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Abstract

The secondary market for security tokens is now in the process of forming. In addition to questions related to securities law, regulatory law plays a major role as well. Under civil law, the claims and membership rights that are relevant for the capital market may be issued and transferred in the form of uncertified rights maintained on Trustworthy technologies (TT, e.g. DLT and Blockchain) systems — i.e. in the form of tokens. From a regulatory perspective, questions — some of them new — arise during trading, clearing and settlement as a result of the use of TT systems. It is becoming clear that authorisation to operate an MTF or OTF is relevant for the multilateral trading of security tokens. However, the obligation to book new securities issues from 2023 and all securities from 2025 in a book-entry account with a central securities depository as well as the clearing obligation for derivatives must be observed. There are questions as to whether these obligations are necessary with respect to TT systems and, taking account of the ratio legis, whether they are reasonable. A new technology appears to make the otherwise necessary trust in intermediaries obsolete and thus to make the secondary market for financial instruments much more efficient, more transparent and therefore more secure.

In recent years, Liechtenstein has become a more attractive location for companies in the financial technology space (so-called FinTechs). In particular, companies appreciate access to the European Economic Area (EEA), the regulatory framework conditions and the oft-cited “short distances” in Liechtenstein. FinTechs use new technologies to offer new or existing services in the financial segment and often break new ground. This not infrequently poses regulatory challenges in terms of implementation, both for the service provider and for the regulatory authorities.

Security tokens are offered for sale to the public as part of so-called security token offerings (STO)⁹. STOs are used for corporate financing as well. Compared to the public offering of commodities, however, the public offering of financial instruments is heavily regulated. Financial instruments issued in the form of tokens are subject to the same regulations as traditional financial instruments.¹⁰ As far as I can tell, the first securities prospectus for a security token in the European Economic Area (EEA) was approved by the Liechtenstein Financial Market Authority in August 2018¹¹; others followed. These new technologies are apparently well suited for the primary market¹². However, the question such offerings pose is how fungible they will be on the secondary market after their initial issue on the primary market. This is because only a functioning secondary market — consider, for example, the maturity transformation function of the secondary market — makes it possible to use security tokens over the long term and broadly for corporate financing.

Capital market law is closely associated with company law. However, the aim of the latter is primarily to protect investor assets and membership in the company, while capital market law attempts to create the legal framework necessary for markets to function.¹³ For this reason, this thesis first looks at the civil law basis for the representation and transfer of claims and membership rights to tokens before then examining the regulatory basis of the secondary market for security tokens.

Consequently, in those places where facts are classified on the basis of trustworthy technologies (TT) these facts will first be examined in a clear and precise manner. To this end, first the term token will be examined in more detail, followed by a discussion of which tokens are subsumed under the term “financial instruments” and the criteria used for delineating them. This will be followed by a presentation of the current regulated intermediaries on the secondary market. The perspective will then shift to the existing markets for tokens and their authorisation and registration obligations will be analysed in order to identify challenges and open questions and whether these developments need to be reconciled with the current regulatory concept. The question is whether the changes enabled by these new technologies have such a disruptive force and are used widely enough in practice (“factual practice”) to make new regulatory approaches necessary, in line with Jellinek and his “normative force of the factual”.¹⁵ Finally, a new regulatory approach for the secondary market for security tokens is presented for discussion.

TT system is thus an umbrella term for certain qualified technologies, such as certain blockchains or DLT systems. The term “trustworthy technologies” should therefore be understood to mean that the trustworthiness is engendered by technology (trust-less)²⁵ and not by an intermediary.²⁶ This fundamental idea is not only significant for the regulatory concept of the TVTG, but also leads to the question of whether and if so, which capital market intermediaries can be replaced by technology. Following this idea, it will, in particular, be worth examining where, based on the regulations, the requisite trust in the intermediary exists. Thus, settlement and custody (and regulation of the intermediary entrusted with these services) play a central role in securities law. Precisely in the area of settlement and custody, these new technologies present new solutions that ensure security and trust without intermediaries.

Without transferability there is no secondary market. For this reason, the circumstances under which the rights represented by tokens can effectively be transferred first need to be described. The civil law section³³ of the TVTG specifies that the rights that are represented by tokens are transferred with the tokens.³⁴ The condition for doing so is the transfer of the right of disposal over the token³⁵. Disposal over a token requires that:

If there is effective disposal over the token, then this ex lege allows for disposal over the rights represented by the token.⁴¹ This “coordination requirement”⁴² was striking when the TVTG entered into force. If the authorised transferor and the transferee agree to the transfer of the right of disposal over the token, then the rights represented by the token, such as the right to a book-entry security, will — if permitted by law⁴³ — be transferred as well.⁴⁴

If the token is disposed of with no legal basis (sine causa) or if this legal basis subsequently no longer applies, then the transaction will be reversed in accordance with the requirements of the Unjust Enrichment Act⁴⁹. In this case, there is no claim to delivery of the token (replevin), but rather only a claim to have the transaction reversed under the Unjust Enrichment Act.⁵⁰

Of particular interest for the secondary market are (the simplest possible) transferable claims and membership rights. In Liechtenstein, claims can be transferred form-free through cession, provided the underlying legal transaction has no formal requirements.⁵¹ If there are no additional formal requirements, then disposal over the token also results in the transfer by law of the claim to the new holder of the right of disposal over the token.⁵² In the case of certificated claims, by contrast, the legal effect does not come about ex lege.⁵³

Legal entities⁵⁴ may grant their members membership shares (share rights), provided there is no law or regulation to the contrary. The membership cannot be divided, sold or inherited.⁵⁵ The membership is transferred⁵⁶, in accordance with Art. 149, para. 3 PGR and provided there are no securities or uncertified rights with the character of securities⁵⁷ related to the membership, by means of a written contract⁵⁸. Thus, if membership rights are not issued in the form of securities in accordance with Art. 150 PGR or as uncertified rights in accordance with Art. 81a, para. 1 of the final section of the PGR (certificated), then they are transferred by means of a contract (see Fig. 1).⁵⁹

