This book offers a comparative perspective on 18 countries’ legal regulation of crowdfunding. In the wake of the financial crises of 2008, use of this alternative financing method has increased substantially, in various forms. Whereas some states have adopted tailor-made regimes in order to regulate but also encourage this way of financing projects, allowing loans to be made by non-banking institutions, others still haven’t specifically addressed the subject. An analysis of these diverse legislative stances offers readers a range of legal solutions for managing crowdfunding activities with regard to e.g. protecting investors, imposing limits on project owners, and finally the role and duties of intermediaries, i.e., companies operating crowdfunding platforms. In addition, the content presented here provides a legal basis for states and supranational organizations interested in regulating this phenomenon to achieve more legal certainty.
Author(s): Caroline Kleiner
Series: Ius Comparatum - Global Studies in Comparative Law, 55
Publisher: Springer
Year: 2021
Language: English
Pages: 577
City: Cham
Contents
Part I: General Report / Rapport général
Rapport Général sur la régulation juridique du crowdfunding
1 Introduction
2 Le crowdfunding : un concept multiple
2.1 Le financement participatif sous forme de don (donation crowdfunding - crowdsponsoring -crowdonating)
2.1.1 Qualification du rapport entre le contributeur et le porteur de projet
2.1.2 Qualification du rapport entre le porteur de projet et l´entreprise de financement participatif (la plateforme)
2.1.3 Qualification du rapport entre le contributeur et l´entreprise de financement participatif
2.1.4 Des dons à vocation particulière
2.2 Le financement participatif avec contrepartie (reward crowdfunding - pre-sale crowdfunding - crowdsupporting)
2.3 Le financement participatif sous forme de prêt (crowdlending)
2.3.1 Les hypothèses de « prêt direct »
2.3.2 Les hypothèses de prêt indirect
2.4 Le financement participatif sous forme d´investissement en capital (crowdinvesting - equity crowdfunding)
2.4.1 L´offre d´instruments financiers
2.4.2 L´encadrement des rapports de droit entre les plateformes, les porteurs de projet et les investisseurs
3 Le statut des entreprises de financement par la foule
3.1 Un accès réglementé au statut d´entreprise de financement par la foule ?
3.1.1 Dans le cas du financement par la foule non-financier
3.1.2 Dans le cas du crowdlending
3.1.3 Dans le cas du crowdinvesting
3.2 La supervision de l´activité de financement par la foule
4 La protection de la foule
4.1 La protection des donateurs (crowddonating)
4.2 La protection des contributeurs dans le cadre du reward crowdfunding ou pre-sale crowdfunding
4.3 La protection des prêteurs
4.4 La protection des investisseurs
4.4.1 Via la législation sur la protection des investisseurs
4.4.2 Via une législation spécifique
5 L´activité transfrontière du financement par la foule
5.1 Champ d´application des textes relatifs au financement par la foule
5.1.1 Critère de rattachement
5.1.2 Limitation monétaire
5.2 Loi applicable aux relations contractuelles
5.3 Les litiges transfrontières impliquant une activité de financement par la foule
5.3.1 Compétence judiciaire internationale
5.3.2 Arbitrage international
Références
Rapports d´institutions
General Report: The Legal Regulation of Crowdfunding
1 Introduction
2 Crowdfunding: A Multiple Concept
2.1 Donation Crowdfunding or Crowddonating
2.1.1 Qualification of the Relationship Between the Contributor and the Project Leader
2.1.2 Qualification of the Relationship Between the Project Holder and the Crowdfunding Company (the Platform)
2.1.3 Qualification of the Relationship Between the Contributor and the Participatory Finance Enterprise
2.1.4 Gifts with a Special Vocation
2.2 Reward Based Crowdfunding or Crowd-Supporting
2.3 Crowdlending
2.3.1 ``Direct Lending´´
2.3.2 Indirect Lending
2.4 Crowdinvesting or Equity Crowdfunding
2.4.1 The Supply of Financial Instruments
2.4.2 The Legal Relationship Between the Platforms, the Project Leaders and the Investors
3 The Status of Crowdfunding Companies
3.1 A Regulated Access to Exercise As Crowdfunding Company?
3.1.1 In the Case of Non-financial Crowdfunding
3.1.2 In the Case of Crowdlending
3.1.3 In the Case of Crowdinvesting
3.2 Supervision of Crowdfunding Activity
4 Protection of the Crowd
4.1 Protection of Donors
4.2 Protection of Contributors in the Context of Reward Crowdfunding or Pre-sale Crowdfunding
