In a Zawya exclusive interview, GEMINI, digital asset exchange founders expressed their interest in applying for a license in UAE. As per the article US crypto exchange Gemini, is interested in a license in UAE because of the hostility and lack of clarity in the USA. Several other global virtual asset service providers have already expressed their interest as well including Coinbase, Bittrex, IoTa, and Circle. 

The license application is set to come after meetings in both Dubai and Abu Dhabi.

Cameron and Tyler Winklevoss are the founders of GEMINI. Tyler told zawya, “There is a lot of customers and amazing investors here.” As for the USA, Tyler told Zawya it as hard to get things done in the US.

He added, “You don’t want the Wild West, but you also don’t want a wall or a gate to innovation, getting that balance right builds the healthiest markets. We have always believed that, and always tried to get that message across to the regulators to provide that clarity and consistency in guidelines, because we think that the outcomes are just so positive.”

Prior to this Gemini announced that it was launching its European HQ in Dublin. But Tyler affirmed to Zawya that Gemini would not be giving up on the USA.

This would make Gemini the latest global entity to see regulation in UAE, over the past two months, entities such as CoinBase, IoTaCircle, Bittrex, have all expressed their interest to set up in the UAE.

This is being further pushed with the new UAE Central Bank’s AML CFT guidance for financial entities regarding their dealings with virtual asset service providers.

The UAE Central Bank has issued its long awaited virtual assets and virtual assets service provider framework under the umbrella of a new guidance on anti-money laundering and combating the financing of terrorism (AML/CFT) for licensed financial institutions (LFIs) with a focus on the risks of dealing with virtual assets.

The actual document is more telling than the initial press release. In reality the UAE Central Bank has clarified what is considers as virtual assets and who can offer services in this realm, as well as how banks and financial institutions will work with VASPs when it comes to opening accounts for them and meeting compliance requirements. It also makes clear that virtual assets are not considered a legal tender in the UAE.

Now a lot has been made clear. Earlier this month, there was a position for a Fintech virtual assets senior manager job at a UAE Bank who was required to be specialized in Fintech and virtual assets compliance from a finance crime perspective, which was eye catching because there wasn’t anything yet announced from the UAE Central Bank. Yet now one thing is for certain, banks in the UAE will be scrambling to hire talents who understand the virtual asset ecosystem so they will be able to comply with the recent guidance.

Definition of virtual assets and VASPs

First the UAE Central Bank has defined as they mention in alignment with FATF definitions, what virtual assets are, leaving out of the definition CBDCs and security tokens, as well as some NFTs. As per the guidance, “A virtual asset is a digital representation of value that can be digitally traded, or transferred, and can be used for payment or investment purposes, excluding digital representations of fiat currencies, securities, and other funds (such as those separately regulated by the competent authorities of the UAE, including the CBUAE, SCA, VARA, FSRA, and the Dubai Financial Services Authority (“DFSA”).”

It goes on to explain, “Virtual assets, so defined, typically include assets commonly referred to as cryptocurrencies, cryptocoins, payment tokens, exchange tokens, and convertible virtual currencies. Without prejudice to the definitions in the laws and regulations referred to above, stablecoins may be considered either virtual assets or traditional financial assets depending on their exact nature. No asset should be considered a virtual asset and a traditional financial asset (e.g., a security) at the same time.”

The guidance also discusses payment tokens offered and licensed by payment token service providers. Payment Tokens are defined as a type of Crypto-Asset that is backed by one or more Fiat Currency, can be digitally traded, and functions as a medium of exchange and/or a unit of account and/or a store of value, but does not have legal tender status in any jurisdiction. A Payment Token is neither issued nor guaranteed by any jurisdiction and fulfills the above functions only by agreement within the community of users of the Payment Token. Payment Token Service Providers, in turn, are defined as persons engaged in Payment Token issuing, Payment Token buying, Payment Token selling, facilitating the exchange of Payment Tokens, enabling payments to Merchants and/or enabling peer-to-peer payments, and Custodian Services related to Payment Tokens.

What Virtual assets are not

As for NFTs, they are not considered virtual assets, but this does depend on the nature of the NFT and its function. As stated, “Some NFTs that on their face do not appear to constitute VAs may fall under the VA definition if they are used for payment or investment purposes in practice.”