Even before the TVTG, Liechtenstein law recognised immobilised and dematerialised securities, i.e. uncertified rights (“Wertrechte”)⁷⁵.⁷⁶ In the framework of the TVTG, uncertified rights were codified in Art. 81a, para. 1 SchlT PGR:⁷⁷

As a result, physical documentation in the form of a certificate is no longer necessary, and claims can be issued in digital form (uncertified rights).⁷⁹ The uncertified rights register (ledger) that the debtor is required to maintain in accordance with Art. 81a SchlT PGR may involve the use of trustworthy technologies pursuant to the TVTG.⁸⁰ In such cases, transfers (of uncertified rights in the form of tokens) are based solely on the provisions of the TVTG (see Fig 1).⁸¹

In summary, the claims and membership rights that are relevant for the capital market may, under securities and civil law, be issued and transferred in the form of uncertified rights maintained on TT systems — i.e. in the form of tokens. The transfer of uncertified rights on an electronic register/ledger (booking-supported securities system) is especially suited for the secondary market from the perspective of civil law because of the simple transfer through rebooking.

From a regulatory law perspective, tokens serve as a sort of container that can represent a number of existing rights in the digital (blockchain) world.¹⁰⁶ In terms of the representation of rights, they largely fulfil the same functions as securities with respect to the documentation of securities in certificate form; these include:

This functional equivalence makes it possible to treat uncertified rights equally without any restrictions, including from a regulatory law perspective. First, therefore, it must be clarified which tokenised financial instruments (rights represented in tokens) are suitable to be traded on the secondary market:

In practice, tokens — depending on their (economic) function — are divided from a regulatory law perspective into the following three categories¹¹¹:

For the question of tradability it is relevant whether the security can be traded on the capital market, whereby the term “capital market” must be interpreted broadly.¹³² As far as can be determined, the first “blockchain-based”¹³³ multilateral trading facility (MTF)¹³⁴ in the European Economic Area (EEA) was approved in Liechtenstein.¹³⁵ Tradability was ensured by no later than this point. The transferability criterion is usually ensured by means of the token’s transport/transfer function.¹³⁶ Finally, standardisation is also not problematic to implement from a technical standpoint. A large number of tokens of the same type¹³⁷ are created¹³⁸ on a regular basis. It is not necessary for the security to be issued in certificated form (paper).¹³⁹ The FMA holds this view as well and assesses the characteristic of securities on the basis of the aforementioned three criteria. Documentation of the security in certificate form is therefore not a mandatory condition. Here, the FMA explicitly speaks of the principal of “substance over form”.¹⁴⁰ Even when applying the principle of “substance over form” it can be concluded that when financial instrument rights are represented by tokens the regulatory provisions on financial instruments must be applied if the represented rights are subject to these provisions. By contrast, the form and designation (in tokenised form or as a certificate) play a subordinate role.¹⁴¹ Conversely, this also means that tokens that represent other rights are not to be classified as financial instruments¹⁴² and should not be subject to financial market regulations. With respect to the issue and subsequent obligations (including for the secondary market), the

In summary, it can be said that security tokens are tokens from a regulatory law perspective whose represented rights are already taken into account under regulatory law, and therefore that they are traditional financial instruments that, in order to make it easier to transfer them, are transferred and stored using TT systems (DLT/Blockchain) rather than being stored with a central securities depository and documented in the form of a certificate. Securities regulatory law allows for financial instruments in the form of tokens as well.

Trading in security tokens is subject to, as will be shown below, strict conditions regarding trading, clearing and settlement as well as the intermediaries involved.

In addition to regulated markets and crypto-exchanges, a third form has developed on the basis of TT systems, known as an “operatorless” secondary market, so-called decentralised exchanges (DEX¹⁵⁷).

In other words, a DEX is a purely software-based trading venue that runs — at least in part — on a¹⁵⁹ decentralised system. Because of their structure as operatorless trading venues DEXs appear to be prima facie unregulated or their operators difficult to regulate. In practice, most exchanges are a hybrid with centralised and decentralised elements. In practice, the organisation of trading is often centralised and settlement decentralised (known as hybrid models¹⁶⁰), which does not simplify the question of licensing or approval requirements. These decentralised trading venues, with as few central elements as possible, are intended to enable token transactions that have no restrictions and are secure for users.

Thus, the goals of the aforementioned centralised and decentralised markets and trading venues appear to be similar in their main features. The “new” trading venues present challenges to the current regulatory concept, which is geared towards intermediaries, but they also present opportunities. The following comparison of financial instruments transactions by centralised and decentralised trading and post-trading systems is based on a functional view in order to be able to establish the thesis of a suitable regulatory concept for the secondary market for security tokens. In particular, it must be reviewed whether harmonised securities law, taking account of the relevant goals being pursued (ratio legis) represent an adequate legal basis for the use of TT systems. To this end, the individual phases of securities transactions and their regulatory approaches will be individually presented and analysed.

A todays typical financial instrument transaction via centralised markets can be divided into three phases:

The amount of time between the trade and settlement varies considerably for securities and derivatives. Securities typically take about three days, while derivatives can take up to several decades.¹⁶² Clearing and delivery together are referred to as the post-trade phase. This includes all activities¹⁶³ to transfer the rights from the concluded transaction.¹⁶⁴ What was initially a direct¹⁶⁵ safekeeping of the securities has developed into a multi-level indirect safekeeping system. Securities are no longer handed over physically in order to transfer ownership over them; instead, electronic account entries are made.¹⁶⁶

Sample securities transaction: A simplified example of a securities transaction now proceeds as follows: Client A gives Bank A (custodian bank) the order to acquire a security. As the agent¹⁶⁷, Bank A forwards the order to an exchange (trading venue) in its own name. The transaction concluded successfully on the exchange is cleared and reported to the central securities depository¹⁶⁸. Because the buyer maintains his custody account at Bank B and thus the physical security, from the perspective of the central securities depository, changes ownership, the central depository rebooks the security in the account booking system from the account of Bank B to the account of Bank A. Bank A issues the buyer a corresponding custody account credit and Bank B issues him a custody account debit. If the buyer and the seller are clients at the same (custodian) bank, the bank can carry out the securities transaction without the involvement of the central securities depository.¹⁶⁹