4.3 Protection of Lenders
4.4 Investor Protection
4.4.1 Through Investor Protection Legislation
4.4.2 Through Specific Legislation
5 Cross-Border Crowdfunding Activity
5.1 Scope of Application of Crowdfunding Legislation
5.1.1 Connecting Factor
5.1.2 Currency Limitation
5.2 Law Applicable to Contractual Relations
5.3 Cross-Border Disputes Involving Crowdfunding Activity
5.3.1 International Jurisdiction
5.3.2 International Arbitration
References
Institutional Reports
Part II: National Reports / Rapports nationaux
Regulation of Crowdfunding in Germany
1 Introduction
1.1 Policy Objectives
1.2 Economic Relevance of Crowdfunding in Germany
1.2.1 Crowdlending/Peer to Peer (P2P) Lending
1.2.2 Crowdinvesting
2 Definition and Legal Qualification of Crowdfunding
2.1 Definition
2.2 Different Types of Crowdfunding
2.3 Legal Qualifications
2.3.1 Crowdsponsoring
2.3.2 Reward-based Crowdfunding
2.3.3 Crowdlending/P2P Lending
2.3.4 Crowdinvesting
2.4 Legislative Intervention
2.5 The Possible Forms of Financial Contributions
3 Normative Framework
3.1 Applicable Law
3.2 Choice of Law
4 Supervision of Crowdfunding Activity
4.1 Prudential Regulation
4.1.1 Crowdlending/P2P Lending
4.1.2 Crowdinvesting
4.1.3 Licensing Regime
4.2 Application of Securities Law to Platforms
4.3 Banking Monopoly
4.4 Prudential Supervision
4.5 Criminal Provisions
5 Obligations of Parties
5.1 Duty to Inform
5.1.1 Crowdlending
5.1.2 Crowdinvesting
5.2 Other Obligation
5.2.1 Obligation to Guarantee Accomplishment of the Project
5.2.2 Obligation of Payment of the Collected Funds
5.3 Duties of the Parties
5.3.1 Duties of the Project Directors
5.3.2 Duties of a Lender
5.3.3 Duties of a Donator
5.3.4 Duties of a Buyer
5.3.5 Duties of a Contributor Buying Equity in a Company
5.4 Redress Mechanism and Fraudulent Behaviour
6 Crowdfunding Platforms Activity in Germany
7 Tax Measures
8 Litigation
References
Le Financement Alternatif en Droit Belge
1 Introduction
2 Définition
2.1 Définition Générique
2.2 Qualifications Juridiques
3 Cadre Normatif
3.1 Loi du 18 décembre 2016 organisant la Reconnaissance et l´Encadrement du Crowdfunding
3.2 Définition de la Notion de Plateforme de Financement Alternatif
3.3 Champ d´Application Territorial
3.3.1 La Plateforme doit être `Fixée´ en Belgique
3.3.2 Si la Plateforme n´est pas `Fixée´ en Belgique
4 Supervision des Activités de Financement Alternatif
4.1 Règles d´Accès au Marché pour les Plateformes de Crowdfunding
4.2 Contrôle des Activités
5 Obligations des Parties
5.1 Prérogatives de la Plateforme à l´égard de ses Utilisateurs
5.2 Prérogatives des Promoteurs des Projets
5.3 Droits et Prérogatives des Contributeurs
6 Mesures Fiscales
6.1 Modèle de l´Investissement en Capital - Equity Crowdfunding :
6.2 Tax shelter (IPP) pour Entreprises Débutantes
6.2.1 Plateformes de Crowdfunding Eligibles
6.2.2 Une Entreprise (PME) qui Débute
6.2.3 Actions ou Parts Nouvelles et Instruments de Placement
6.2.4 Montants Maximum Bénéficiant du Tax Shelter
6.2.5 Réduction d´Impôt
6.2.6 Moment de l´Obtention et Maintien de la Réduction d´Impôt
6.3 Modèle du Prêt - Crowdlending
6.3.1 Exonération des Intérêts de Prêts consentis à des Entreprises qui débutent
6.3.2 Prêteurs et Emprunteurs Eligibles
6.3.3 Caractéristiques du Prêt Eligible
7 Perspectives Conclusives
Références
Crowdfunding in Brazilian Law
1 Introduction
2 The Juridical Nature of Contracts Drawn Up in the Scope of Crowdfunding
2.1 The Donation-Based Crowdfunding
2.2 Reward-Based Crowdfunding
2.3 Pre-selling Model of Crowdfunding
2.4 Crowdlending
2.5 Crowdinvesting
3 Supervision of the Crowdfunding Activity
4 Obligations of the Parties
4.1 Duties of the Platform (as Intermediary) vis-à-vis Users of the Platform
4.2 Duties of the Project Directors
4.3 Duties of the Contributor
5 Rights of Contributors
6 The Activity of Crowdfunding Platforms in Brazil
7 Tax Measures
8 Litigation in Relation to the Crowdfunding Activity
9 Final Remarks
References
L´encadrement juridique du financement participatif au Canada
1 Introduction
1.1 Sources du droit canadien
1.2 Données canadiennes sur le financement participatif
2 Definition et qualification du financement participatif
2.1 Définition
2.2 Distinctions
2.3 Qualification juridique de l´appel aux dons - Droit québécois
2.4 Qualification juridique de l´appel aux dons - Common law
2.5 Qualification juridique s´il y a prévente
2.6 Qualification juridique du financement participatif en capital
