FATF guidance on virtual assets: NFTs win, DeFi loses, rest remains unchanged

The Financial Action Task Force has laid out its perspective on crypto, including its views of nonfungible tokens and decentralized finance.

The Financial Action Task Force (FATF) released its long-awaited guidance on virtual assets, laying out standards that have the potential to reshape the crypto industry in the United States and around the world. The guidance addresses one of the most important challenges for the crypto industry: To convince regulators, legislators and the public that it does not facilitate money laundering.

The guidance is particularly concerned with the parts of the crypto industry that have recently brought about significant regulatory uncertainty including decentralized finance (DeFi), stablecoins and nonfungible tokens (NFTs). The guidance largely follows the emerging approach of U.S. regulators toward DeFi and stablecoins. In a positive note for the industry, the FATF is seemingly less aggressive toward NFTs and arguably calls for a presumption that NFTs are not virtual assets. The guidance, however, opens the door for members to regulate NFTs if they are used for “investment purposes.” We expect this guidance to add fuel to the NFT rally that has been underway for the majority of 2021.

Related: The FATF draft guidance targets DeFi with compliance

Expanding the definition of virtual asset service providers

The FATF is an intergovernmental organization whose mandate is to develop policies to combat money laundering and terrorist financing. While the FATF cannot create binding laws or policies, its guidance exerts a significant influence on counter-terrorist financing and anti-money laundering (AML) laws among its members. The U.S. Department of the Treasury is one of the government agencies that generally follows and implements regulations based on the FATF’s guidance.

The FATF’s much-anticipated guidance takes an “expansive approach” in broadening the definition of virtual asset service providers (VASPs). This new definition includes exchanges between virtual assets and fiat currencies; exchanges between multiple forms of virtual assets; the transfer of digital assets; the safekeeping and administration of virtual assets; and participating in and providing financial services relating to the offer and sale of a virtual asset.

Once an entity is labeled as a VASP, it must comply with the applicable requirements of the jurisdiction in which it does business, which generally includes implementing Anti-Money Laundering (AML) and counter-terrorism programs, be licensed or registered with its local government and be subject to supervision or monitoring by that government.

Separately, the FATF defines virtual assets (VAs) broadly:

“A digital representation of value that can be digitally traded, or transferred, and can be used for payment or investment purposes.” But excludes “digital representations of fiat currencies, securities and other financial assets that are already covered elsewhere in the FATF Recommendations.”

Taken together, the FATF’s definition of VAs and VASPs seemingly extends AML, counter-terrorism, registration and monitoring requirements to most players in the crypto industry.

Impact on DeFi

The FATF’s guidance regarding DeFi protocols is less than clear. The FATF starts by stating:

“DeFi application (i.e., the software program) is not a VASP under the FATF standards, as the Standards do not apply to underlying software or technology…”

The guidance does not stop there. Instead, the FATF then explains that DeFi protocol creators, owners, operators or others who maintain control or sufficient influence over the DeFi protocol “may fall under the FATF definition of a VASP where they are providing or actively facilitating VASP services.” The guidance goes on to explain that owners/operators of DeFi projects that qualify as VASPs are distinguished “by their relationship to the activities undertaken.” These owners/operators may exert sufficient control or influence over assets or the project’s protocol. This influence can also exist by maintaining “an ongoing business relationship between themselves and users” even when it is “exercised through a smart contract or in some cases voting protocols.”

In line with this language, the FATF recommends that regulators not simply accept claims of “decentralization and instead conduct their own diligence.” The FATF goes so far as to suggest that if a DeFi platform has no entity running it, a jurisdiction could order that a VASP be put in place as the obliged entity. In this respect, the FATF has done little to move the needle on the regulatory status of most players in DeFi.

Related: DeFi: Who, what and how to regulate in a borderless, code-governed world?

Impact on stablecoins

The new guidance reaffirms the organization’s previous position that stablecoins — cryptocurrencies whose value is pegged to a store of value such as the U.S. dollar — are subject to the FATF’s standards as VASPs.

