the project’s description specified that was Libra designed to be a new digital currency with distributed governance. In particular, the distributed governance concept will ensure that no single entity controls the network. To this end, the use of cryptography is necessary to protect the integrity of funds.[2] 

Moreover, the Cryptography Law focuses on blockchain technology, which is the underlying platform of virtual currency, as well as the proposed Libra coin, rather than providing a legal foundation for virtual currency and related activities and businesses. In particular, the law lays down key points concerning the definition and classification of “cryptography” that are categorized as “core and ordinary cryptography” and “commercial cryptography”. Given that “core and ordinary cryptography” is handled by the state, this type will be used to protect information regarded as state secrets and then subjected to strict regulatory requirements (Article 7). In contrast, “commercial cryptography” will relate to the protection of information that is not regarded as state secrets (Article 8).

The new law also encourages the use of “commercial cryptography” by any entities or individuals in accordance with the principle of non-discrimination. In this sense, the law can expand the regulatory framework around cryptography technologies and may potentially be used as a foundation relating to the utilization of cryptography technologies in the country. To conclude, the regulatory approach to address the underlying technology may also serve as a basis for the governance of the token economy at full scale.


[1] “The Future of Regulation,” Deloitte Insights, <https://www2.deloitte.com/content/dam/insights/us/articles/4538_Future-of-regulation/DI_Future-of-regulation.pdf> accessed 1 December 2019.

[2] Supra, note 10. p. 1.

LEAVE A REPLY

Please enter your comment!
Please enter your name here