2.7 Qualification juridique du financement par prêt
3 Cadre normatif
3.1 Financement participatif sous forme de dons ou de préventes : régimes d´application générale
3.2 Financement participatif pour autrui : Loi uniforme sur les appels informels aux dons du public
3.3 Financement participatif sous forme de prêt
3.4 Financement participatif en capital
3.5 Application extraterritoriale
4 Surveillance de l´activité de financement participatif
4.1 Agrément et surveillance des plateformes de financement en capital ou par prêt
4.2 Recyclage des produits de la criminalité
5 Obligations des parties
6 Activités des plateformes de financement participatif
7 Mesures fiscales
8 Contentieux lié à l´activité de financement participatif
8.1 Contentieux administratif visant les plateformes de financement en capital ou par prêt
8.2 Contentieux civil
8.3 Action collective
9 Conclusion
Références
Ask and you Shall Receive: Crowdfunding in Cyprus
1 Introductory Remarks
2 Definition: The Legal Qualification of Crowdfunding
2.1 How Is Crowdfunding Defined in Your Legal Order?
2.2 Does the Definition Include the Following Features?
2.3 Please Specify the Legal Qualifications Used in Your Legal Order for the Different Kinds of Funding Aforementioned. In Par...
2.4 What Is the Legal Qualification of Crowdfunding Activity that Is Assimilated to Call for Donations?
2.5 What Is the Legal Qualification of Crowdfunding Activity that Is Assimilated to Call for Anticipated Purchase of Goods and...
2.6 What Is the Legal Qualification of Crowdfunding Activity that Is Assimilated to Call for Equity Participation in a Commerc...
2.7 What Is the Legal Qualification of Crowdfunding Activity that Is Assimilated to Call for Funding in Exchange for Royalties?
2.8 Has the Legislator Dealt with those Questions? Is the Chosen Legal Qualification Approved by the Legal Doctrine? By yourse...
2.9 What Kind of Financial Contributions Are Possible? May the Contribution Consist of Something Other than Cash?
3 Normative Framework
3.1 Does a Law Specific to Crowdfunding Exist? If a Specific Law Does Not Exist, What Are the Laws Applicable to the Activity ...
3.2 If a Specific Body of Rules Exists, Does it Apply to any Type of Crowdfunding (Donation, Loan, Purchase of Goods and Servi...
3.3 If a Law Specific to Crowdfunding Exists, What Is Its Territorial Scope of Application? What Are the Situations Targeted b...
3.4 Are the Contracts Concluded by Means of the Platform Automatically Governed by the Law Applicable to the Crowdfunding Acti...
4 Supervision of the Crowdfunding Activity
4.1 Access to the Crowdfunding Business
4.1.1 Do the Platforms Have to Obtain an Authorisation or a Licence Delivered by an Authority Prior to the Exercise of Their A...
4.1.2 Are the Platforms: As Intermediaries-Subject to the Financial Intermediaries´ Law Existing in Your Legal Order?
4.1.3 Is the Activity of Crowdfunding Perceived as a Banking Operation? Does It Go against a Banking Monopoly Principle?
4.2 Control of the Activity
4.2.1 Has Crowdfunding Supervision Been Implemented in Your Legal Order? If Yes, Has a Supervision Authority Specific to this ...
4.2.2 Do Specific Criminal Law Provisions Exist in Relation to Crowdfunding? Do National Measures Against Money Laundering and...
5 Parties´ Obligations
5.1 Duties of the Platform (as Intermediary) Towards the Platform´s Users
5.1.1 Does a Specific Duty to Inform Exist? Is This Duty Identical to the Credit Institutions´ or Financial Intermediaries´ Du...
5.1.2 Is There an Obligation to Guarantee Accomplishment of the Project? Is There an Obligation to Guarantee Follow-Up of the ...
5.1.3 Is There an Obligation of Payment of the Collected Funds?
5.1.4 Are the Platforms Subject to any Other Duties Which Are Not Mentioned Above?
5.2 Duties of the Project Directors: In Your Legal Order, What Are the Duties of the Project Directors Towards the Platform an...
5.3 Duties of the Contributor
5.3.1 Do Specific Provisions Protecting the Reality and Integrity of the Contributor´s Consent Exist?
5.3.2 What Are the Duties of a Lender (Contributor by Means of a Loan)?
5.3.3 Is the Loan Subject to the Law on Usury (if Relevant)? Are There any Rules About the Interest Rate Determination? Are Th...
5.3.4 What Are the Duties of a Donator (Contributor by the Means of Donation)?
5.3.5 Is the Donation Subject to Specific Formal Validity Rules? Is There a Maximum Amount per Project for the Donation Made b...
