UNIFORM SUPPLEMENTAL COMMERCIAL LAW FOR THE UNIFORM REGULATION OF VIRTUAL- CURRENCY BUSINESSES ACT Drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-TWENTY-SEVENTH YEAR LOUISVILLE, KENTUCKY JULY 20 - JULY 26, 2018 WITH PREFATORY NOTE AND COMMENTS COPYRIGHT © 2018 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS October 2, 2018 ABOUT ULC The Uniform Law Commission (ULC), also known as National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 127th year, provides states with non-partisan, well- conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. ULC members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical. • ULC strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states. • ULC statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government. • ULC keeps state law up-to-date by addressing important and timely legal issues. • ULC’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states. • ULC’s work facilitates economic development and provides a legal platform for foreign entities to deal with U.S. citizens and businesses. • Uniform Law Commissioners donate thousands of hours of their time and legal and drafting expertise every year as a public service, and receive no salary or compensation for their work. • ULC’s deliberative and uniquely open drafting process draws on the expertise of commissioners, but also utilizes input from legal experts, and advisors and observers representing the views of other legal organizations or interests that will be subject to the proposed laws. • ULC is a state-supported organization that represents true value for the states, providing services that most states could not otherwise afford or duplicate. DRAFTING COMMITTEE ON UNIFORM SUPPLEMENTAL COMMERCIAL LAW FOR THE UNIFORM REGULATION OF VIRTUAL- CURRENCY BUSINESSES ACT The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this Act consists of the following individuals: FRED MILLER, 80 S. 8th St., 2000 IDS Center, Minneapolis, MN 55402-2274, Chair BORIS AUERBACH, 5715 E. 56th St., Indianapolis, IN 46226 CARL S. BJERRE, University of Oregon School of Law, 1515 Agate St., Eugene, OR 97403- 1221 THOMAS S. HEMMENDINGER, 362 Broadway, Providence, RI 02909-1434 H. KATHLEEN PATCHEL, 5715 E. 56th St., Indianapolis, IN 46226 KEITH A. ROWLEY, University of Nevada Las Vegas, William S. Boyd School of Law, 4505 S. Maryland Pkwy., Box 451003, Las Vegas, NV 89154-1003 EDWIN E. SMITH, 1 Federal St., Boston, MA 02110-1726 SUZANNE B. WALSH, 185 Asylum St., Hartford, CT 06103-3469 SARAH JANE HUGHES, Indiana University Bloomington, Maurer School of Law, Baier Hall, 211 S. Indiana Ave., Bloomington, IN 47405, Reporter EX OFFICIO ANITA RAMASASTRY, University of Washington School of Law William H. Gates Hall, Box 353020, Seattle, WA 98195-3020, President JOHN T. MCGARVEY, 401 S. 4th St., Suite 1200, Louisville, KY 40202, Division Chair AMERICAN BAR ASSOCIATION ADVISORS JAMES T. O’REILLY, University of Cincinnati, 24 Jewett Drive, Cincinnati, Ohio 45215, ABA Advisor SANDRA M. ROCKS, One Liberty Plaza, New York, NY 10006-1470, ABA Business Law Section Advisor AMERICAN LAW INSTITUTE ADVISOR STEVEN O. WEISE, 2049 Century Park E., Suite 3200, Los Angeles, CA 90067-3206, ALI Advisor EXECUTIVE DIRECTOR LIZA KARSAI, 111 N. Wabash Ave., Suite 1010, Chicago, IL 60602, Executive Director Copies of this Act may be obtained from: NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 111 N. Wabash Ave., Suite 1010 Chicago, IL 60602 312/450-6600 www.uniformlaws.org UNIFORM SUPPLEMENTAL COMMERCIAL LAW FOR THE UNIFORM REGULATION OF VIRTUAL-CURRENCY BUSINESSES ACT TABLE OF CONTENTS Prefatory Note ................................................................................................................................. 1 SECTION 1. SHORT TITLE. ....................................................................................................... 3 SECTION 2. DEFINITIONS. ........................................................................................................ 3 SECTION 3. SCOPE. .................................................................................................................... 5 SECTION 4. INCORPORATION OF ARTICLE 8. ..................................................................... 5 SECTION 5. QUALIFYING OFFICE UNDER HAGUE SECURITIES CONVENTION........ 