The guidance addresses the risk of “mass adoption” and examines specific design features that affect AML risk. In particular, the guidance points to “central governance bodies of stablecoins” that “will in general, be covered by the FATF standards” as a VASP. Drawing on its approach to DeFi generally, the FATF argues that claims of decentralized governance are not enough to escape regulatory scrutiny. For example, even when the governance body of stablecoins is decentralized, the FATF encourages its members to “identify obliged entities and … mitigate the relevant risks … regardless of institutional design and names.”

The guidance calls on VASPs to identify and understand stablecoins’ AML risk before launch and on an ongoing basis, and to manage and mitigate risk before implementing stablecoin products. Finally, the FATF suggests that stablecoin providers should seek to be licensed in the jurisdiction where they primarily conduct their business.

Relayed: Regulators are coming for stablecoins, but what should they start with?

Impact on NFTs

Along with DeFi and stablecoins, NFTs have exploded in popularity and are now a major pillar of the contemporary crypto ecosystem. In contrast to the expansive approach toward other aspects of the crypto industry, the FATF advises that NFTs are “generally not considered to be [virtual assets] under the FATF definition.” This arguably creates a presumption that NFTs are not VAs and their issuers are not VASPs.

However, similar to its approach toward DeFi, the FATF emphasizes that regulators should “consider the nature of the NFT and its function in practice and not what terminology or marketing terms are used.” In particular, the FATF argues that NFTs that “are used for payment or investment purposes” may be virtual assets.

While the guidance does not define “investment purposes,” the FATF probably intends to encompass those who buy NFTs with the intent to sell them at a later time for a profit. While many buyers purchase NFTs because of their connection with the artist or work, a large swath of the industry purchases them because of their potential to increase in value. Thus, while the FATF’s approach toward NFTs is seemingly not as expansive as its guidance for DeFi or stablecoins, FATF countries may rely on the “investment purposes” language to impose stricter regulation.

Related: Nonfungible tokens from a legal perspective

What the FATF guidance means for the crypto industry

The FATF guidance closely tracks the aggressive stance from U.S. regulators concerning DeFi, stablecoins and other major parts of the crypto ecosystem. As a result, both centralized and decentralized projects will find themselves increasingly pressured to comply with the same AML requirements as traditional financial institutions.

Moving forward, DeFi projects, as we are already seeing, will burrow deeper into DeFi and experiment with new governance structures such as decentralized autonomous organizations (DAOs) that approach “true decentralization.” Even this approach is not without risk because the FATF’s expansive definition of VASPs creates issues with key signers of smart contracts or holders of private keys. This is particularly important for DAOs because signers could be classed as being VASPs.

Given the expansive way that the FATF interprets who “controls or influences” projects, crypto entrepreneurs will have a tough fight ahead of them not only in the United States but also around the world.

This article was co-authored by Jorge Pesok and John Bugnacki.

The views, thoughts and opinions expressed here are the authors’ alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Jorge Pesok serves as general counsel and chief compliance officer for Tacen Inc., a leading software development company that builds open-source, blockchain-based software. Before joining Tacen, Jorge developed extensive legal experience advising technology companies, cryptocurrency exchanges and financial institutions before the SEC, CFTC, and DOJ.
John Bugnacki serves as policy lead and law clerk for Tacen Inc. John is an expert on governance, security and development. His research and work have focused on the vital intersection between history, political science, economics and other fields in producing effective analysis, dialogue and engagement.

Crypto market eyes recovery ahead of key US inflation data release

The Asia Pacific and European markets slide in caution ahead of key U.S. inflation data.

Growing inflation has become a mounting concern for nations around the world, especially the United States. 

The U.S. has seen one of the sharpest rises in consumer inflation over the past year. Lawmakers around the globe have claimed that they didn’t see the inflation coming, but people often draw their attention towards the seeming unrestricted money printing spree throughout the pandemic.

The U.S. has printed 35% of the total U.S. dollar in circulation in 2021 alone which has played a key factor in record-breaking inflation. Market pundits expect a 6% rise in the consumer price index (CPI) in November, which would be the highest in four decades. 