5.3.6 Do Money Laundering Provisions Apply to this Activity?
5.3.7 What Are the Duties of a Buyer (Contributor by the Means of Anticipated Purchase of Goods or Services)?
5.3.8 Is the Buyer Limited by a Maximum Amount of the Purchase? Are There any Formal Validity Conditions?
5.3.9 What Are the Duties of a Contributor Buying Equity in a Company?
5.3.10 Is There a Maximum Amount for an Equity Contribution? What Is the Legal Nature of the Counterpart? (Shares? Corporate B...
5.4 Rights of Contributors
5.4.1 In Case of Non-accomplishment of the Project, Is There Any Redress Mechanism Against the Project Director or Against the...
5.4.2 Have Specific Mechanisms Been Implemented Against Fraudulent Behaviour?
6 Crowdfunding Platforms´ Activity in Cyprus
6.1 What Is the Currency Used by the Platforms for Their Activities on the Territory of Your Legal Order? Is It Possible to Us...
6.2 To the Extent that the Platform Allows Cross-Border Activity, What Is the Percentage of the Collected Funds Intended to Be...
6.3 Are the Terms of Use of Crowdfunding Platforms Easily Accessible?
6.4 Do the Terms of Use Contain Choice of Forum Clauses? Choice-of-Law Clauses? Arbitration Clauses?
6.5 In Your Country, Does a Crowdfunding Platforms´ Professional Association Exist? If Yes, Could you Indicate Its Website and...
6.6 Have the Crowdfunding Platforms Established a Professional Code of Ethics?
7 Tax Measures
7.1 How Are the Contributions Taxed in Your Country?
7.2 Do the Contributors Benefit from a Tax Exemption in Relation to Their Contribution?
8 Litigation in Relation to the Crowdfunding Activity
8.1 Are There Closed or Still Ongoing Proceedings in Relation to Crowdfunding?
8.2 Are You Aware of any Arbitration Proceeding in Relation to the Crowdfunding Activity?
8.3 Do Specific Actions (Class Actions?) Exist for Disputes in Relation to Crowdfunding Activity?
9 Miscellaneous
9.1 If There Are any Points you Would Like to Develop Which Were Not Dealt with by this Questionnaire, Please Feel Free to Add...
9.2 Main Legal Provisions Relating to the Legal Regulation of Crowdfunding in Cyprus
References
Crowdfunding in Spain
1 Definition: Legal Qualification of Crowdfunding
1.1 Legal Definition
1.2 Scope of definition
1.3 Specific Legal Qualifications
1.4 Assessment
1.5 Possible Financial Contributions
2 Normative Framework
3 Supervision of the Crowdfunding Activity
3.1 Access to the Crowdfunding Business
3.1.1 Do the Platforms have to Obtain an Authorisation or a Licence Delivered by an Authority Prior to the Exercise of Their A...
3.1.2 If Yes, What Are the Conditions to Obtain Such an Authorisation/Licence?
3.1.3 Under What Conditions Can Such an Authorisation/Licence be Removed?
3.1.4 What Is the Competent Authority to Deliver Such Authorisation/Licence?
3.1.5 Are the Platforms: As Intermediaries-Subject to the Financial Intermediaries´ Law Existing in Your Legal Order?
3.1.6 Is the Activity of Crowdfunding Perceived as a Banking Operation? Does It Go Against a Banking Monopoly Principle?
3.2 Control of the Activity
3.2.1 Has Crowdfunding Supervision Been Implemented in Your Legal Order? If Yes, Has a Supervision Authority Specific to This ...
3.2.2 Do Specific Criminal Law Provisions Exist in Relation to Crowdfunding?
3.2.3 Do National Measures Against Money Laundering and Terrorism Financing (If They Exist) Apply to Crowdfunding?
4 Parties´ Obligations
4.1 Duties of the Platform (as Intermediary) Towards the Platform´s Users
4.1.1 Does a Specific Duty to Inform Exist? Is this Duty Identical to the Credit Institutions´ or Financial Intermediaries´ Du...
4.1.2 Is There an Obligation to Guarantee Accomplishment of the Project? Is There an Obligation to Guarantee Follow-up of the ...
4.1.3 Is There an Obligation of Payment of the Collected Funds?
4.1.4 Are the Platforms Subject to Any Other Duties Which Are Not Mentioned Above?
4.2 Duties of the Project Directors
4.3 Duties of the Contributor
4.3.1 Do Specific Provisions Protecting the Reality and Integrity of the Contributor´s Consent exist?
4.3.2 What Are the Duties of a Lender (Contributor by Means of a Loan)?
4.3.3 Is the Loan Subject to the Law on Usury (If Relevant)?
4.3.4 Are There Any Rules About the Interest Rate Determination?
4.3.5 Are There Any Rules About the Length of the Loan?
4.3.6 What Are the Duties of a Donator (Contributor by the Means of Donation)?
4.3.7 Is the Donation Subject to Specific Formal Validity Rules? Is There a Maximum Amount per Project for the Donation Made b...
