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4 CLIFFORD CHANCE NON-FUNGIBLE TOKENS: THE GLOBAL LEGAL IMPACT reduce the risk of counterfeiting and substitution by linking individual bottles of wine to a unique NFT (e.g. by way of a QR code) that proves provenance, history of ownership and provides a record of how and where the wine has been stored. A secure physical storage facility is likely to be a key component of any structure. As such, collectible wines can be virtually traded more easily while showing proof-of-ownership and proof-of- value. However, in the short term, liquidity may be more limited as investors will need to be comfortable with the technology and the operator of the platform, as well as the issues around secure and effective storage that typically accompany collectible wine. Royalty collection as a payment model Some NFTs are coded to incorporate smart contracts that can be programmed to include the automatic allocation of a portion of the amount paid by an NFT purchaser to the original owner/issuer of the NFT, thus giving the original owner an ability to realise the benefits of the secondary marketplace by way of "royalty" payments. Ratajkowski's NFT, for example, is understood to generate a payment for her every time that it is resold. Who is interested? • Potential issuers: as NFTs may represent either digital or physical underlying assets, they open up huge opportunities for monetisation in the creative sector. Although most NFT activity has been seen in the creative, sports, gaming and fashion sectors, we anticipate issuances across the broader retail sector. • Investors: NFTs make establishing provenance and traceability of assets much easier, making assets such as digital works of art easier to buy, sell and trade and broadening access to new asset classes. • Financial institutions: Trading in NFTs could one day be facilitated or engaged in by financial firms (acting as intermediaries or on their own behalf), mirroring the role they play in markets for more conventional forms of investments or property. As the market for NFTs develops and regulation evolves, regulated firms may seek to offer specialist intermediary services to help the market develop. Asking the right questions Understanding the legal and regulatory issues is critical before deciding whether to issue, purchase or deal in NFTs. Here are some questions to consider: Are there any licensing requirements? Most jurisdictions do not yet have legislation or regulations specifically applicable to NFTs, but a host of existing regulations may still apply. This will depend on: • the token's characteristics and features; • the activities performed in respect of such token; and • the territorial scope of the particular regulatory framework. For example, in the UK, the Money Laundering Regulations 2017 define cryptoassets as "a cryptographically secured digital representation of value or contractual rights that uses a form of DLT and can be transferred, stored or traded electronically", and set out activities that, when performed in respect of cryptoassets, trigger a registration requirement. Where NFTs meet this definition, exchanging them for cash or other cryptoassets or making arrangements for others to do so, would trigger a registration requirement. Where an NFT does not qualify as a cryptoasset, for example because it does not represent value or contractual rights, the regime does not apply to it. Regulatory regimes vary significantly globally, so it will be necessary to analyse the regulatory position in each jurisdiction where the NFT is issued, marketed and where key participants are based. Are there any tax implications? Whilst tax authorities globally have made progress in considering and issuing guidance on the taxation of cryptocurrencies, the tax treatment of other cryptoassets, including NFTs, remains unclear. Most jurisdictions consider cryptoassets to be property forPDF Image | NON-FUNGIBLE TOKENS GLOBAL LEGAL IMPACT
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