The resulting advantages of DEX compared to centralised exchanges (especially crypto-exchanges) are:

This can lead to greater liquidity — especially for tokens that are not otherwise listed on exchanges. Users of DEX appreciate the fact that they can keep their private keys in safekeeping themselves and Phase 3 — settlement can proceed without an intermediary whom they must trust.¹⁸¹

Both centralised and decentralised systems carry out transactions in the three phases trading, clearing and settlement:

Although securities trading in the EEA continues to be conducted mainly on regulated markets, trading via multilateral trading facilities (MTF) is becoming more common.¹⁹¹ The operator of an MTF may be a bank, investment firm or the operator of regulated markets¹⁹², which may simultaneously operate a multilateral trading facility.¹⁹³

and systems with:

With a regulated market (stock exchange), the “facilitation” of the conclusion of a contract is sufficient, while the focus with MTFs is on “bringing together”.

Here, buying and selling interests is to be understood broadly and includes orders, quotes²⁰¹ and (non-binding) expressions of interest.²⁰² Therefore, after the orders or interests have been brought together in accordance with the rules of the system via its protocols or in accordance with its internal operating processes there must be a contract.²⁰³ The orders or interests must be brought together in the system, i.e. the orders²⁰⁴ entered must (be able to) interact with corresponding orders entered in the system for the same financial instrument and the transaction carried out in the system itself.²⁰⁵ Systems that bring together orders or interests do not include order routing systems, information systems and passive or partially active advertising systems (such as bulletin boards, blackboards). These systems do not carry out matching and only accept preliminary orders.²⁰⁶

Another delineating feature is the way the orders are brought together. In contrast to organised trading facilities, which are permitted to exercise discretion, MTFs must bring orders together in a non-discretionary manner. Non-discretionary means that the orders are only brought together in accordance with the rules of the system or with the help of the system’s protocols or internal operating processes.²⁰⁷ ²⁰⁸ Thus, after the order has been issued the parties have no opportunity to say whether they would like to carry out the transaction with a certain counterparty in that particular instance.²⁰⁹ Nor does the operator have any scope for discretion. In particular, the operator may not execute client orders with its own funds, nor may it rely on matched principal trading.²¹⁰ In contrast to the operation of a regulated market, the operation of a multilateral trading facility represents an investment service and the MTF is operated privately, not as a public-law regulated market.

Compared to a regulated market, the lack of the corresponding provisions on the listing of financial instruments on the MTF is relevant²¹¹. Access to multilateral trading facilities is as strictly limited as access to regulated markets.²¹² The operator of an MTF has the personal autonomy to impose additional criteria for security tokens. This private-law organisation enables a more flexible structure, e.g. in the form of market regulations, which could be considered necessary with respect to trading security tokens.²¹³ In addition, unlike OTFs equity instruments can be traded as well. Looking at the primary market for security tokens, there are already some approved prospectuses for equity instruments, so trading in equity instruments in the form of security tokens²¹⁴ may, in practice, be relevant and trading security tokens, in particular, will be organised via MTFs as well.

The authorities in the home country remain responsible for oversight, the FMA in this case.²¹⁹

The Börse Stuttgart operates an MTF for tokens — currently, Bitcoin — which can be used as an example to show the challenges that regulated institutions face even in just listing non-security tokens based on TT systems (DLT/Blockchain):

As a prerequisite for trading cryptocurrencies on the MTF and the transmission of buy orders, users must have a EUR account (at the account-holding bank) with funds equal to at least the expected transaction volume plus fees. By contrast, sell orders require users to have at least one crypto account (at the specified crypto custodian) with funds equal to the order volume.²²⁸ This mitigates counterparty risks, as the contractual relationship exists directly between the buyer and the seller, with no central counterparty. However, trading is still anonymous between the users. Orders cannot be assigned by the users to other users before or after the trade.²²⁹ The bringing together of the interests is carried out in accordance with private-law rules (market regulations). Each new order is immediately reviewed to make sure it can be executed against orders that are already in the order book. If it can be executed, the trading facility carries out the order execution; if not, the order is placed in the order book.²³⁰ New executable orders that are received are executed by rank (price-time priority²³¹) against orders on the other side of the order book. If new orders can only be partly executed, the parts of the order that have not been executed remain in the order book.²³² If the transaction is concluded and cryptocurrencies need to be transferred to the buyer after clearing, the crypto custodian²³³ carries this out based on the instructions of the MTF by rebooking the holdings to the users.²³⁴ All users indicate to the crypto custodian by agreeing to the contractual terms and conditions that they will meet the obligation to transfer crypto currencies to the buyer arising from the sale of crypto currencies on the MTF following the corresponding instructions from the MTF.²³⁵ If legal tender (currency) must be paid by the buyer to the seller after clearing, the MTF instructs the account-holding bank to make the necessary transfers.²³⁶ By agreeing to the contractual terms and conditions, users indicate to the account-holding bank their willingness to transfer the purchase price from their account to the account of the trading partner and the fees to the account of the MTF²³⁷ following the conclusion of the trading transaction(s). By submitting the buy order to the MTF via the website the user authorises the account-holding bank to pay the purchase price and fee following the successful conclusion of the transaction.²³⁸ After deducting the fees, the account-holding bank credits the sale price to the seller’s account.²³⁹

Looking at the organisation of the MTF, it becomes clear that — in what hardly comes as a surprise — no liability is assumed, particularly for custody, and this function is transferred to a limited liability company.

If the Bitcoin blockchain or the protocol have security gaps, there will be errors and there could be, for instance, a total failure, leading to the question of whether the intermediary should answer for this.

If the clients give their consent, matched principal trading may be carried out on OTFs.²⁴³ OTFs do not have participants, but rather clients and thus access is not limited as is the case with regulated markets and MTFs.²⁴⁴

In summary, OTFs are only suitable for security tokens that represent non-equity instruments. Stocks are therefore explicitly not tradable on an OTF, and OTFs may therefore play a role as a secondary market for security tokens because there are relatively few access rules (retail clients are permitted). Looking at the primary market, there have already been several issues of bonds and derivatives with prospectuses²⁴⁵, and corporate financing via bonds is becoming more popular in Europe as well. Corporate financing, in particular, could become more significant in practice as a result of the lower overall issue costs.