4.3.8 Do Money Laundering Provisions Apply to This Activity?
4.3.9 What Are the Duties of a Buyer (Contributor by the Means of Anticipated Purchase of Goods or Services)?
4.3.10 Is the Buyer Limited by a Maximum Amount of the Purchase? Are There Any Formal Validity Conditions?
4.3.11 What Are the Duties of a Contributor Buying Equity in a Company?
4.3.12 Is There a Maximum Amount for an Equity Contribution? What Is the Legal Nature of the Counterpart? (Shares? Corporate B...
4.4 Rights of Contributors
4.4.1 In Case of Non-Accomplishment of the Project, Is There Any Redress Mechanism Against the Project Director or Against the...
4.4.2 Have Specific Mechanisms Been Implemented Against Fraudulent Behaviour?
5 Crowdfunding Platforms´ Activity in Spain
5.1 What Is the Currency Used by the Platforms for Their Activities on the Territory of Your Legal Order? Is It Possible to Us...
5.2 To the Extent That the Platform Allows Cross-Border Activity, What Is the Percentage of the Collected Funds Intended to be...
5.3 Are the Terms of Use of Crowdfunding Platforms Easily Accessible?
5.4 Do the Terms of Use Contain Choice of Forum Clauses? Choice-of-Law Clauses? Arbitration Clauses?
5.5 Choice of Law Clauses:
5.6 Arbitration Clauses:
5.7 In Your Country, Does a Crowdfunding Platforms´ Professional Association Exist? If Yes, Could You Indicate Its Website and...
5.8 Have the Crowdfunding Platforms Established a Professional Code of Ethics?
6 Tax Measures
7 Litigation in Relation to the Crowdfunding Activity: Are There Closed or Still Ongoing Proceedings in Relation to Crowdfundi...
References
Legal Regulation of Crowdfunding in Estonia
1 Introduction
2 Market Overview
2.1 Financing Patterns and Crowdfunding Platforms in Estonia
2.2 Activities of Crowdfunding Platforms
3 Legislation and Supervision
3.1 General Regulatory Approach Towards Crowdfunding Activities
3.2 Estonian Financial Sector Regulation
3.2.1 Investment Services
3.2.2 Prospectus Regulation
3.2.3 Consumer Credit
3.3 Self-Regulatory Approach by the Industry
3.4 Supervision
3.5 Litigation and Supervisory Action
4 Contractual Relationships
4.1 Legal Qualification of Relationships
4.1.1 Funding Agreements
4.1.2 Service Agreements
4.2 Key Rights and Obligations
4.2.1 Duty of Care
4.2.2 Information Disclosure
4.2.3 Handling Conflicts of Interests
5 Summary
References
The Legal Regulation of U.S. Crowdfunding: An Organically Evolving Patchwork
1 Introduction
2 A U.S. Legal Regulatory Taxonomy of Crowdfunding
2.1 Donative Crowdfunding
2.2 Consumption Interest Crowdfunding
2.3 Consumer Lending Crowdfunding
2.4 Securities (Investment) Crowdfunding
3 The Legal Regulatory Framework for Crowdfunding in the United States
3.1 Donative Crowdfunding
3.2 Consumption Interest Crowdfunding
3.3 Consumer Lending Crowdfunding
3.4 Securities (Investment) Crowdfunding
4 Additional Legal Regulatory Risks and Considerations in U.S. Crowdfunding
5 Conclusion
References
Crowdfunding Act Accelerating the Growth of the Crowdfunding Market in Finland
1 Background
2 Drafting of the Crowdfunding Act
3 The Goal of the Crowdfunding Act
4 Scope of the Crowdfunding Act
5 Crowdfunding Intermediaries to the Register
6 Investor Protection Is Improved
7 Crowdfunding Act Is Relevant Also for Existing Market Operators
8 The Size of the Market Is Growing Rapidly
Le Crowdfunding, ou l´Adaptation du Droit au Service des Investissements en France
1 Introduction
2 Le Crowdlending, Alternative aux Prêts Bancaires
2.1 Les Opérations
2.2 Les Acteurs
3 Le Crowdinvesting, Alternative aux Souscripteurs Traditionnels de Titres Financiers
3.1 Les Opérations
3.2 Les Acteurs
4 Conclusion : vers des Règles complémentaires afin d´affiner le Régime de Finance Participative ?
Références
Legal Regulation of Crowdfunding in Greece
1 Introduction
2 The New Regime for Investment Crowdfunding in Greece
3 Supervision of the Crowdfunding Activity
3.1 Organizational Requirements
3.2 Conduct of Business Rules
3.3 Duties of the Platform Operators/Project Directors
4 Extraterritorial Application of the National Application
5 Rights and Duties of the Investors
6 Conclusion
References
The Legal Regulation of Crowdfunding in Ireland
1 Definition: Legal Qualification of Crowdfunding
1.1 Definition
1.2 Forms of Crowdfunding
1.3 Legal Qualifications
1.4 Possible Contributions
2 Normative Framework
3 Supervision of the Crowdfunding Activity
3.1 Access to the Crowdfunding Business
3.1.1 Absence of Authorisation or Licence
3.1.2 Legal Regime of Crowdfunding Platforms
3.2 Control of the Activity
4 Parties´ Obligations
4.1 Duties of the Platform (As Intermediary) Towards the Platform´s Users
4.1.1 Non Existence of a Specific Duty to Inform
4.2 Duties of the Project Directors
4.3 Duties of the Contributor
4.4 Rights of Contributors
4.4.1 In Case of Non-accomplishment of the Project, Is There Any Redress Mechanism Against the Project Director or Against the...
