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Blockchain Peru Legal 1661372592
Blockchain Peru Legal 1661372592
Blockchain
2022
Peru: Law & Practice
Oscar Montezuma Panez, Fiorella Colonna Murgueytio,
Anita De la Piedra Yepez and Angela Valdivia Romero
Niubox
practiceguides.chambers.com
PERU
Colombia
Law and Practice Eccuador
Brazil
Contributed by:
Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Peru
Anita De la Piedra Yepez and Angela Valdivia Romero
Niubox see p.11 Bolivia
CONTENTS
1. Blockchain Market and Business Model 5. Capital Markets and Fundraising p.7
Overview p.3 5.1 Initial Coin Offerings p.7
1.1 Evolution of the Blockchain Market p.3 5.2 Initial Exchange Offerings p.7
1.2 Business Models p.3 5.3 Other Token Launch Mechanisms p.7
1.3 Decentralised Finance Environment p.3 5.4 Investment Funds p.7
1.4 Non-fungible Tokens p.4 5.5 Broker-Dealers and Other Financial
Intermediaries p.7
2. Regulation in General p.4
2.1 Regulatory Overview p.4 6. Smart Contracts p.7
2.2 International Standards p.4 6.1 Enforceability p.7
2.3 Regulatory Bodies p.4 6.2 Developer Liability p.8
2.4 Self-regulatory Organisations p.5
7. Lending, Custody and Secured
2.5 Judicial Decisions and Litigation p.5 Transactions p.8
2.6 Enforcement Actions p.5 7.1 Decentralised Finance Platforms p.8
2.7 Regulatory Sandbox p.5 7.2 Security p.8
2.8 Tax Regime p.6 7.3 Custody p.8
2.9 Other Government Initiatives p.6
8. Data Privacy and Protection p.8
3. Cryptocurrencies and Other Digital 8.1 Data Privacy p.8
Assets p.6
8.2 Data Protection p.9
3.1 Ownership p.6
3.2 Categorisation p.6 9. Mining and Staking p.9
3.3 Stablecoins p.6 9.1 Mining p.9
3.4 Use of Digital Assets p.6 9.2 Staking p.9
3.5 Non-fungible Tokens p.6 10. Decentralised Autonomous Organisations
(DAOs) p.9
4. Exchanges, Markets and Wallet
Providers p.6 10.1 General p.9
4.1 Types of Markets p.6 10.2 DAO Governance p.9
4.2 On-Ramps and Off-Ramps p.6 10.3 Legal Entity Options p.10
4.3 KYC/AML p.6
4.4 Regulation of Markets p.7
4.5 Re-hypothecation of Assets p.7
4.6 Wallet Providers p.7
2
PERU LAW AND PRACTICE
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
3
LAW AND PRACTICE PERU
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
Even though the adoption of such services is assets (VA) and VA service providers (Recom-
slow, there is growing interest from Peruvians mendation 15).
involved in crypto-economics in using interna-
tional services such as “liquidity pools”, “stak- In 2020, following the above recommendation,
ing”, “decentralised exchanges”, “farming”, the Peruvian Financial Intelligence Unit, with
“flash loans”, etc. co-operation from the Deutsche Gesellschaft
für Internationale Zusammenarbeit (GIZ), pub-
There are no specific rules applicable to DeFi lished a report entitled “Situational Diagnosis,
platforms. Comparative Legislation and Exposure to ML/
TF Risks in Peru”, which recommends that future
1.4 Non-fungible Tokens regulation should be focused on activities (rather
There is growing interest from local artists devel- than subjects), such as VA-related activities car-
oping projects involving non-fungible tokens ried out by regulated financial institutions, virtual
(NFTs), such as Wakoverso, Llamageddon and currency exchange, VA payment service provid-
Llama Punkz. There are also NFT-based projects ers, wallet providers, VA deposit/custody service
such as Ecoladrillos, which is an association that providers and participants in the issue and sale
seeks to raise funds with NFTs in order to reduce of VA.
the impact of plastic on marine life.
The SBS recently proposed the inclusion of VA
The marketplaces most used by Peruvians are service providers as “obliged subjects” within
Opensea, Singular and Minteable, and storage the scope of AML regulation, to the Ministry of
is mainly on InterPlanetary File Systems (IPFS). Justice and Human Rights. As of May 2022,the
proposal is still being analysed, but if it is accept-
According to recent research from Finder.com, ed, the following activities will be included within
one in ten Peruvians users owns an NFT, mean- the scope of AML legislation:
ing that Peru ranks 10th in NFT ownership
among 20 countries. • exchanges between assets, virtual currency
and fiat currency;
• exchanges between one or more VA currency
2 . R E G U L AT I O N I N forms;
GENERAL • VA transfers;
• custody and/or administration of VA or instru-
2.1 Regulatory Overview ments that allow control over VA; and
There is no specific regulatory regime in Peru • participation in and provision of financial
that applies to market participants using block- services related to an issuer offering and/or
chain technology or cryptocurrencies. selling VA.
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PERU LAW AND PRACTICE
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
manages international reserves, issues notes 2.5 Judicial Decisions and Litigation
and coins, and periodically reports on the There are no important judicial decisions that
country’s finance indicators; have played a role in interpreting the legal regime
• the Superintendence of Market Securities applicable to blockchain in Peru.