The guidance makes it clear that the Central Bank of the UAE does not accept or acknowledge virtual assets as a legal tender/currency in the UAE; rather, the only legal tender in the UAE is the UAE dirham. As such, those accepting VAs as payment for goods and services or in exchange for other assets bear any risk associated with the future acceptance or recognition of VAs.

The guidance adds,  by definition VAs cannot be digital representations of fiat currencies, securities, or other separately regulated financial assets, a bank record maintained in digital format, for instance, that represents a person’s ownership of fiat currency is not a VA. However, a digital asset that is exchangeable for another asset, such as a stablecoin that is designed to be exchangeable for a fiat currency or a VA at a fixed rate, could still qualify as a VA, depending on the relevant features of such a stablecoin.

VASP activities overview

There are five basic activities that fall under VASPs as per the UAE Central Bank, but these are not considered as comprehensive only meant for illustrative purposes. They include virtual asset exchange, virtual asset brokers, who transfer ownership of VA from one user to another, virtual asset custodians, P2P exchanges, remittance payments, payment for nonfinancial g goods or services, or payment of wages. A provider offering such a service will likely be a VASP.

The UAE Central Bank has even considered decentralized virtual assets Exchanges or decentralized finance (“DeFi”) application creators, owners, and operators as VASPs given they maintain control or sufficient influence in the DeFi arrangements, even if those arrangements seem decentralized, may fall under the definition of a VASP where they are providing or actively facilitating VASP services. For example, there may be control or sufficient influence over assets or over aspects of the service’s protocol, and the existence of an ongoing business relationship between themselves and users; even if this is exercised through a smart contract or in some cases voting protocols.

Even entities that provide related financial services to issuer’s who offer or sell virtual assets through participation in and provision of financial services related to an issuer’s offer or sale of a Virtual asset through activities such as initial coin offerings (“ICOs”) are considered as VASPs.

Licensed Financial Institutions AML CFT

Finally as per the AML-CFT Decision, every natural or legal person who carries out any VASP activities, provides VASP products or services, or carries out VASP operations from the state must be licensed, enrolled, or registered by a competent supervisory authority in the UAE.

LFIs are strictly prohibited from establishing relationships or processing transactions with individuals or entities that perform covered VASP activities and are not licensed to do so by UAE authorities. It is therefore essential that LFIs form an understanding of whether its customers perform covered VASP activities and, if so, whether they have fulfilled applicable UAE licensing requirements. LFIs are not permitted to establish relationships or process transactions with foreign VASPs that have not secured a license to operate as a VASP from UAE authorities, even if the foreign VASP is duly licensed or registered outside the UAE.

The guidance warns that LFIs may be indirectly exposed to VA or VASP activity through its customers that use their account or relationship with the LFI to provide downstream financial services to VASPs. In the case of VASP customers, this may include the provision of accounts or custodial wallets that can be used directly by customers of a third-party VASP to transact business on the customer’s own behalf.

The AML-CFT Law brings virtual assets and virtual asset service providers within the scope of the UAE’s AML/CFT legal, regulatory, and supervisory framework. Under Articles 9 and 15 of the AML-CFT Law, VASPs must report suspicious transactions and information relevant to such transactions to the UAE FIU, and under Articles 13 and 14, supervisory authorities are authorized to assess the risks of VASPs, conduct supervisory operations (including inspections) of VASPs, and impose administrative penalties on VASPs for violations of applicable laws and regulations.

Conclusion

In conclusion this is the first comprehensive framework that the UAE Central Bank has published which will allow a select number of VASPs to be able to deal with the licensed financial institutions in the UAE. It will not be easy for the financial sector as the AML and CFT requirements are exhaustive, but it will also not be easy for the VASPs.

Moreover, there is one gap that seems huge and over looked by the UAE Central Bank, and that is what if licensed financial institutions actually want to offer Virtual asset services. So what if a bank actually wants to offer VA custodial services, or VA payment services, or brokerage services, can they both be the provider and the client and what happens to AML and CFT requirements then.

In Bahrain for example the Central Bank is allowing crypto entities to move into the other financial arenas and has even allowed the first digital bank which deals in digital assets to make their base in the country.