4.4.2 Have Specific Mechanisms Been Implemented Against Fraudulent Behaviour?
5 Crowdfunding Platforms´ Activity in Ireland
6 Litigation in Relation to Crowdfunding Activity
7 Miscellaneous
References
Further Reading
The Legal Regulation of Crowdfunding in Japan
1 Introduction
2 Investment-based Crowdfunding
2.1 Overview
2.2 Distinction Between Equity-type and Fund-type Models: Legal Relationship Between the Business Operator and Investor
2.3 Distinction Between Equity-type and Fund-type Models: Difference in Treatment by Kin´yu-shohin torihiki-ho [Financial Inst...
2.4 Special Registration System for Platforms
2.5 Special Restrictions Imposed on Platform´s Activities
2.5.1 Investment-based Crowdfunding´s Status within FIEA´s Information Disclosure Regulation
2.5.2 Activities-Restrictions Imposed on Investment-based Crowdfunding Platforms
2.5.3 Self-Regulation Targeting Investment-based Crowdfunding
3 Debt Crowdfunding
3.1 Overview
3.2 Kashikin-gyo-ho [Money Lending Business Act, MLBA]
3.3 Kin´yu-shohin torihiki-ho [Financial Instruments and Exchange Act]
4 Donation-based Crowdfunding, Rewards-based Crowdfunding
References
Crowdfunding in the Netherlands
1 Introduction
2 Legal Definition and Qualification of Crowdfunding
3 Normative Framework
3.1 Extraterritorial Application of the National Legislation
4 Supervision of the Crowdfunding Activity
5 Parties´ Obligations
5.1 Duties of the Platform (As Intermediary) Towards the Platform´s Users
5.1.1 Does a Specific Duty to Inform Exist? Is This Duty Identical to the Credit Institutions´ or Financial Intermediaries´ Du...
5.1.2 Is There an Obligation to Guarantee Accomplishment of the Project? Is There an Obligation to Guarantee Follow-up of the ...
5.1.3 Is There an Obligation of Payment of the Collected Funds?
5.1.4 Are the Platforms Subject to Any Other Duties Which Are Not Mentioned Above?
5.1.5 Duties of the Project Directors: In Your Legal Order, What Are the Duties of the Project Directors Towards the Platform ...
5.2 Duties of the Contributor
5.2.1 Do Specific Provisions Protecting the Reality and Integrity of the Contributor´s Consent Exist?
5.2.2 What Are the Duties of a Lender (Contributor by Means of a Loan)?
5.2.3 Is the Loan Subject to the Law on Usury (If Relevant)? Are There Any Rules About the Interest Rate Determination? Are Th...
5.2.4 What Are the Duties of a Donator (Contributor by the Means of Donation)?
5.2.5 Is the Donation Subject to Specific Formal Validity Rules? Is There a Maximum Amount Per Project for the Donation Made b...
5.2.6 Do Money Laundering Provisions Apply to This Activity?
5.2.7 What Are the Duties of a Buyer (Contributor by the Means of Anticipated Purchase of Goods or Services)?
5.2.8 Is the Buyer Limited by a Maximum Amount of the Purchase? Are There Any Formal Validity Conditions?
5.2.9 What Are the Duties of a Contributor Buying Equity in a Company?
5.2.10 Is There a Maximum Amount for an Equity Contribution? What Is the Legal Nature of the Counterpart? (Shares? Corporate B...
5.3 Rights of Contributors
5.3.1 In Case of Non-accomplishment of the Project, Is There Any Redress Mechanism Against the Project Director or Against the...
5.3.2 Have Specific Mechanisms Been Implemented Against Fraudulent Behaviour?
5.4 Crowdfunding Platforms´ Activity in Your Country
5.4.1 What Is the Currency Used by the Platforms for Their Activities on the Territory of Your Legal Order? Is It Possible to ...
5.4.2 To the Extent That the Platform Allows Cross-Border Activity, What Is the Percentage of the Collected Funds Intended to ...
5.4.3 Are the Terms of Use of Crowdfunding Platforms Easily Accessible?
5.4.4 Do the Terms of Use Contain Choice of Forum Clauses? Choice-of-Law Clauses? Arbitration Clauses?
5.4.5 In Your Country, Does a Crowdfunding Platforms´ Professional Association Exist? If Yes, Could You Indicate Its Website a...