17 SECTION 6. EFFECT OF FAILURE TO COMPLY WITH [ACT]. ......................................... 18 SECTION 7. NO INFERENCE AS TO CHARACTERIZATION UNDER OTHER STATUTE OR RULE.......................................................................................................................... 18 SECTION 8. SUPPLEMENTARY LAW. .................................................................................. 19 SECTION 9. UNIFORMITY OF APPLICATION AND CONSTRUCTION. ........................... 19 SECTION 10. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. .................................................................................... 19 [SECTION 11. SEVERABILITY CLAUSE.] ............................................................................. 19 SECTION 12. REPEALS; CONFORMING AMENDMENTS. ................................................. 20 SECTION 13. EFFECTIVE DATE. ............................................................................................. 20 UNIFORM SUPPLEMENTAL COMMERCIAL LAW FOR THE UNIFORM REGULATION OF VIRTUAL-CURRENCY BUSINESSES ACT Prefatory Note The Uniform Regulation of Virtual-Currency Businesses Act (URVCBA), to which this Act is a supplement, establishes a regulatory structure for businesses engaging in or offering to residents of enacting states certain virtual-currency transfer, exchange, or custodial services. The URVCBA provides certainty and protections that will enable such businesses to operate to everyone’s benefit. It includes provisions to enable start-up companies offering virtual-currency services room to test products and operate prior to full licensure without violating state “money transmitter” or “money services” laws or risking federal prosecution for being unlicensed under 18 U.S.C. Section 1960. As a regulatory act, the URVCBA provides a number of user protections. The user protections in Section 502 of the URVCBA are based on commercial law principles, but the main focus of that section is user protection, rather than commercial law rules for covered transactions. When the Uniform Law Commission approved the URVCBA in 2017, it contemplated this supplemental commercial law act as a companion to the URVCBA. This act serves two purposes: it protects users; and provides the virtual-currency system with commercial law rules that both protect users and promote certainty and finality in transactions. It provides rights to customers of virtual-currency businesses that are comparable to the rights enjoyed by customers of securities intermediaries under Part 5 of Article 8 of the Uniform Commercial Code. Adoption of this act in connection with the enactment of the URVCBA is strongly recommended to give users of virtual-currency businesses, and the businesses themselves, comparable certainty about their dealings with each other and with certain third parties. This act assumes that the state considering this act has enacted the URVCBA or will enact both acts substantially concurrently. This act has further specific goals. First, it better enables owners of virtual-currency assets to offer their virtual currency as collateral under Article 9 of the Uniform Commercial Code. Secured parties obtaining virtual currency as collateral will be able to proceed in a manner comparable to traditional securities held in “securities accounts” subject to UCC Article 8. A second goal is to enhance the “negotiability” of virtual currency when transferred or exchanged. A third goal is to harmonize the laws governing custody of virtual currencies subject to this act or its equivalent and the URVCBA with the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary. This Convention became effective as a matter of U.S. law on April 1, 2017, and the issues surrounding it are described more fully in the Official Comments to this act. 1 As a matter of user protection, this act is designed to replace Section 502 of the URVCBA, in jurisdictions that enact both the URVCBA and this act. Section 502 as approved by the Uniform Law Commissioners in July 2017 provides: SECTION 502. PROPERTY INTERESTS AND ENTITLEMENTS TO VIRTUAL CURRENCY. (a) A licensee or registrant that has control of virtual currency for one or more persons shall maintain in its control an amount of each type of virtual currency sufficient