Statistics on the CPI are scheduled to release on Dec. 10.

The Biden administration has said that the $1.85 trillion spending program and tax cuts would slow down the effects of inflation, but experts have been skeptical about the idea of printing more money.

Real M1 money stock 1959-2021. Source: Federal Reserve Bank of St. Louis

Asian Pacific and European markets opened with caution and recorded a broad decline across the board. Japan’s Nikkei 225 declined 1% to 28,437.77. South Korea’s Kospi fell 0.64% to 3,010.23 while the Kosdaq was down 1.1% at 1,011.57. Pan European stock index STOXX 600 was down 0.4% while technology, retail, and healthcare stocks also recorded a loss.

The Asia Pacific markets Dec. 10, 2021. Source: CNBC

The crypto market saw a minor bounce back from last night, contrary to the common decline in traditional markets. Bitcoin (BTC) price recovered above $48,400 after falling to a daily low of $47,358 while Ether (ETH) also recovered above $4,100 after recording a daily low of $4,026. The overall crypto market cap climbed above $2.25 trillion.

With rising inflation and omicron variant inducing panic in the traditional markets, Bitcoin can rise again as the inflation hedge.

Robert Kiyosaki, the author of “Rich Dad Poor Dad” and a businessman himself warned of the incoming market “crash and depression” due to the “fake inflation.” Kiyosaki blamed the Feds and the Biden administration for pushing the fake inflation on people.


Prosecutor General’s Office Wants to See ‘Cryptocurrency’ in Russian Law

Prosecutor General’s Office Wants to See ‘Cryptocurrency’ in Russian Law

The Prosecutor General’s Office of the Russian Federation has insisted that the term “cryptocurrency” should be added to the country’s legislation. The move would allow authorities in Moscow to confiscate digital assets that have been involved in criminal activities.

Russian Prosecutor General’s Office Prepares Amendments Allowing Seizure of Cryptocurrency


With cryptocurrencies being only partially regulated through the law “On Digital Financial Assets,” work is underway in Russia to adopt legislation introducing comprehensive rules for the turnover of bitcoin and the like. The Russian Prosecutor General’s Office has joined these efforts as it wants the term “cryptocurrency” added to the legal texts.

“We have developed amendments to a number of regulatory legal acts so that cryptocurrencies in illegal circulation are not only recognized as а subject of a crime, but there’s also a legal possibility of their arrest and confiscation,” Russia’s Prosecutor General’s Igor Krasnov said in an interview with RIA Novosti news agency.

Russian lawmakers are mulling over other legislative changes to establish a proper legal framework for cryptocurrencies. A number of activities related to digital coins remain outside the scope of the current law, including taxation, mining, and payments, for example.

Calls have been mounting among officials in Moscow to recognize cryptocurrency mining as an entrepreneurial activity and tax it accordingly. At the same time, the Central Bank of Russia (CBR) remains opposed to the legalization of digital currencies as a means of payment. The regulator claims these represent “money surrogates” that are banned in Russia.

The monetary authority is currently developing a digital version of the national fiat, insisting that’s exactly what the Russians need. The digital ruble will provide а low cost and reliable payment solution that also protects personal data, the head of the CBR, Elvira Nabiullina, promised in November. Bank of Russia is planning to commence trials for the CBDC in January 2022.

Last month, the Russian Prosecutor General’s Office also proposed recognizing cryptocurrency and other virtual assets as property in the country’s Criminal Code. Igor Krasnov explained in the State Duma, the lower house of parliament, that the legal definition will be used in court proceedings.

Krasnov also revealed that his department has already drafted a bill that would regulate the matter and expressed hope that lawmakers would support it. Digital currencies such as bitcoin have been recognized as property under several other Russian acts like the laws on bankruptcy and enforcement proceedings, the anti-money laundering legislation, and the country’s anti-corruption law.

Do you expect Russia to add the term “cryptocurrency” to its legislation? Share your thoughts on the subject in the comments section below.