5.5 Tax Measures
5.5.1 How Are the Contributions Taxed in Your Country?
5.5.2 Do the Contributors Benefit from a Tax Exemption in Relation to Their Contribution?
5.5.3 Litigation in Relation to the Crowdfunding Activity
5.5.4 Was the Jurisdiction of the Court Challenged Because of a Cross-Border Dimension of the Case?
5.5.5 Are You Aware of Any Arbitration Proceeding in Relation to the Crowdfunding Activity?
5.5.6 Do Specific Actions (Class Actions?) Exist for Disputes in Relation to Crowdfunding Activity?
5.6 Miscellaneous: If There Are Any Points You Would Like to Develop Which Were Not Dealt with By This Questionnaire, Please F...
References
Crowdfunding in Poland
1 How Is Crowdfunding Defined in Your Legal Order?
2 Normative Framework
3 Supervision of the Crowdfunding Activity
3.1 Access to the Crowdfunding Business
3.1.1 Do the Platforms Have to Obtain an Authorisation or a Licence Delivered by an Authority Prior to the Exercise of Their A...
3.1.2 Are the Platforms-as Intermediaries-Subject to the Financial Intermediaries´ Law Existing in Your Legal Order?
3.1.3 Is the Activity of Crowdfunding Perceived as a Banking Operation? Does It Go Against a Banking Monopoly Principle?
3.2 Control of the Activity
3.2.1 Has Crowdfunding Supervision Been Implemented in Your Legal Order?
3.2.2 Do Specific Criminal Law Provisions Exist in Relation to Crowdfunding? Do National Measures Against Money Laundering and...
4 Parties´ Obligations
4.1 Duties of the Platform (as Intermediary) Towards the Platform´s Users
4.2 Duties of the Project Directors
4.3 Duties of the Contributor
4.3.1 Do Specific Provisions Protecting the Reality and Integrity of the Contributor´s Consent Exist?
4.3.2 What Are the Duties of a Lender?
4.3.3 What Are the Duties of a Donator (Contributor by the Means of Donation)?
4.3.4 Do Money Laundering Provisions Apply to This Activity?
4.3.5 What Are the Duties of a Buyer?
4.3.6 What Are the Duties of a Contributor Buying Equity in a Company?
4.4 Rights of Contributors
4.4.1 In Case of Non-accomplishment of the Project, Is There Any Redress Mechanism Against the Project Director or Against the...
4.4.2 Have Specific Mechanisms Been Implemented Against Fraudulent Behaviour?
5 Crowdfunding Platforms´ Activity in Poland
5.1 What Is the Currency Used by the Platforms for Their Activities on the Territory of Your Legal Order? Is It Possible to Us...
5.2 To the Extent That the Platform Allows Cross-Border Activity, What Is the Percentage of the Collected Funds Intended to Be...