Another question that can be raised, is that in a country which has called for more international cooperation and coordination when it comes to regulating virtual assets, then concurrently does not allow any of its financial institutions to deal with any VASP not regulated in the UAE even if they are regulated in other jurisdictions, what precedence is the UAE making in this regards and is reciprocity the new name of the game?

With regulations taking force in UAE especially when it comes to virtual assets, the country that once boasted of having 1800 blockchain and crypto entities might see that number dwindle as most of these companies will not be able to comply to the regulatory requirements rendering them unable to receive services from the banking sector. 

We can already see this decline in number on the new website for VARA, where there were once dozens of names listed as on the course of receiving licenses, today there is a handful.

Next to be published will definately be the payments rulebook under VARA which was missing before. Can’t wait to see what that will bring to the table. 

The Central Bank of the UAE (CBUAE) in a press release announced that it has issued a new guidance on anti-money laundering and combatting the financing of terrorism (AML/CFT) for Licensed Financial Institutions (LFIs),  banks, finance companies, exchange houses, payment service providers, registered hawala providers and insurance companies, agents and brokers as well as setting clear descriptions of virtual assets and Virtual asset service providers business models. 

His Excellency Khaled Mohamed Balama, Governor of the CBUAE, stated, “The new guidance related to the virtual assets sector contribute to strengthening the supervisory and regulatory frameworks of the Central Bank to combat money laundering and the financing of terrorism. We are constantly working to enhance efforts and strengthen the awareness of licensed financial institutions to prevent all kinds of financial crime activities, and reduce potential risks to protect the financial and monetary system and maintain its soundness and stability, in line with the Financial Action Task Force standards.”

The new guidance will assist LFIs’ understanding of risks and effective implementation of their statutory AML/CFT obligations, and takes Financial Action Task Force (FATF) standards into account. It will come into effect within one month.

The new guidance discusses the risks arising from dealing with virtual assets (VA) and virtual asset service providers (VASP) and sets out clear descriptions of VAs, VASPs and VASP business models. The guidance describes various channels and mechanisms of interaction between LFIs and VASPs.

The guidance outlines the customer due diligence (CDD) and enhanced due diligence (EDD) for LFIs towards potential VASP customers and counterparties, with the aim of de- risking, supporting them with training programmes, a governance system and record- keeping mechanisms.

This comes after MENA FATF adopted several recommendations proposed by Abu Dhabi including those pertaining to virtual assets.  

The Central Bank of the United Arab Emirates and the Hong Kong Monetary Authority in a bilateral meeting in Abu Dhabi on 29 May, have agreed to enhance collaboration between the two jurisdictions on virtual asset regulations and development.  

In addition, the two central banks facilitated discussions between their respective innovation hubs on joint fintech development initiatives and knowledge sharing efforts. A joint working group led by the CBUAE and HKMA, with support from the relevant stakeholders of the two jurisdictions’ banking sectors, will be formed to take forward the agreed initiatives.

Following the bilateral meeting, the two central banks, joined by senior executives from the UAE and Hong Kong banks, conducted a seminar on key opportunities to pursue between Hong Kong and the UAE. The seminar covered discussions on possible arrangements to facilitate better cross-border trade settlement, how UAE corporates can better utilize the Hong Kong financial infrastructure platforms to access Asia and the Mainland markets, as well as financial and investment solutions and capital markets opportunities in the Guangdong-Hong Kong-Macao Greater Bay Area (Greater Bay Area).

Banks operating in the UAE that participated in the seminar included First Abu Dhabi Bank, Abu Dhabi Islamic Bank, Emirates NBD, Industrial and Commercial Bank of China, Bank of China, HSBC and Standard Chartered, whilst participation from banks operating in Hong Kong included Bank of China, Citi, HSBC and Standard Chartered.

H.E. Khaled Mohamed Balama, Governor of the CBUAE, stated, “We are pleased to have welcomed the Hong Kong Monetary Authority and its delegation to the UAE as we look to build on our central banks’ existing and robust relations. During the day’s discussions, we explored deepening collaboration across several important areas including financial market infrastructure development and mutual opportunities for growth in digitization and technological advancement.”

