Cayman Islands: Virtual Asset Services Provider Legislation

Cayman has proven to be a popular jurisdiction for establishing a range of digital asset structures, including crypto investment funds, ICOs, exchanges, and entities established in connection with decentralised autonomous organisations (DAOs). Cayman’s VASP regulatory framework is based on internationally recognised standards for virtual asset service providers. Virtual asset service providers include companies, limited liability and foreign companies, and general, limited, and exempted limited partnerships, formed and, where required, registered or licenced under the VASP Act when such an entity provides virtual asset services as a business in or from within Cayman.

What Is A ‘Virtual Asset’?

Broadly, the VASP Act defines ‘virtual assets’ as digital representations of value that can be digitally traded or transferred, and can be used for payment or investment purposes. It requires the licencing and/or registration of various entities engaging in virtual asset services with the Cayman Islands Monetary Authority (CIMA). Under Cayman’s VASP, “virtual asset services” include:

a) Offering an exchange between virtual assets and fiat currencies, or between one or more forms of convertible virtual assets.

b) The transfer of virtual assets.

c) Virtual asset custody services.

d) The participation in, and provision of, financial services related to a virtual asset issuance or the sale of a virtual asset.

VASPs may also apply for a sandbox licence (based on the innovative technology or innovative methods of delivery, or on the supervisory needs of the sandbox licenced entity) in order to carry on business as a virtual asset service provider. Under the VASP Act, a sandbox licence is a temporary licence of up to one year that CIMA may direct a VASP to apply for, where:

a) The service being provided represents an innovative use of technology or uses an innovative method of delivery such that additional supervision and oversight is required.

b) It is in the best interests of the public, regulated persons or financial markets, that the service be temporarily restricted or subject to specific requirements.

c) The service promotes technology or a method of delivery that may create a systemic risk to financial markets or the jurisdiction.

d) The service poses a money laundering, terrorist financing or proliferation financing risk that existing AML rules don’t properly mitigate.

Virtual Asset Service Licences

A VASP must hold a virtual asset service licence (VASL) in order to provide virtual asset custodial services, or operate a virtual asset trading platform, or if it currently provides or operates any of these services. In determining VASL applications, CIMA will consider whether:

• An approval is against the public interest.
• The applicant has adequate personnel with the necessary skills, knowledge and experience, facilities, books, records and accounting systems, and capital and cybersecurity measures with regard to its size, scope and complexity of business.
• The applicant has complied with other requirements under the VASP Act upon CIMA’s request.

Where a licence is not required, VASPs must register under the VASP Act in order to carry on virtual asset services. Once registered, VASPs may only issue virtual assets directly to members of the public within a prescribed threshold, and must submit an issuance request to CIMA in order to obtain its prior approval. CIMA determines such requests in accordance with certain considerations, including the nature, function and purpose of the virtual asset and its likely effect on CIMA’s functions as they relate to anti-money laundering, the financial services market, and the public generally. A registered VASP may also engage a virtual asset trading platform licenced under the VASP Act in order to issue newly created virtual assets over the prescribed threshold, but must obtain CIMA’s prior approval. Where a virtual asset issuance involves the transfer or exchange of other virtual assets or fiat currency, the VASP must maintain appropriate records for each transaction involving the public and make these available for CIMA’s inspection.

CIMA requires evidence of the organisational structure of a VASP to include:

• A comprehensive full group companies structure chart, including the ultimate beneficial owners.
• Details of regulated status of entities within the group, the relevant regulated services and jurisdictions.
• Details of services provided by any related entity to the VASP.

VASPs seeking to register with CIMA must comply with the Cayman Islands money laundering, countering the financing of terrorism, countering proliferation financing and sanctions regimes. This includes appointing natural persons to act as the VASP’s anti-money laundering compliance officer, money laundering reporting officer, and deputy money laundering reporting officer.

