Backed cryptocurrencies: registration-free offerings and option for funds

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The Securities and Exchange Commission (CVM) has already determined that cryptocurrencies are not “financial assets”, under Instruction 555/14 (ICVM 555), which regulates investment funds (which cannot, therefore, invest in virtual currencies). On the other hand, as they are not securities under Law 6,385/76, their public offering does not depend on registration with the authority. But what if instead of a cryptocurrency, whose only backing is itself, we suppose tokens convertible into an asset?


If this asset is a security, the token will also be: either it will be treated as a “security deposit certificate” (article 2, III, Law 6385/76), or as a contract “whose income comes from the effort of third parties” (article 2, IX, ibidem). As a security, the public offering is subject to registration, and the asset is subject to investment by funds (ICVM 555, article 2, V, “c” or “d”).

The framework changes if the backing is a commodity . Assuming a freely convertible token as its backing, it may suggest, at first glance, the incidence of Law 6385/76, article 2, VIII, which talks about derivatives: there B2B Lead is a contract between the asset holder and its issuer (power to exchange the token for the commodity, as in a commodity swap option ) ; there is, in an informal sense at least, an “underlying asset” from whose price the value of the token “derives” ; and its negotiation takes place in environments similar to organized counters.

In addition to these, there seem to be other factors, much less technical, that bring the two things together: novelty (although not as new as blockchain , derivatives have developed a lot in recent decades), some distrust and fear against “speculation ” (blaming derivatives for the 2008 bubble is as common as comparing bitcoin to 17th century tulips), and, finally, complexity.

Whether due to the ingenious contractual structures, the pricing models with Greek letters and partial derivatives, or the investment risk, derivatives are, not without reason, labeled “complex”. The complexity is analogous to that of blockchain , smart contracts and cryptocurrencies , replacing contractual sophistication with technological sophistication and differential calculation with software coding .

These similarities, however, are not enough to make commodity -backed cryptocurrency a derivative.



A derivative is a contract by which one party obliges another to transact under specified conditions at, or until, some specified time in the future. This is true for the four basic types of derivatives: options, swaps , futures, and forwards (anything else is a variation or combination of these). The possibility of using them to protect against risks is also essential (as we know, that's where they come from).

A cryptocurrency convertible into a commodity does not have an essential element in time like derivatives, and does not allow protection. Convertibility does not predetermine price; the moment in which it can happen has no limit or defined date; and it is not possible to protect an investment in a commodity with, after all, the commodity itself.