Eddie Yue, Chief Executive of the HKMA, added, “These events enhanced the collaboration between the central banks of Hong Kong and the UAE in a number of important areas, and provided a platform for financial institutions and corporates from Hong Kong and the UAE to step up exchange and collaboration.  Hong Kong and the UAE are two financial centers sharing many complementary strengths and mutual interests, and there is much room for market participants from these two places to work together and build up the connectivity.”

This is not the first time the Central Bank of UAE has cooperated with Hong Kong Monetary Authority, prior to this they worked on the mBridge CBDC project. 

UAE based HAYVN, a digital asset payment, trading, custodian service provider regulated in the UAE, Cayman Islands, Australia, British Virgin Islands, has also received a VASP ( Virtual asset service provider) license from European jurisdiction, Lithuania.

The Lithuanian Financial Crime Investigation Service (FNTT) has provided HAYVN with a VASP license.

According to HAYVN, by obtaining the VASP license from the Lithuanian regulators, HAYVN is further equipped to offer its suite of services throughout Europe.

“We are delighted to have obtained the VASP license from Lithuanian regulators,” said Christopher Flinos, CEO of HAYVN. “This achievement solidifies our position as the trusted and compliant European cryptocurrency provider, enabling us to deliver innovative solutions to clients across Europe. HAYVN remains committed to upholding the highest standards of regulatory compliance and security, as we continue to expand our presence and contribute to the growth of the digital asset ecosystem globally.”

Leago Papo, Director of Compliance and Regulatory Affairs at HAYVN, added, “Obtaining the VASP license from Lithuanian regulators is a significant milestone. We have worked diligently to ensure that our operations adhere to the most rigorous compliance standards. This license reaffirms our commitment to maintaining regulatory compliance across multiple jurisdictions and showcases our dedication to building trust with our clients and regulators alike.”

In a recent announcement by Dubai’s virtual asset regulatory authority ( VARA), the Department of Economy and Tourism is now offering regulated virtual assets activities in its branches.

This means that Virtual Asset Service Providers (VASPs) seeking to conduct business in Dubai’s mainland or make changes to their current commercial licenses may submit their applications for the below-mentioned activities at DET branches.

The list of Regulated Virtual Assets Activities (require a license from VARA) include, VA Advisory Services,  VA Broker-Dealer Services,  VA Custody Services,  VA Exchange Services, VA Lending and Borrowing Services and  VA Management and Investment Services. In addition to VA propriety trading which requires a NOC from VARA. 

Firms carrying on VA activities in Dubai [except DIFC] prior to 7 February 2023 [Legacy VASPs], must have their applications seeking regulatory oversight or relevant guidance from VARA by the final deadline of 30 April 2023.

As per the announcement, firms that have failed to comply with the regulatory framework by the aforementioned deadline must comply immediately to avoid substantial punitive measures including material fines/penalties and potential firm closure.

DET Centres offering commercial licences for the Regulated Virtual Assets Activities are available in – Al Barsha Mall, DED Café, Palm Strip Mall Jumeriah,  Al Twar Centre , Dubai Mall and  Clock Tower Deira

In a recent tweet, Qatar’s AhliBank warned customers against, trading, buying and selling virtual assets and currencies through accounts and banking services, citing the reasons as being associated with high risks.

According to the statement, “The regulators have banned trading, buying and selling virtual assets and currencies through accounts and banking services, as they are associated with high risks. Please be careful and don’t deal with any person or entity that provides trading services in virtual assets and currencies through your bank account and banking services, to avoid any risks that may arise as a result of trading in these virtual assets and currencies. “

The statement reflects the growing interest in clients for trading in virtual assets, while the regulatory authorities in Qatar specifically the Central Bank have yet to regulate this sector or introduce crypto exchange licenses. 

In 2022, CoinMENA, crypto broker exchange had announced that it was now serving clients in Qatar, as does Binance and other international crypto exchange platforms. 

Yet Qatar has been moving forward both in Blockchain, DLT, and digital assets with the recent news coming from Qatar Financial Authority Center which has just finalized its digital assets framework.

During the recent MENA FATF (Financial Action Task Force) regional body’s workshop attendees adopted several recommendation proposes by Abu Dhabi including those pertaining to virtual assets, in the fight against money laundering, and terrorism.

The Abu Dhabi recommendations consist of 24 best practice commitments made by MENAFATF member states for enhancing regional efforts to counter money laundering and financing of terrorism.