UK politicians say cryptocurrency is ‘not an investment’

The head of the FCA said the agency is expecting new powers for regulating crypto advertisements.

Members of Parliament (MPs) in the United Kingdom have called upon the Financial Conduct Authority (FCA) to limit the use of the word “invest” and “investment” by cryptocurrency firms for promotional purposes.

According to a Thursday report in The Times, MPs at the treasury select committee told FCA chief Nikhil Rathi that the use of the phrase “your investment” often portrays that these are on par with an FTSE 100 company or a unit trust, thus giving the wrong impression about the type of investment. Harriett Baldwin, Conservative MP for West Worcestershire took special exception to FCA’s supposed inability to stop fraudulent promotions and went on to accuse them of helping criminals:

“Your website actually publishes a list of unregistered crypto-asset businesses for anti-money laundering purposes. It’s meant to be helpful but it could also be helpful to someone who just wants to launder money.”

Rathi assured that the regulatory body is currently looking into the matter and also expecting new powers in terms of regulating crypto advertisements. However, unless those new powers come into practice, there isn’t much that the chief regulatory body can do.

“We’ll have a discussion about what the wording should be,” said FCA chief.

Earlier, FCA chairman Charles Randell had expressed concern over the wordings of the Floki Inu advertisement on London buses but admitted nothing much can be done beyond cautionary warnings for consumers.

The FCA chief also said that the agency is considering dismissing any requests for compensation under the Financial Services Compensation Scheme if people lose money in cryptocurrencies: 

“Personally, I would suggest we simply say that anything crypto-related should not be entitled to compensation so that consumers are clear about that when they are investing.”

Related: UK FCA will spend £11M to warn people about investing in crypto

In July 2021, the Advertising Standards Authority in the U.K. issued a red alert against deceptive crypto advertising and warned consumers to be wary of such ads.

Apart from the U.K., India is another country where authorities have had to get involved over the lack of disclaimers in crypto advertisements. The Delhi High Court recently issued a notice to bring standardized disclaimers for crypto advertisements.

Indian trade group recommends ‘special class security’ status for crypto

The Confederation of Indian Industries has proposed new regulations around the nascent crypto market.

The Confederation of Indian Industries (CII), a non-government trade association and advocacy group, has proposed to treat cryptocurrencies as securities of a special class. 

The trade association released a report titled “Cryptocurrencies, Crypto Tokens/Assets & Regulations: The Way Forward” where it advocates for regulating the crypto market instead of outlawing it, reported Business Line. The report highlighted substantial technological innovation that the core technology of blockchain can bring in the payment and remittance sector.

The report proposes to formulate new regulations around the nascent crypto market instead of regulating them under existing securities law.

“A new set of regulations appropriate to the context of crypto/digital currencies and their jurisdiction-less, decentralized character, should be evolved and applied. This would mean regulatory focus principally on dealings and custody, rather than on issuance (except where issuance entails an Initial Coin Offering (ICO) to the public by an issuer established in India),” said the official report.

The CII report recommended bringing cryptocurrencies under the special provision of income tax and GST laws, under which it can be treated as an asset class for tax purposes unless specifically treated as “stock in trade“ by a participant. 

Related: Smart crypto policy could keep India’s tech dominance on top

The report recommended imposing strict Know Your Customer and Anti-Money Laundering requirements for centralized exchanges to ensure investor protection. Further, these exchanges must register with the Securities and Exchange Board of India (SEBI) to obtain a financial markets intermediaries license. It also recommended setting a minimum capital and guarantee fund requirement for exchanges while complying with investor disclosure requirements.

The CII report comes at a crucial juncture as a draft of a cryptocurrency bill is currently up for discussion in parliament. The Indian finance minister had earlier assured that the government would not take a ban approach and rather regulate cryptocurrencies as an asset. 

Puerto Rico wants to combat corruption with blockchain technology

A mayor in Puerto Rico pleaded guilty to accepting a bribe of more than $100,000 in cash last week.

Following another corruption scandal, the government of Puerto Rico is reportedly seeking to improve its anti-corruption efforts by adopting blockchain technology.