(SMV) regulates the public offering and trad-
ing of securities; 2.6 Enforcement Actions
• the SBS regulates and supervises all financial There are no enforcement actions in Peru that
institutions, insurance companies and pen- have helped market participants better under-
sion funds administrators in Peru; stand the “regulatory perimeter” of permitted
• the Financial Intelligence Unit of Peru (UIF- and prohibited activity using blockchain.
Peru) is in charge of managing information for
the detection of money laundering (ML) and/ However, the SMV has issued a public statement
or the financing of terrorism (FT); that cryptocurrencies are not regulated and do
• the National Institute for the Defence of Com- not fall under its scope of supervision, and warn-
petition and Protection of Intellectual Property ing of the associated risks of fraud, scams, mon-
(INDECOPI) is the consumer, competition and ey laundering and financing of terrorism.
intellectual property agency; and
• the Ministry of Justice and Human Rights is Within the discussion of Bill No 1042/2021-
in charge of enforcing the data protection CR, intending to regulate exchanges of crypto-
regulations. assets, the BCRP highlighted that cryptocur-
rencies are not legal tender and emphasised
2.4 Self-regulatory Organisations that they facilitate tax evasion and are related to
As far as is known, there are no self-regulatory other illegal activities.
organisations performing regulatory or quasi-
regulatory roles in Peru. However, various com- Likewise, the SBS has stated that cryptocur-
munities and associations have mushroomed in rencies are not within their scope of supervision
the Peruvian blockchain ecosystem. The Block- and control, and expressed the importance of
chain & DLT Peru Association and the Fintech developing a legal framework for digital assets.
Association are two respected associations
with a focus on fintech, blockchain and crypto- 2.7 Regulatory Sandbox
economics, gathering the most relevant local A regulatory sandbox was recently approved
professionals and stakeholders from the pri- by the SBS, through Resolution No 2429-2021,
vate sector. Both associations can participate which allows only eligible regulated entities to
actively in public consultation processes related implement innovative models, which can include
to proposed legislation and public policies. blockchain-based projects.
Other communities have also emerged, such as This sandbox contemplates two regimes:
Lima Cripto, Polkadot, Kusama Peru, Crypto-
Block Perú, Crypto-Nights, El Club del Bitcoin • a flexibility regime, intended for innovative
and Ethereum Lima, and are generating aware- models based on activities under the existing
ness on blockchain and crypto-economics legal framework that require the temporary
through meet-ups, conferences and webinars. flexibility of some regulatory requirements;
and
5
LAW AND PRACTICE PERU
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
6
PERU LAW AND PRACTICE
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
have a compliance officer and inform UIF-Peru cies or tokens that are not backed by a financial
about any suspicious client transactions. authority or government entity, such offerings do
not fall within the legal supervision of the SMV.
4.4 Regulation of Markets
In Peru, it is not possible to issue any mas- However, according to Peruvian regulations,
sive financial asset (physical or digital) without this type of activity may fall under the regu-
authorisation from the SMV. However, Peru has latory scope of the SMV or the SBS in cases
not issued any specific regulation for block- where, independent of the mechanism used (in
chain-based digital assets. this case tokens), the transaction qualifies as a
“public offer” of securitiesor an activity author-
As far as is known, there have been no enforce- ised exclusively for financial entities.
ment actions towards digital assets, but in Octo-
ber 2021 SMV made a general public statement 5.2 Initial Exchange Offerings
on the use of cryptocurrencies, warning that they In Peru, there is no specific regulation applicable
involve some risks for consumers. to fundraising through initial exchange offerings
(IEOs).
4.5 Re-hypothecation of Assets
In Peru, there are no specific regulatory limits However, if the token offered in an IEO has the
on the ability of a digital asset exchange to re- qualities of a security according to the Peruvian
hypothecate (on-transfer) the digital assets they Securities Market Act (Legislative Decree No
hold for customers to third parties. 861), this legal framework will apply.
7
LAW AND PRACTICE PERU
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
8
PERU LAW AND PRACTICE
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
9
LAW AND PRACTICE PERU
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
The governance processes of local DAOs are On the other hand, fitting DAOs into exist-
often on-chain and reflected through smart con- ing legal structures could limit their innovative
tracts. The main challenges faced by local DAOs organisational proposal, as the current Peruvian
have been educating their users and encourag- legal framework only contemplates traditional
ing their involvement in the governance process and hierarchical organisational schemes.
through aligning the DAO’s organisational objec-
tives with its users’ interests in order to ensure
their participation.
10
PERU LAW AND PRACTICE
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
Niubox is a pioneering firm providing legal ad- legal and regulatory needs of the technology in-
vice to technology and digital businesses, stra- dustry, including digital platforms, e-commerce,
tegic advice in public and regulatory affairs and sharing economy, fintech and crypto ecosys-
legal innovation consultancy, with operations in tems, as well as providing legal and regulatory
Peru and Ecuador. It adopts a purpose-driven advice to clients in different industries on their
mindset that challenges the traditional organisa- digital transformation projects. The firm’s clients
tional structure and the delivery of legal services range from multinational Fortune 500 technolo-
through a people-centric approach. Niubox has gy companies to emerging start-ups developing
developed strong expertise in addressing all the cutting-edge technologies.
AUTHORS
11
LAW AND PRACTICE PERU
Contributed by: Oscar Montezuma Panez, Fiorella Colonna Murgueytio, Anita De la Piedra Yepez
and Angela Valdivia Romero, Niubox
Niubox
Avenida José Larco 1232
Piso 12
Miraflores 15074
Lima
Peru
12
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