Most SIs in Germany are banks that use the “Xetra Best Execution”²⁴⁹ system to execute client orders. This system reviews orders to determine if they can be executed using the bank’s own supply. The price is determined by the SI, unlike with an MTF, where the price is calculated on the basis of market participants’ buy and sell offers.²⁵⁰ If the bank does not have a corresponding supply or if the quantity of the order exceeds the bank’s current supply, the order is made available in the Xetra order book.²⁵¹

There are no obvious barriers to bilateral trading of security tokens by SIs — beyond the ones that MTFs face as well. SIs will not be discussed further in this paper, nor will OTC trading be a focus of this paper either.

In Liechtenstein a sufficient legal basis in public law for operating a regulated market is missing. MTFs and OTFs are suitable for multilateral trading in security tokens and may be important suppliers of liquidity. In particular, their organisation under private law enables a more flexible structure, for example, in terms of market regulations. Unlike OTFs, MTFs can also be used to trade equity instruments. Licensing as an SI is suitable for bilateral (regulated) trading.

In contrast to centrally organised markets, where securities law ensures the requisite trust in intermediaries, with decentralised exchanges the selection of the technological basis plays an important role in guaranteeing the desired functionality. On the one hand, this indirectly determines — for now, at any rate — the supply of trading pairs and, on the other hand, the capability of the exchange, especially the length of trading phase 1 (in particular, matching) as well as the post-trade phases²⁵², clearing and settlement.

Exchange order books are primarily used to find counterparties with a (suitable) supply (mechanism for finding counterparties) as well as to display the number of bids and requests in the order book in a way that results in as many contracts as possible (matching). With central (regulated) exchanges, the order book usually brings together the parties and their orders entirely automatically, resulting in individual contracts between the parties.

Decentralised exchanges do not always maintain their order books centrally (off-chain), but may also, in isolated cases, maintain them locally on a blockchain (on-chain).

On-chain²⁵⁵ order books are hosted on a blockchain and all orders for tokens²⁵⁶ are confirmed and settled via the blockchain. Thus, they do not have an actual operator; instead, the “operators” of the TT system provide, without any information, their computing power in exchange for compensation²⁵⁷ for the operation of the order book. Consequently, the selected TT system to a large extent also determines the speed²⁵⁸, the costs²⁵⁹ and the security of the order book. As a result, everyone cannot only view the public order book, but also (co-)host it themselves and send orders to the order book.²⁶⁰ Every order²⁶¹ requires a transaction — generally subject to a charge — on the TT system. Users pay for every update to the order book and must — depending on the consensus algorithm²⁶² — wait for the consensus and confirmation of the participants. This affects the speed of the order book considerably²⁶³. The advantage of on-chain order books lies in their decentralised nature, which, in turn, creates trust and is intended to replace the trust in a central intermediary. This trust stems from the knowledge that the unauthorised manipulation of decentralised on-chain order books is highly unlikely.²⁶⁴

Off-chain order books²⁶⁵, by contrast, are not provided on a TT system, but rather via a central system, such as a web server²⁶⁶ by an (licensed) operator. The speed is significantly higher and the costs much lower compared to on-chain order books, but security is therefore a bigger issue²⁶⁷. Users have to trust that the operators are displaying the orders correctly and keeping the information up to date. For example, it would be easy for operators to choose arbitrarily not to display orders or to manipulate markets by purposely displaying incorrect orders or orders that have already been deleted.²⁶⁸ Off-chain order books pose precisely those risks that regulation is intended to prevent, such as fake orders and insider trading (front running).

In addition to automated (usually central) matching systems²⁷⁰, in which a computer algorithm brings together the orders (automated order filling), there are also systems in which all orders are displayed (only) and takers²⁷¹ must look for and fill orders for counterparties (makers²⁷²) manual order filling. With automated order filling, an algorithm brings the orders together. This fully automated process saves time and makes it easier to conduct suitable trading transactions. However, participants need to trust that the algorithm is performing the matching securely and in compliance with the rules.²⁷³ With manual order filling, by contrast, instead of the aggregated orders being displayed in the order book, the individual orders for each party (maker) are displayed.

Makers must delete their resting orders from the system if the market price differs significantly from the price of the resting orders; otherwise, the orders might, depending on the system, be filled by one or more takers — at unfavourable conditions.²⁷⁶ In other words, the makers remains bound to the price until they delete the orders against a fee. This process is, of course, slower than automated matching systems. In exchange, however, users do not have to rely on a centrally organised party and the proper functioning of the order book and the matching process.²⁷⁷

The criteria for order books subject to licensing can be summarised as follows:

Whether trading via decentralised systems is subject to licensing depends on whether (1) the interests in the system are brought together (matching) and (2) a contract is concluded. If (decentralised) exchanges operate order books with automated matching that results in the conclusion of contracts, the service provider is obliged to obtain a license.²⁷⁹

Trading (the conclusion of the contract) is followed by phase 2, the clearing²⁹³ of the transaction that has been concluded (determination of the payment obligations).²⁹⁴ The previously mentioned long post-trade phase lasting from several days to years for traditional financial market transactions²⁹⁵ provides substantial potential for efficiency improvements, especially when the amount of time is compared with the time required to clear and settle transactions on TT systems:

In practice, the clearing process is often carried out by central counterparties. Art. 2, №1 EMIR defines the central counterparty³⁰² as:

They therefore act as a buyer for every seller, and a seller for every buyer and minimise the counterparty risk.³⁰⁴

This definition becomes clearer if we keep the following key functions of CCPs in mind: With the involvement of a central counterparty, the (bilateral) contractual relationships between the parties are replaced with new individual contracts with the central counterparty on the same terms and conditions. From a legal perspective, this process is known as novation.³⁰⁵

The central counterparty interposes itself between the buyer and seller, becoming the seller for the buyer and the buyer for the seller.³⁰⁶ In particular, the interposition of the central counterparty has a risk-minimising function, as it assumes the counterparty risk of the transaction.³⁰⁷ Thus, in the event of the insolvency of one of the parties, the central counterparty must perform the agreed obligation to other party. The central counterparty assumes the insolvency risk.³⁰⁸ The interposition of the central counterparty also makes the participants involved in the trade anonymous, as only the central counterparty knows the contractual parties (buyer and seller) to the transaction.³⁰⁹

Because the interposition of a central counterparty results in the convergence centrally of the obligations of a number of involved intermediaries, multilateral netting is possible. A simplified example can be presented using Fig 3: A owes B 2 and D 5 and holds a claim for 9 against C. C owes A 9 and holds a claim for 4 against B and 3 against D. Without a central counterparty, A and C would have to meet their individual obligations and C would have to hope for fulfilment by B and D. In the second figure, the interposition of a CCP results in the netting of all of these positions. Thus, A receives a net of 2 from the CCP, and C pays a net of 2 to the CCP.