Puerto Rican House Speaker Rafael “Tatito” Hernandez announced that lawmakers will hold meetings with local blockchain enthusiasts this month to discuss the potential adoption of blockchain technology to reduce corruption.

The implementation of blockchain and smart contracts could bring more transparency and accountability to the public sector, the official said at a Puerto Rico Blockchain Trade Association conference, Bloomberg reported on Dec. 6.

“We have a real credibility problem and this might be part of the solution,” Hernandez said, adding that there is also a broader effort to make Puerto Rico a hub for crypto and blockchain innovation. According to the official, the emerging industry could be a way for the bankrupt commonwealth to revive its economy.

“Back in the 60s and 70s we had the niche of manufacturing. […] This is a new niche, a new opportunity to create jobs,” Hernandez said.

The speaker’s comments came amid growing corruption concerns in Puerto Rico as a local mayor reportedly pleaded guilty to accepting more than $100,000 of bribes in cash last week.

Puerto Rico is not alone in exploring the potential anti-corruption capabilities of technologies like blockchain and digital currency. Last year, the Ministry of Foreign Affairs of Denmark reported on blockchain’s potential to fight administrative and political corruption. The United Nations’ drugs and crime agency also advised Kenya to use blockchain to combat government corruption in November 2020.

Related: Gibraltar’s government plans to bridge the gap between public and private sectors with blockchain

While multiple jurisdictions are looking at cryptocurrencies’ underlying technology as a tool to cut corruption, some governments like Russia prohibit its deputies and officials from holding crypto, citing corruption concerns.

One of the world’s most corrupt countries, Russia could in fact use crypto to reduce corruption, according to Maria Agranovskaya, a legal attorney and fintech expert in the Russian State Duma. Agranovskaya told Cointelegraph that cash is way more popular for illegal activity like corruption because it’s more difficult to trace:

“If you convey proper KYC and AML at the start, crypto flows can be much more easy to trace, only proper rules of the game should be in place.”

Smart crypto policy could keep India’s tech dominance on top

Experts are fairly confident that the Indian government will most likely choose to regulate rather than ban its thriving crypto economy.

There’s no denying that the Indian government shares a contentious relationship with cryptocurrencies, as was made clear recently when the government indicated that it plans on banning all private cryptocurrencies — a list that could potentially include just about every digital asset in the market today — after it had previously lifted all such restrictions back in 2019.

To elaborate, it is expected that as the government reconvenes for its Winter Session, it will discuss the Cryptocurrency and Regulation of Official Digital Currency Bill 2021, which as the name suggests, seeks to create a legislative framework wherein all private cryptocurrencies can potentially be banned. 

That said, there is still a lot of confusion regarding what the term private crypto constitutes, with some people speculating that it may refer simply to security-centric tokens such as Monero (XMR) or ZCash (ZEC). On the other hand, Naimish Sanghvi, founder of crypto news website Coin Crunch India, thinks that the Indian government’s definition of a private asset could expand to include pretty much every crypto in the market, stating:

“In the 2019 Department of Economic Affairs report on cryptocurrency, they essentially said that everything that is non-sovereign is designated as a private cryptocurrency. And by that logic, it means that Bitcoin and Ethereum will come into that definition.”

Blurred lines galore

Nischal Shetty, CEO of Indian cryptocurrency exchange WazirX, told Cointelegraph that it is hard to comprehend what the government means by private cryptocurrencies, especially since prominent assets like Bitcoin (BTC) and Ether (ETH) are essentially public cryptos that have been built atop transparent blockchain infrastructures — with each project featuring its very own set of specific use cases. 

Shetty further highlighted that people cannot use the Indian rupee or Tether (USDT) to pay for fees on the Bitcoin or Ether blockchains. Instead, they need crypto to use decentralized applications (DApps) and create nonfungible tokens (NFTs). He said:

“While the description of the draft bill appears to be the same as in January 2021, several noteworthy events have occurred since January. First, the Parliamentary Standing Committee invited a public consultation, and then our Prime Minister himself came forward to call for crypto regulations in India.”