The recommendations were agreed at the closing of the MENAFATF Typologies and Capacity Building Workshop held between 6-8 March 2023 under the patronage of H.H. Sheikh Abdullah bin Zayed Al Nahyan, Minister of Foreign Affairs, and Chairman of the Higher Committee Overseeing the National Strategy on Anti-Money Laundering and Countering the Financing of Terrorism, and hosted by the UAE Executive Office of Anti-Money Laundering and Counter Terrorism Financing (EO AML/CTF) in Abu Dhabi.

Of the 24 recommendation five pertained to virtual assets. The first discussed enhancing MENAFATF countries’ understanding of the requirements of Recommendation 15, including the sectorial risk assessment of virtual assets, given the rapid development in this field.

The second recommendation  urged countries to build capacities in the field of virtual assets with the competent authorities, especially in the field of supervision, control, investigations and management of seized and confiscated assets and the extent of their use in evading sanctions.

While the third recommendation proposed continuing to adopt new technologies to mitigate the risks of virtual assets in partnership with the private sector.

As for the fourth and fifth recommendations, one proposed enhancing national cooperation in following up on issues related to virtual assets between the competent authorities and urged the use of best practices such as specialized task forces (working groups), while the other proposed raising awareness among member countries about the risks of cybercrime, particularly ransom ware and related payment methods, especially concerning VAs.

Suliman Al Jabrin, Executive Secretary of MENAFATF, stated that regional alignment on best practices has created of a set of shared standards that strengthens the national AML/CFT systems of member states. He added, “I am delighted that the 24 recommendations made by MENAFATF members in Abu Dhabi cover a comprehensive range of the most pressing issues facing us today. It is right that the list includes Virtual Assets (VA), ML typologies, Public-Private Partnerships, regional assessments, and multiple means of expanding cooperation. The MENA region plays an important role in the global economy, and the Abu Dhabi recommendations send a strong signal to our international partners that there is no place for financial crime in our part of the world.”

According to a recent Baker McKenzie client alert, the UAE Security and Commodities Authority has issued two new regulations pertaining to virtual assets. UAE SCA will be creating a list of accepted virtual assets as well as regulations allowing already regulated financial institutions to offer virtual asset services while amending capitalization requirements for virtual asset exchanges, custodians, and brokers.

These regulations while published in Arabic were translated by Baker Mckenzie in their client  report.

As per the report, the SCA has issued two new decisions,  (26/RM) of 2023 in relation to Virtual Assets Platform Operators (the “SCA VA Exchange Regulations“); and  Decision No. (27/RM) of 2023 amending SCA Chairman of the Board of Director’s Decision No. (13/RM) of 2021 in relation to the SCA Rulebook (the “SCA Rulebook Amendments Regulations“).

The SCA VA Exchange Regulations define VAs as a “digital representation of a value that can be traded or digitally transferred and can be used for investment purposes, and does not include digital representations of fiat currencies, securities, or other funds”.

The SCA VA Exchange Regulations clarify that VA Exchange Platform Operators will be subject to certain provisions of: the SCA Board of Director’s Decision No. (2/R) of 2001 concerning the Regulations as to Trading, Clearing, Settlement, Transfer of Ownership and Custody of Securities, as amended (the “SCA Trading & Settlement Regulations“); and the SCA Rulebook (SCA Chairman of the Board of Director’s Decision No. (13/RM) of 2021).

Samir Safar-Aly, MENA FinTech & AI Lead at the international law firm, Baker McKenzie, told Lara On the Block, “SCA is fulfilling its role as the federal level VASP regulator in the UAE. Following Cabinet Resolution No. 111 of 2022, in addition to being the UAE’s federal-level securities, commodities and capital markets regulator, SCA became the federal VASP regulator. This is a positive step towards making the UAE, as a whole, a jurisdiction with a supportive legal and regulatory framework for Virtual Assets and Crypto-related services. There are significant consumer protection and financial crime related concerns within the Virtual Assets and Crypto sector, and having a regulatory framework to support growth is what many major players in this space are often struggling to find in other jurisdictions.”