The registration application submitted to CIMA must be supported with the following information:

• List of the applicant’s blockchain addresses (per coin).
• Details of all shareholders with more than 10 per cent shareholding together with a completed CIMA personal questionnaire.
• Information on Chief Information Officer/Chief Information Security Officer, including CV.
• Copies of cybersecurity policies (follow CIMA’s guidance on cybersecurity).
• Copies of AML/CFT policies (in line with the AML Regulations and Guidance Notes).
• Comprehensive Business Plan.
• Transaction flow charts.
• Details of outsourced arrangements and related agreements.

VASP Business Plan

A comprehensive business plan should clearly outline the following, at a minimum:

• A description of the business being undertaken or to be conducted.
• Products and services being offered or to be offered in the future and details on the process of how those services are being offered.
• Standalone financial statements covering two years and financial projections.
• Physical location of operations.
• Customer base (eg number of customers, geography/jurisdiction).
• Delivery channels and marketing plan/strategy.
• Corporate governance eg composition of board of directors, senior management, and any committees.
• Staff complement and organisational chart showing reporting lines.
• Information about contracts with affiliates and outsourcing arrangements, where applicable, and details on whether they are regulated in any jurisdictions.

All applications must be submitted with an assessment fee and a registration fee based on expected annual turnover, and an assessment by CIMA of the nature, scope and complexity of the applicant’s business.

Travel Rule

Financial Action Task Force (FATF) Recommendation 16 prescribes that originating VASPs must obtain and hold required and accurate originator information and required beneficiary information on virtual asset transfers. These requirements apply to VASPs whenever their transactions (in fiat currency or virtual assets) involve:

a) A traditional wire transfer.

b) A virtual asset transfer between a VASP and another obliged entity.

c) A virtual asset transfer between a VASP and a non-obliged entity.

The application of the FATF’s wire transfer requirements in the virtual asset context is known as the ‘Travel Rule’. 

The AML Regulations contain definitions and provisions pertaining to the identification, verification, production, record-keeping, and other relevant obligations relating to virtual assets, including the Travel Rule requirements for VASPs.

All VASPs registered or in the process of registering with CIMA were required to advise how they will comply with the Travel Rule related provisions as outlined in the AML Regulations, by submitting details of their compliance arrangements, including the relevant policies and procedures and the use of resources (including technological tools), to CIMA.

All new applicants for VASP registrations/licences are required to indicate in their applications how they will comply with the Travel Rule related provisions as part of their compliance arrangements. This information should be included as an attachment when submitting their policies pertaining to anti-money laundering and counter terrorist financing as part of CIMA’s application process.

The Benefits Of VASP Laws

While VASP legislation is still at a relatively early stage of its implementation, it is expected in the long run to result in the Cayman Islands being well-placed to provide a gold standard regulatory framework to support the establishment of entities which undertake FinTech-related services and activities.

Robert Lindley
Robert is a Partner and Head of Conyers’ Cayman & BVI Private Client and Trust practice, specialising in wealth structuring, estate planning and probate matters, in addition to advising clients in the digital assets and crypto space. Robert also has significant experience in trust and estate litigation, and other cross-border private client disputes. He has been recognised in the recent (and previous) editions of Chambers (HNW) and Legal 500 directories.

Wesley O’Brien
Wesley O’Brien is an Associate in the Private Client & Trust practice in the Cayman Islands office of Conyers. Wesley’s practice covers all areas of private client and trust law advice and litigation. He has extensive and in-depth experience advising individuals and fiduciaries on all aspects of trust law including estate planning arrangements, wealth management structures, private trust companies and variation of trusts. Prior to joining Conyers in 2019, Wesley worked in the private client, trust and taxation department of a leading Australian law firm. Wesley regularly advised high net worth and ultra high net worth individuals and families on complex estate planning and trust structuring matters. In Australia, Wesley also advised fund managers, large private and public companies on the structuring and taxation of trusts, as well as the tax implications of various commercial transactions.