Name
Global FinTech Guide
Country _ Name
Thailand
SectionTitle
ICO/token sale
Body
Companies and projects have increasingly relied on the sale of digital assets, or tokens, as a means of fundraising. These tokens generally do not grant the holders an ownership interest in the issuing company or project, but may provide governance rights, access rights or other utility. This has been conducted through public sales known as initial coin offerings (ICOs), proliferation through token generation events (TGEs) or private sales, among other mechanisms. While showing characteristics of traditional methods of fundraising, there are a range of unanswered questions related to the legal classifications of such products. As ICOs and TGEs will usually be distributed online and internationally, there is usually no single legal framework applying to such transaction, and the legal framework of each market in which the tokens may be offered or sold needs to be considered.

Introduction

Attitude of the country towards ICOs/token sales

Initial coin offerings (ICOs) have been recognised by the government and relevant regulators as alternative fundraising. Thailand's regulations regarding ICOs allow issuers to offer certain types of digital assets – including real estate-backed tokens – to the public as a fundraising scheme.

Legal affairs

Presence of any explicit regulation on ICOs and the issuance of token/coins

Generally, the Emergency Decree on Digital Asset Businesses B.E. 2561 (2018) (Digital Asset Decree) is the main instrument in Thailand that governs digital assets businesses, including the issuance and offering of digital assets to Thai investors. The SEC, which is the regulator for this has also issued a notification requiring issuers of certain digital tokens to obtain prior approval from the SEC. These 'regulated digital tokens' are currently classified as (i) investment digital tokens; (ii) utility digital tokens that are not ready to use; (iii) Group 2 Ready-to-use utility digital tokens* that are intended to be listed on digital asset exchange; and (iv) real estate-backed digital tokens, (v) infrastructure-backed digital tokens, and (vi) sustainability-grouped tokens (i.e. green token/social token/sustainability token/sustainability - linked token) .

*Group 2 Ready-to-use tokens are tokens that are 1) ready to use, and 2) not issued for consumption purposes, or as a digital representation of a certificate.

On the other hand, non-fungible tokens (NFTs), meme tokens, and other nonregulated digital tokens are not subject to an approval requirement.

Crypto currencies are also not considered to be regulated digital tokens, and issuance of crypto currency is not subject to an approval requirement from the SEC.

Presence of any explicit restrictions on ICOs or the issuance, distribution and/or transfer of token/coins
Subject to the law, issuers must offer their digital token/coin only through an SEC-approved portal to (1) institutional, ultra-high-net worth, private equity, and venture capital investors; and (2) retail investors, who have an investment limit of THB 300,000 (approx. USD 8,774) per person per offering round. This amount only applies to the ICO subscription (i.e. primary market), and not to trading or investment in crypto currencies or digital tokens on the exchange, or with a dealer or a broker (i.e. secondary market). In each round, issuers must not offer digital tokens to retail investors in an amount exceeding four times the issuer's shareholder equity, and this cannot exceed 70% of the total offering amount per round.

Obligations and requirements to issue token/coins

Issuers who wish to conduct an ICO of a regulated digital token must obtain approval from the SEC, which must also consider the registration statement and the draft prospectus. If approval is granted, the issuer can then offer the regulated digital token to specific groups of investors through an SEC-approved portal. If regulated digital tokens are offered to a specific group of investors, or they have a total value which is less than the prescribed amount, the approval requirement will be waived (private placement exemptions).

If the issuer wishes to receive crypto currencies as remuneration for the ICO, only approved crypto currencies – currently only Bitcoin (BTC), Ether (ETH), XRP, and Stellar (XLM) – are allowed. Fees for issuing digital assets in Thailand:

  • Approval application fee – THB 300,000 (approx. USD 8,774);
  • Submission fee for registration statement and prospectus – 0.05% of the total value of the digital tokens offered for sale; and
  • Annual fee – minimum THB 10,000 (approx. USD 292).


Classification of token/coins in the jurisdiction

According to the Digital Asset Decree, digital assets can be classified into two (2) types:

  • Digital tokens – An electronic data unit which is used as a determinant of the rights of a token holder under an agreement between the token holder and the token issuer; and
  • Crypto currency – A digital medium of exchange for goods, services, rights, or other digital and physical tradable assets (e.g. Bitcoin or XRP).


The characteristics of each token or coin determine whether it is recognised as currency/a payment instrument, a security, or an investment product.

For example, tokens or coins pegged to the value of a fiat currency or a specific asset (such as stable coins pegged to the Thai baht) may fall under the scope of e-money, while a digitised debenture may be regarded as a security if its characteristic fall within the scope of securities under the Securities and Exchange Act B.E. 2535. For investment products, such as derivatives, CFDs or futures contracts backed by digital assets, there are no regulations from the SEC that explicitly deal with this kind of product in Thailand.

It is noteworthy that although Thailand has the Derivatives Trading Act B.E. 2546 (2003) (DTA), derivatives subject to the DTA must be backed by the specific 'goods' specified by law, such as gold, silver, petroleum, or platinum. Digital assets, however, are not recognised, so derivatives backed by digital assets are not regulated under the DTA.

Presence of a duty to publish a prospectus bevor offering token/coins to investors

Yes, an issuer must file a registration statement and a draft prospectus with the SEC for consideration before a public offering of regulated digital tokens. The registration statement and the draft prospectus must comply with the minimum requirements prescribed by the SEC.

Publication of information about the digital token offering can be carried out, with restrictions, after the registration statement and the draft prospectus have been submitted to the SEC. The restrictions will be lifted once the registration statement and the draft prospectus are deemed effective.

Presence of AML/KYC requirements that are needed to be fulfilled regarding (i) the initial issuance of token/coins and (ii) any following transfer of token/coins to third parties

Under the SEC notification, the ICO can only be done through the SEC-approved portal. The portal has a duty, by law, to conduct due diligence, investigate, and verify that digital token offerings by the issuer follow the criteria prescribed by the SEC. Moreover, the portal must perform 'know your customer' (KYC), and customer due diligence (CDD) procedures for all investors in order to comply with anti-money laundering requirements.

Note that the role of a portal is similar to that of a financial adviser in a conventional shares public offering. Digital asset exchanges, which are secondary markets for token/coin trading, also need to conduct and comply with AML and KYC requirements for the transfer of tokens or coins to third parties.

Additional comments regarding (i) the legal situation for ICOs/token/coins and (ii) any following transfer of token/coins to third parties

There are some nonregulated digital tokens recognised by the SEC but not subject to ICO compliance and regulations. However, the law prohibits digital asset exchanges from listing nonregulated digital tokens.

Economic conditions

Market size for ICOs/token sales and existence of any previous regulated ICO/token sales in the jurisdiction

Currently, there are two ICO projects that obtained approval from the SEC. Note that as of August 2024, there are 6 ICO portals registered with the SEC.

Additional comments regarding the economic situation for ICOs/token sales or what companies must be aware of in this business area

There are many projects on the issuance of nonregulated digital tokens, especially for NFTs.

From the SEC's perspective, an NFT marketplace may be regarded as a digital asset exchange, which requires a license if it offers the types of NFTs deemed to be regulated digital tokens. However, the SEC has previously announced that it prohibits all licensed digital exchanges for listings and trading of non-regulated digital tokens, including NFTs. This implies that all marketplaces for NFTs can only offer listings and trading for NFTs that they have verified to be non-regulated digital tokens.

Currently, the SEC is in the process of studying and reconsidering how NFT marketplaces should be regulated, in order to be consistent with global practice.

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