Sumit Gupta, CEO of cryptocurrency trading platform CoinDCX, told Cointelegraph that there is no official label for a private cryptocurrency anywhere else in the world — and so now, the public eagerly awaits the Indian government’s definition of a private asset.

He further pointed out that since the full details of the bill are not yet available, it is best not to speculate about what it may potentially entail. However, one thing that is clear is that the government recognizes the transformative potential of blockchain, and is paying closer attention to its various uses and applications in our everyday lives. Gupta noted:

“A complete ban is unlikely as it will challenge India’s ability to harness blockchain technology to transform our industries — an outcome we believe policymakers would rather avoid. Crypto is a powerful trend that is shaping economies around the world, and we remain confident that our policymakers will formulate regulations that will enable our economy to reap the full benefits the global crypto industry has to offer.”

A blanket ban looming on the horizon?

When asked about the possibility of an all-out ban rearing its ugly head once again, Shetty noted that it is best to wait and find out more about the bill. He did admit that he is optimistic about India’s general outlook towards crypto, citing Finance Minister Nirmala Setharaman’s recent comments wherein she noted that India may only look to “regulate its digital asset sector” rather than stifle all of the innovation emanating from it irrevocably.

Shetty alluded to the comprehensive Financial Action Task Force (FATF) guidelines that were proposed at this year’s G20 summit which stated that crypto is not a threat to the local economy of any country, adding:

“A blanket ban will also lead to an increase in OTC markets, fake exchanges and brain drain from India. The crypto industry today directly/indirectly employs 50,000 people today and generates millions in tax revenue for the government. The crypto industry is open to being regulated, but a blanket ban is something that will harm the entire country’s financial and technology ecosystem.”

Similarly, Gupta is willing to welcome any bill, as it assures that policymakers are beginning to acknowledge the importance of this new asset class, as well as the growing appetite from retail and institutional investors in India. “While we will not speculate as to the full details of the bill, we are confident that the government will act in a manner that best positions our economy for inclusive growth,” he added. 

In his view, a balanced approach between innovation and regulation should ideally be maintained, with the government clearly spelling out the specific parameters critical in transacting with crypto without overly stifling the technology’s potential.

Regulation rather than an all-out ban 

Recent reports from local Indian media outlets claim that an outright ban may not be in offing. Rather, the government may devise a well-crafted governance framework with how digital assets can be administered in the region. 

News media organization NDTV revealed that it had been able to get its hands on a “cabinet note” related to the proposed crypto bill. As per the document, there are only suggestions to regulate cryptocurrencies as assets that are overseen by the Securities and Exchange Board of India (SEBI) rather than outlawing the market completely. Not only that, the note reportedly specifies that investors will be given a set amount of time in order to declare their crypto holdings as well store them in platforms that are regulated by the SEBI — a move that suggests private wallet operators may be banned completely from operating within the region. 

Lastly, the document suggests that the upcoming crypto laws will not allow for any digital assets to be recognized as legal tender. However, the government may consider the creation of its very own central bank digital currency somewhere down the line.

Policymaking and India’s digital dominance

As things stand, India boasts of a vibrant tech and innovation sector that hosts the third-largest startup ecosystem in the world. In this regard, Gupta noted that investor confidence in the country has only continued to grow recently, with Indian crypto companies amassing over $500 million worth of funding investment over the course of 2021 alone. 

Furthermore, foreign direct investment in the sector is also estimated to grow to over $25 billion by 2025 and is likely to cross $200 billion by 2030. In this regard, he added: 

“Just recently, Singaporean crypto exchange Coinstore entered the Indian market despite the looming regulatory uncertainty, signifying India’s strength as a crypto hub that continues to attract international companies. If a blanket ban does come into effect, it will not only affect access and adoption-related to digital finance for consumers but also limit innovation and technological advancements for the wider economy.”

India is historically known as a tech hub and by embracing the future of finance, it can further its economic and technological standing as a global powerhouse. Therefore, it will be interesting to see how the country decides to finally go ahead and regulate its burgeoning digital asset market.