This not only simplifies matters, but it also minimises the costs and risks.³¹¹ Thus, it is not only the individual participants involved in the transaction, who gain a risk-minimising intermediary as a counterparty in the form of the central counterparty, who benefit, but the market as a whole because of the increase in efficiency.³¹² The central counterparty implements various safeguards to minimise the risks (especially the risk of insolvency) that it assumes because of its position. In addition to clearing collateral, the central counterparty requires the participants to meet strict membership criteria. In addition to an initial margin³¹³, participants are also required to provide a variation margin³¹⁴ in the form of cash or the corresponding securities so they can meet all of their obligations in the event of the insolvency of one of the participants.³¹⁵

The smart contract can carry out the clearing function upstream as part of the settlement. Because clearing and settlement take just a few seconds to a few minutes in the TT system multilateral netting is no longer required as well. The counterparty risk is mitigated through the use of smart contracts because the parties to the transaction must transfer sufficient collateral to the smart contract. Thematically, this function fits in better with settlement and will therefore be discussed in greater detail in phase 3.

Art. 29 MiFIR expands the clearing obligations pursuant to EMIR and maintains a general³²⁸ clearing obligation for all derivatives that are traded on regulated markets.³²⁹

When using TT systems, a smart contract can carry out the clearing, as described above. A system subject to licensing pursuant to Art. 2, para. 1 in conjunction with para. 3 of the Finality Act is a:

Depending on the structure, an agreement on the use of a smart contract between the participants could be viewed as a system pursuant to the above-cited law and thus be subject to licensing. However, the smart contract, as a decentralised application on a TT system, has no legal capacity and therefore cannot conclude formal agreements. Nor is it a participant; rather, the participants pursuant to Art. 7 of the Finality Act³³² use the smart contract with the knowledge of its functionality. Because of the lack of legal capacity, it also cannot be entered in a register. The derivative clearing obligations must also be observed. The TVTG does not apply to clearing that is not subject to a registration obligation.

TT systems are best suited for the automatic calculations required for the settlement of financial market transactions; therefore, they can assume the settlement function of clearing houses or this is no longer necessary. The interposition of central counterparties in central systems mainly serves to mitigate the counterparty risk. When using TT systems, smart contracts can assume the functions of the clearing house, which are performed directly before the settlement. Pursuant to the TVTG, clearing is not subject to registration.

Phase 3, settlement, is especially relevant for the secondary market for security tokens. During this phase, the transactions that were concluded in phase 1 and cleared in phase 2 are fulfilled (conveyance). In the secondary market, the actual delivery³³³ of the transactions is carried out through corresponding custody account rebookings. The involved custodian banks receive data from the CCP in the form of electronic lists of the transactions to be settled if this has not already been done as part of the clearing process. If the financial instruments were traded without the involvement of a CCP, the instruments are transmitted by the central securities depository. The custodian banks review the custody accounts for the corresponding cover and approve the transaction for fulfilment. The central securities depository carries out the necessary rebookings, and a current delivery report or settlement list is prepared.³³⁴ In addition to the central counterparties (CCPs), the central securities depositories also play a significant role during the post-trade phase.

In Art. 2, para. 1 №1 in conjunction with Section A of the annex, the CSDR defines the central securities depository as a legal person that:

Central securities depositories (CSD), together with the central counterparties (CCP) contribute to a large degree in maintaining post-trade infrastructures. They safeguard financial markets and give market participants confidence that securities transactions are executed properly and in a timely manner.³⁴¹ The securities settlement systems operated by central securities depositories occupy a key position in the settlement process.³⁴² They serve as an essential tool to control the integrity of an issue, hindering the undue creation or reduction of issued securities.³⁴³ Central securities depositories serve as a sort of custodian bank for custodian banks in that custodian banks maintain an omnibus account for their entire client holdings with the central securities depository. Many national central securities depositories have set up mutual account relationships with foreign CSDs (so-called CSD links).

Depending on the system selected and the participants involved, settlement can be carried out in different ways. Delivery is often carried out step-by-step versus payment of the consideration (usually a monetary payment). This method of settlement is known as “delivery versus payment” (DvP). The financial instruments can also be exchanged (known as “delivery versus delivery”, (DvD)). These two methods reduce the settlement risk of the involved parties. Less common is settlement in which the two previous step-by-step variants are followed and instead there is no payment (“free of payment”, or FoP).³⁴⁴

For the trading of transferable securities — and thus including security tokens — via regulated markets, MTFs or OTFs, the CSDR³⁴⁵ imposes an obligation on the issuers of these securities to ensure that the securities are booked in a book-entry account. From 1 January 2023, this obligation applies for transferable securities issued after 1 January 2023. From 1 January 2025, it then applies for all transferable securities, thus including those issued before 1 January 2023.³⁴⁶ The issuer must arrange for the securities to be booked in book-entry form through immobilisation or subsequent to a direct issuance in dematerialised form.³⁴⁷ Therefore, when transferable securities, including security tokens, are admitted to an exchange pursuant to MiFID II³⁴⁸ they must be registered with a central securities depository in dematerialised form.³⁴⁹

