This Note recommends a viable way for the Securities and Exchange Commission (SEC) to apply the Regulation S foreign-issuer safe harbor to Initial Coin Offerings (ICOs). In the last two years, cryptocurrencies and blockchain-based companies have witnessed dramatic rises in price and value. New entrants to the crypto-markets often use ICOs as virtual public offerings to earn capital and develop their projects.
The SEC has signaled that they plan to fold ICOs and blockchain offerings into existing securities law. How these new virtual capital-raising mechanisms will fit into this framework is still largely unknown. As a defensive measure, many ICOs have banned US investors in an attempt to become foreign offerings that are outside the SEC's reach. Regulation S is the existing safe harbor that conventional securities offerings utilize to ensure that they are "foreign offerings." While ICOs are novel and do not fit perfectly into Regulation S's language, the safe harbor can be adapted to appropriately set parameters for ICOs. This Note suggests the correct interpretation that both protects US consumers and sets acceptable requirements for corporations seeking to fall within Regulation S.
Lockaby, C. Daniel
"The SEC Rides into Town: Defining an ICO Securities Safe Harbor in the Cryptocurrency “Wild West”,"
Georgia Law Review: Vol. 53:
1, Article 8.
Available at: https://digitalcommons.law.uga.edu/glr/vol53/iss1/8