5.3 Are the Terms of Use of Crowdfunding Platforms Easily Accessible?
5.4 Do the Terms of Use Contain Choice of Forum Clauses? Choice-of-Law Clauses? Arbitration Clauses?
5.5 In Your Country, Does a Crowdfunding Platforms´ Professional Association Exist?
5.6 Have the Crowdfunding Platforms Established a Professional Code of Ethics?
6 Tax Measures
6.1 How Are the Contributions Taxed in Your Country?
6.2 Do the Contributors Benefit from a Tax Exemption in Relation to Their Contribution?
7 Litigation in Relation to the Crowdfunding Activity
7.1 Are There Closed or Still Ongoing Proceedings in Relation to Crowdfunding?
7.2 Are You Aware of Any Arbitration Proceeding in Relation to the Crowdfunding Activity?
7.3 Do Specific Actions (Class Actions?) Exist for Disputes in Relation to Crowdfunding Activity?
References
Crowdfunding Regulation in Singapore
1 Crowdfunding Regulation in Force in Singapore
1.1 License Requirement for Moneylenders
1.2 License Requirement for Crowdfunding Platforms
1.3 Prospectus Requirements and Exceptions Thereto
1.4 No General Customer Knowledge Assessment
1.5 Investor Profile Assessment and Risk Disclosure
1.6 Restrictions on Advertising
2 Business Models of Platforms in Singapore
2.1 Assessment of Customers´ Suitability
2.2 Holding and Managing Investors´ Funds
2.3 Risks of Regulatory Gaps and Regulatory Arbitrage
3 Conclusions and Outlook
3.1 Non-securitized Lending
3.2 Securitized Lending and Equity Investments in Securities
3.3 Systemic Risk and Regulatory Arbitrage
References
Crowdfunding in Switzerland
1 Introduction
2 Terminology
3 Regulatory Regime
3.1 Preliminary Remarks
3.2 Contractual Obligations
3.3 Anti-Money Laundering and Anti-Terrorist Financing Regulations
3.4 Banking Regulations
3.4.1 Preliminary Remarks
3.4.2 The Legal Situation Until 31 July 2017
3.4.3 The Legal Situation as of 1 August 2017
3.4.4 Legal Situation as of January 2018
3.4.5 Legal Situation as of January 2019
3.4.6 Legal Situation as of April 2019
3.5 Securities Regulations
3.6 Consumer Credit Regulations
4 Pending or Proposed Amendments and Reforms
5 Conclusions
References
Development of Crowdfunding in Taiwan
1 Definition: The Legal Qualification of Crowdfunding
1.1 How Is Crowdfunding Defined in Your Legal Order?
1.2 Please Specify the Legal Qualifications Used in Your Legal Order for the Different Kinds of Funding Aforementioned
1.3 Has the Legislator Dealt with Those Questions?
1.4 What Kind of Financial Contributions Are Possible? May the Contribution Consist of Something Other Than Cash?
2 Normative Framework
2.1 Does a Law Specific to Crowdfunding Exist? If a Specific Law Does Not Exist, What Are the Laws Applicable to the Activity ...
2.2 Extraterritorial Application of the National Legislation
3 Supervision of the Crowdfunding Activity
3.1 Access to the Crowdfunding Business
3.1.1 Do the Platforms Have to Obtain an Authorization or a License Delivered by an Authority Prior to the Exercise of Their A...
3.1.2 Are the Platforms: As Intermediaries-Subject to the Financial Intermediaries´ Law Existing in Your Legal Order?
3.1.3 Is the Activity of Crowdfunding Perceived As a Banking Operation? Does It Go Against a Banking Monopoly Principle?
3.2 Control of the Activity
3.2.1 Has Crowdfunding Supervision Been Implemented in Your Legal Order?
3.2.2 Do Specific Criminal Law Provisions Exist in Relation to Crowdfunding? Do National Measures Against Money Laundering and...
4 Parties´ Obligations
4.1 Duties of the Platform (As Intermediary) Towards the Platform´s Users
4.1.1 Does a Specific Duty to Inform Exist?
4.1.2 Is There an Obligation to Guarantee Accomplishment of the Project?
4.1.3 Is There an Obligation of Payment of the Collected Funds?
4.1.4 Are the Platforms Subject to Any Other Duties Which Are Not Mentioned Above?
4.2 Duties of the Project Directors
4.3 Duties of the Contributor
4.3.1 Do Specific Provisions Protecting the Reality and Integrity of the Contributor´s Consent Exist?
4.3.2 What Are the Duties of a Lender (Contributor by Means of a Loan)?
4.3.3 Is the Loan Subject to the Law on Usury (If Relevant)?
4.3.4 What Are the Duties of a Donator (Contributor by the Means of Donation)?
4.3.5 Do Money Laundering Provisions Apply to This Activity?
4.3.6 What Are the Duties of a Buyer?
4.3.7 What Are the Duties of a Contributor Buying Equity in a Company?
4.3.8 Is There a Maximum Amount for an Equity Contribution? What Is the Legal Nature of the Counterpart? (Shares? Corporate Bo...
4.4 Rights of Contributors
4.4.1 In Case of Non-accomplishment of the Project, Is There Any Redress Mechanism Against the Project Director or Against the...
4.4.2 Have Specific Mechanisms Been Implemented Against Fraudulent Behavior?
5 Crowdfunding Platforms´ Activity in Taiwan
5.1 What Is the Currency Used By the Platforms for Their Activities on the Territory of Your Legal Order? Is It Possible to Us...
5.2 To the Extent That the Platform Allows Cross-Border Activity, What Is the Percentage of the Collected Funds Intended to Be...
5.3 Are the Terms of Use of Crowdfunding Platforms Easily Accessible?
5.4 Do the Terms of Use Contain Choice of Forum Clauses? Choice-of-Law Clauses? Arbitration Clauses?
5.5 In Your Country, Does a Crowdfunding Platforms´ Professional Association Exist?
5.6 Have the Crowdfunding Platforms Established a Professional Code of Ethics?
6 Tax Measures
6.1 How Are the Contributions Taxed in Your Country?
6.2 Do the Contributors Benefit from a Tax Exemption in Relation to Their Contribution?
7 Litigation in Relation to the Crowdfunding Activity
7.1 Are There Closed or Still Ongoing Proceedings in Relation to Crowdfunding?
7.2 Are You Aware of Any Arbitration Proceeding in Relation to the Crowdfunding Activity?
8 Miscellaneous
Annexes
1A. Regulations Governing the Go Incubation Board for Startup and Acceleration Firms
1B. Taipei Exchange Regulations Governing the Conduct of Equity Crowdfunding by Securities Firms
References
Annexes
Annexe 1: Loi Belge sur le Crowdfunding
Annex 2: Taiwan Legislation and Regulation
Annex 2a: Regulations Governing the Go Incubation Board for Startup and Acceleration Firms
Annex 2b: Taipei Exchange Regulations Governing the Conduct of Equity Crowdfunding by Securities Firms
Annexe 3 : Questionnaire en français
Annexe 4: Questionnaire in English