In contrast to central systems in the form of central securities depositories, decentralised systems provide technical (trustless) solutions in order to provide securities settlement systems in a functionally adequate manner, but without a central (regulated) operator. In particular, phase 3 is in most cases — even when the organisation is otherwise central³⁵⁰ — through the use of TT systems (on-chain).³⁵¹ With decentralised systems, clearing is carried out completely automatically prior to settlement using a smart contract. With TT systems, the custody is inherent; if anything at all, users only have custody of the TT keys.³⁵² Decentralised exchanges have therefore also been developed so that the settlement and custody of the tokens do not have to be entrusted to a centrally organised institution. For this reason, the settlement of transactions is carried out on-chain so that users can theoretically review the settlement themselves to make sure it was carried out in accordance with the agreed rules. As with trading involving on-chain order books, the choice of trustworthy technology is important for settlement. Depending on the configuration, there can, in turn, be compatibility problems that make it difficult or impossible to carry out the settlement function in a trustless manner with technology. As noted above, smart contracts are suitable for clearing transactions. However, the counterparty risk is mitigated by the type of settlement. Because of a lack of legal subjectivity, smart contracts cannot act as a central counterparty; instead, they provide a certain type of technical settlement. In this case,

When different TT systems are used interfaces must be defined so the systems can communicate with one another. This often leads to delays in settlement, increased (coordination) effort and higher implementation costs. It also — and this is the biggest problem — results in heightened counterparty risk, as such risk can no longer easily be reduced by using the same technical basis (only one blockchain) to almost zero.

An example involving cryptocurrencies shows the incompatibility problems as a result of media discontinuities³⁵⁶ very well³⁵⁷: A would like to buy 1.24³⁵⁸ ETH³⁵⁹ for 100 XTZ³⁶⁰ and B would like to sell his 1.24 ETH at the same price. However, as A is not aware of the offer by B, he turns to a crypto-exchange³⁶¹. Here, it is important to know that XTZ “runs” on the Tezos blockchain³⁶² and ETH on the Ethereum blockchain, meaning this transaction is to take place between two different TT systems and there will be a media discontinuity.³⁶³ The crypto-exchange must therefore provide the technical infrastructure or connection to the respective blockchain for both sides of the ETH/XTZ trading pair.³⁶⁴ The crypto-exchange used by A and B maintained an order book and matched both orders. Following the successful trade, the rebooking is then carried out in the system similar to a trade involving a regulated exchange and the crypto-currencies³⁶⁵ is debited or credited to the user accounts. The users can then transfer the crypto-currencies to their own TT identifiers and take care of custody themselves. The crypto-currency exchange maintains custody of the tokens until they are transferred to the user accounts on their own TT identifiers, which, as past experience has shown, can be extremely risky.³⁶⁶ Here, therefore, the central intermediary³⁶⁷ — which needs to be trusted accordingly — serves as the interface between the two systems.

If the parties have found one another and agreed to the trade (1.24 ETH for 100 XTZ) without a central intermediary³⁶⁸, the question is how to carry out settlement (without a central counterparty or central securities depository). Why don’t the parties simply transfer their tokens directly?

Transactions on TT systems are generally irrevocable. If, in the previous example, one party sends XTZ to the address of the other party, the former must trust that the other party will also send the agreed quantity of ETH to original sending party’s address. This results in the classic counterparty risk. The parties do not need to assume there is any ill will if one party receives the XTZ but never sends the ETH to the other party. It is possible that the sender of the XTZ sent it to the wrong address and no longer has sufficient assets to send the corresponding (replacement) quantity of XTZ to the right address. One solution to this problem is known as an “atomic swap”.

The key feature of an “atomic” transaction is its binary result. Either all of the transaction’s settlement orders are carried out or none are. Applying this concept to the above example in which the parties would like to exchange XTZ for ETH and need to use two different TT systems to do so, an “atomic” transaction would ensure that all necessary settlement orders, for both the Tezos and the Ethereum blockchain, would be carried out or none would be carried out all.³⁷⁰

We will come back to the example in which A would like to exchange 1.24 ETH for 100 XTZ.

An atomic swap is carried out, for example, as follows:³⁷¹

to a smart contract on the Tezos blockchain, which blocks the 100 XTZ for the duration of blocking period A.

3. After the transaction is confirmed by A³⁷⁴, B sends:

to a smart contract on the Ethereum blockchain, which blocks the 1.24 ETH for the duration of blocking period B.³⁷⁷

4. After successful confirmation of the transaction by B and before the end of the blocking period B, A sends secret A to the smart contract on the Ethereum blockchain and receives the 1.24 ETH at recipient address A. Thus, B now knows secret A and can send secret A to the smart contract on the Tezos blockchain before the end of blocking period A and receives the 100 XTZ at recipient address B.³⁷⁸

The blocking periods ensure that, if a transaction is not completed, all settlement orders can be reversed. If in the above case:

Fig 4 shows how smart contracts, in conjunction with the blocking periods as well as the initially unknown secret A enable the secure reversal of the transaction (so-called hashed time lock contracts³⁷⁹).³⁸⁰ In addition to the relatively short blocking periods, the duration of an atomic swap depends largely on the transaction times of the TT systems that are involved. This sample transaction between Ethereum and Tezos takes about 8 minutes, which represents a substantial improvement in efficiency compared to a transaction on a regulated market, which can take several days.³⁸¹ Atomic swaps, however, also show how cumbersome it can be to carry out transactions on several TT systems without an intermediary. This is one of the main reasons why at present decentralised exchanges³⁸² mainly involve offers for tokens on Ethereum³⁸³ as trading pairs.³⁸⁴

One might think that the use of central securities depositories is a simpler solution than atomic swaps, and there is anyway the obligation to book securities in a book-entry account pursuant to the CSDR. However, it must be remembered that although the obligation to book securities in a book-entry account with a central securities depository can result in an improvement in efficiency at the European level compared to traditional securities trading, this may have a counterproductive effect on security tokens. The central securities depository would have to maintain its own interfaces for each TT system, and the question would arise as to which system would be the main one in the event of information asymmetries. Would the TT system for which the booking offers added value take precedence? If the register of the central securities depository takes precedence, then we’re back at the central system and the question is: What has been gained through the use of TT systems compared to uncertified rights in a uncertified rights register/ledger? In the first case, the central securities depository would have to ask whether, for liability reasons, it would even want to offer the corresponding services, as it would have no influence on TT systems. For example, it would be unable to correct “erroneous bookings”. How MTFs or OTFs would handle this if, of course, still not known.³⁸⁵

The above makes clear that custody using TT systems is inherent in the system and decentralised settlement methods that do not require licensing and registration are conceivable. At present, there is no obligation to book securities in a book-entry account (yet). However, this obligation would, in addition to the question of whether central securities depositories are even permitted to making bookings, result in friction. Furthermore, it would also be necessary to review any obligation to register as a TT token custodian or TT key custodian pursuant to the TVTG.