Baker Mckenzie  states that the SCA have taken a similar approach to that of the DIFC’s DFSA and the ADGM’s FSRA (both of which have taken a ‘Recognized Crypto Token’ / ‘Accepted Virtual Asset’ approach) in that no VAs may be traded on such platforms unless approved on the SCA’s Official List of Virtual Assets.

UAE Cabinet Resolution 112 outlines that VARA’s decisions shall be consistent with the decisions issued by the SCA.

As for the relationship between SCA and other regulatory authorities, Samir, explains to Lara on the Block, “Under both Cabinet Resolution No. 111 and No. 112 of 2022, the relationship between SCA and other “Local Licensing Authorities” (which only includes VARA at the moment), makes it clear that the SCA would retain sole regulatory remit over “digital securities” and “digital commodities” in Onshore UAE. Separately, UAE Cabinet Resolution 112 outlined the relationship between the SCA and VARA in particular, whereby there will be joint regulatory roles between the two authorities through delegated authorities (granted to the SCA under UAE Cabinet Resolution 111) to VARA accordingly.”

As per Baker McKenzi, the second of the New SCA Regulations, amends certain provisions of the SCA Rulebook in relation to VAs and includes VAs to the list of products that may be dealt or brokered by SCA-regulated financial institutions.

The definition of ‘Brokers’, ‘Dealers of Financial Products’, ‘Financial Consultation’, ‘Portfolio Management’ and ‘Custody’ services, all now extend to and cover VAs, with relevant compliance-related obligations.

Samir explains, “Under the new SCA regulations, existing SCA-regulated financial institutions can extend their activities to Virtual Assets. However, this will need to be in collaboration with discussions with SCA to ensure that adequate systems, controls, expertise and disclosures are in place, including relevant amendments to regulatory business plans and compliance / AML policies”

Finally a new Category 7 License in relation to VASPs has been added to the SCA Rulebook, outlining the following capital requirements, a capitalization of AED 1 million plus six months of operating expenses if the activity is operating a VA Exchange Platform only; a capitalization of AED 2 million if the activity is the Brokerage of VAs; a capitalization of AED 4 million plus six months of operating expenses if the activity is the Custody of VAs; and a capitalization of AED 5 million plus six months of operating expenses if the operator of a VA Exchange Platform provides any other VA service.

As for the future, Samir expressed that both digital Securities and digital Commodities, under Cabinet Resolution No. 111 of 2022 remain in the regulatory purview of SCA in Onshore UAE including the ‘Onshore’ Dubai territory that VARA covers. He expects SCA to issue guidance relevant to such products in the near future.

As for payment tokens, Samir clarifies that this is the regulatory remit of the Central Bank of the UAE (CBUAE). When VARA issued its Rulebooks in February this year, it noticeably did not issue its Payments & Remittances Services Rulebook. He states,” I would expect this to be issued in due course once similar arrangement to those that have taken place between VARA and SCA, take place between VARA and the CBUAE.”

According to a recent blog post published by CoinBase the second biggest global crypto currency exchange, the company revealed that is in talks with UAE’s regulator in Abu Dhabi, FSRA ( Financial Service Regulatory Authority)  part of ADGM (Abu Dhabi Global Market) to expand its regulated operations to the UAE.

The expansion is part of its global scale to go broad and deep. As part of its strategy, Coinbase will establish regulated entities and local operations in high-bar regulatory jurisdictions abroad to focus on international growth.

As per the blog post, “Coinbase is focused on international growth and is working with several high-bar international regulators to establish regulated entities abroad that safely facilitate trading solutions and provide products the crypto community demands. Coinbase will continue to launch foundational products that are a gateway to Web3 and crypto across the globe while launching localized infrastructure and public facing products with a full suite of services.”

The post adds, “We have accelerated our UAE plans with Abu Dhabi Global market regulator. We are in discussion with the Financial Services Regulatory Authority (FSRA) in Abu Dhabi Global Market (ADGM) regarding a potential license for a regulated exchange. ADGM is a renowned international financial services center. ADGM is known for having a well-regarded, comprehensive regulatory framework and is committed to operating a fair and efficient regulatory environment for global market participants. ADGM has developed and supported the regulation and trading of cryptocurrencies and Coinbase intends to help further their vision. “

This comes as Binance seeks to receive a regulated license from both ADGM and Dubai’s Virtual asset regulator. While others such as Kraken has closed its operations in UAE.