There is currently no central securities custodian in the EEA that offers services for security tokens. The question is whether central securities custodians will offer these services in the near future for security tokens, or whether this central securities custodian function will be made obsolete or provided by TT systems themselves through the use of TT systems.

Furthermore, in contrast to the traditional world, the booking obligation does not result in an improvement in efficiency and might, in fact, even destroy the potential increase in efficiency.

In practice, MTFs for equity instruments and OTFs for non-equity instruments appear suited as a secondary market for security tokens. Because trading on regulated markets is subject to public law, they will only become more relevant at a later date. For phase 1, trading, decentralised systems do not appear to offer any significant advantages and the current manifestations are not organised and regulated in a substantially different way than existing systems.

Because of the trend in Europe towards fully digital uncertified rights the requirement to certificate a right in the form of a physical document will likely soon be a relic of the past.³⁸⁶ In its report and proposal, the government states “that the clearing and settlement of securities transactions on TT systems is one of the most important areas of application for TT technologies.”³⁸⁷ Clearing might even become largely obsolete as a result of the use of TT systems. Because the post-trade phase could be organised in a substantially different way through the use of TT systems subjecting it to the current regime would be difficult and would, in part, be grossly disadvantageous. Here, the obligation to book securities in a book-entry account is probably the greatest challenge to the secondary market for security tokens.

The current regulatory concept for financial instrument transactions — which developed, of course, before the advent of trustworthy technologies — focuses mainly on intermediaries, and the European legislative acts on capital market law are set against the background of the freedom of the movement of capital and services in the domestic market as well as the protection of investors through the provision of sufficient information.³⁸⁸ The (necessary) services for a functioning secondary market for security tokens (trading, clearing, settlement, custody) fall under current financial market laws and are provided by intermediaries subject to licensing (such as regulated markets, MTFs, CSD, CCPs and banks).

The systems of regulated intermediaries are no doubt shaped by the regulatory objectives of capital market law (function protection, investor protection and financial market stability)³⁸⁹. By contrast, unregulated crypto-exchanges have managed to develop technical solutions outside the box in order to enable efficient (or even more efficient) trading, settlement and custody. While regulated stock exchanges often have potential to improve efficiency on the basis of various regulatory requirements, crypto-exchanges are exposed to more or less hidden risks. The example of the Börse Stuttgart MTF for cryptocurrencies shows the challenges even the listing of non-security tokens based on trustworthy technologies on regulated institutions presents and the extent to which existing exchanges, especially MTF, are compatible with TT systems. This example also shows that the settlement phase, in particular, poses challenges to regulated institutions. In centrally organised systems, a central securities depository carries out the task of, among other things, reallocating and reconciling securities holdings without the need for the various custodian banks to maintain a technical connection to one another. Thus, central securities depositories are supposed to be able to, for example, prevent the unauthorised creation or reduction of securities.³⁹⁰ At the European level, there has been an attempt to increase efficiency with respect to (cross-border) settlement by booking securities in a book-entry account. These centrally organised intermediaries communicate and interact primarily in a bilateral manner, which is why coordinating information among them is extremely cumbersome. Each party maintains its own sets of data and keeps the information from the intermediaries in its own dataset.³⁹¹

If all participants use the same system, a reconciliation in the true sense is no longer necessary. With TT systems, the functions of the clearing house, for example, are — if at all necessary — often provided together with settlement and the other functions — which would otherwise be carried out by the central securities depository — in part directly by the TT systems. However, there are already decentralised solutions for the order book and matching as well.

The question then is whether and which intermediaries will (or should) become obsolete as a result of the use of trustworthy technologies. This can be shown clearly by the example of the obligation to book securities in a book-entry account pursuant to the CSDR. Thus, the potential of security tokens to improve efficiency is at least levelled out by this obligation. There is a risk that the significant advantages of TT systems will be lost or go unused as a result of regulation. Looking at the individual functions and the purpose of existing regulations (ratio legis), some traditional intermediaries could soon disappear. By contrast, other intermediaries could assume new functions and, in turn, other service providers — such as those provided for in the TVTG — might now be needed.³⁹³

Although the TVTG was created with an awareness of the need to delineate it from other laws, in particular, from financial market law, its functional regulatory approach makes it possible to draw conclusions for financial market law.³⁹⁴ The TVTG regulates the key, critical functions of the token economy, including:³⁹⁵

and creates new roles subject to registration³⁹⁶, such as:

The SET hopes through its efforts to reduce settlement times, transaction costs and transaction risk.³⁹⁹ It also developed a blueprint that, like the Liechtenstein approach, defines and assigns rolls irrespective of the existing intermediaries.

The relevant conclusion for the secondary market as a sub-area of the capital market is that when using TT systems clearing is only required for derivatives and that exchanges by and large retain their function. In addition, settlement and custody roles will change.⁴⁰⁰

By comparing the results of the Digital Asset Programme of the Stock Exchange of Thailand (SET) with the TVTG⁴⁰¹, I will attempt to present a regulatory approach for the secondary market for tokens in the form of a role-based approach:

The following key functions are based on a comparison of the results of the SET⁴⁰² (marked with *) and the TVTG (marked with #):

Although the first three roles play a key role in the functioning of the capital market and in the life cycle of security tokens, they will not be discussed further in this paper as they are not relevant to the topic. Function/roles nos. 4 to 7 appear to be of particular interest, whereby token trading/exchange (no. 5) already appears to be properly regulated in the current legal framework (in particular, MTF, OTF and SI).

One of the key roles in the current system, custody or registration — currently carried out by the central securities depository — could, from a functional perspective, continue to exist to some extent. However, other duties performed by the central securities depository could become obsolete and new ones could be added. This thesis is strengthened by the regulatory approach that Liechtenstein has chosen with the TVTG⁴¹⁹ as well as the newly created crypto custody service in Germany, which is subject to licensing/authorisation⁴²⁰.

Thus, it would be conceivable for central securities custodians to hold new special TT keys — let’s call them TSD TT keys⁴²¹ — for all security tokens that have been issued in order, for example, to carry out the following functions:

The custody of these special TSD TT keys entails a high amount of risk and being in central custody they are also attractive to cyber-criminals as a single point of failure; however, they also present substantial potential for misuse by operators, which is why corresponding regulations seem to be in order.⁴²³ In addition, it is not desirable from the investor’s perspective for these TSD TT keys to be held in custody by the issuer in order to prevent abuse here as well. It is more conceivable for custody to be carried out by custodian banks. In addition to custody, this role could also perform an important role by conducting an integrity control of issues⁴²⁴, in particular, by maintaining a register of:

This role would check the identity of the legal subject with the identity role (see 5.1.2) before inclusion of the TT identifiers in the whitelist. Thus, it would be possible to control transactions and assign them to legal subjects at any time by checking both the register and the identity role. This would ensure that, if the legal conditions⁴²⁸ are met, it would be possible to create a connection to the beneficial owners. Separating these roles could also better protect the privacy of market participants and users. Thus, investors could use their own TT identifiers for every financial instrument issued by an issuer. By querying the register, it would be possible to assign all securities to a TT identifier.

Existing central securities depository could assume the role of custody/registration for the secondary market in security tokens.

Each regulated central securities custodian would be responsible for the security tokens registered with it and therefore could also book these security tokens for other central securities custodians (CSD links). In other words, a South African custodian bank could transfer and receive security tokens for its clients via its central securities custodian, which, in turn, is connected to a European central securities custodian for security tokens. Here, the CSD could, as the TSD (token securities depository), store, in addition to the TSD TT key, the TT key for the CSDs connected via TSD links and for its clients. Thus, trading could continue in a centralised and decentralised manner during a transitional phase. If the foreign banks use the same TT system, they could transfer, receive and store security tokens directly for their clients.

The antithesis would state that central securities depositories, on the basis of the current regulations alone, will not offer settlement services for security tokens for liability reasons⁴²⁹. This antithesis must be viewed in light of the fact that central securities depositories, by definition, have no control over trustworthy technologies. How, for example, would a central securities depository ensure that securities transactions involving security tokens on the Ethereum blockchain are carried out properly and in a timely manner? Or guarantee that security tokens are not generated or reduced in an unauthorised manner? However, this would mean that the EU/EEA would over the long term not be able to establish a functional and comprehensive secondary market for security tokens.

Bitcoin was created in response to the financial crisis with the aim of offering a global payment system with no intermediaries. Over time, the related technologies have shown potential and these technologies have been steadily developed and become increasingly interesting to the capital market. For the primary market, STOs have already shown that the use of trustworthy technologies can result in efficiency improvements and that they can comply with existing securities law. Under securities and civil law, the claims and membership rights that are relevant for the capital market may be issued and transferred in the form of uncertified rights maintained on TT systems — i.e. in the form of tokens. In practice, however, securities regulatory law already faces major challenge, especially the coming obligation to book securities in a book-entry account.

In addition to existing regulated stock exchanges, which are taking the first step towards listing cryptocurrencies and security tokens, there are unregulated exchanges for non-financial instruments and non-e-money (crypto-exchanges) that are seeking approval to offer security token trading.

Thus, regulated markets, MTFs and OTFs are currently able to offer security token trading. However, the obligation to hold new securities issues from 2023 and all securities from 2025 in a book-entry account with a central depositary as well as the clearing obligation for derivatives must be observed.

It remains to be seen whether phenomena such as fully decentralised exchanges with no operators are governed by de facto unenforceable regulations, or whether the normative force of the factual (see Jellinek) leads to the recognition of the innovative power and, in part, a departure from the regulatory model for intermediaries. The latter would be preferable, in my view, and Liechtenstein’s TVTG has clearly shown how to strike a balance between an openness to innovation and the various goods worthy of protection.

The example of the Börse Stuttgart MTF for cryptocurrencies shows the challenges even the listing of non-security tokens based on trustworthy technologies on regulated institutions presents, and whether and the extent to which existing forms of approval, especially MTF, are compatible with TT systems. In particular, the settlement phase poses challenges for regulated institutions. Whether the impending obligation to book securities in book-entry accounts and settlement via a central counterparty are ratio legis necessary, by contrast, shows the other side of the same reality. A technology appears to make the otherwise necessary trust in intermediaries obsolete and therefore much more efficient, more transparent and thus more secure. Key roles in the secondary market for security tokens would seem to be custody/registration, identity and fiat tokens. These roles “fit” in part with existing intermediaries and could be performed by them.

Custody of tokens seems to be diametrically opposed to the users of the new technology. Here, a centrally maintained register/ledger (like the register of a CSD) may be of benefit for the secondary market for security tokens as well. Should one risk relying too soon on technology that has not yet been designed for these applications and risk the stability of the European financial markets, which is precisely the purpose of the numerous regulations in this area, or risk missing an opportunity and incurring a competitive disadvantage that would be difficult to make up because the potential has gone unused as a result of excess regulation? At any rate, time is of the essence and these questions need to be addressed before the entry into force of the obligation to record securities in a book-entry account pursuant to the CSDR.

The thesis refers to Liechtenstein law.

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Regierung des Fürstentums Liechtenstein, Bericht und Antrag der Regierung an den Landtag des Fürstentums Liechtenstein betreffend die Abänderung des Personen- und Gesellschaftsrechts (Immobilisierung von Inhaberaktien und Einführung eines Sanktionsmechanismus betreffend die Führung des Aktienbuches bei Namenaktien) (BuA Nr. 69/2012).

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