CSF – FinTech and Blockchain Law Watch

Top 5 regulatory changes to watch for in 2018

Jan 10 2018

As one year has drawn to a close it is time to look forward to 2018 and our tips for the most important 5 regulatory changes for the FinTech industry in Australia.

Increased access to bank data.

The Government has announced its intention to introduce an open banking regime in Australia under which customers will have the ability to give third parties such as FinTechs access to the customer’s banking data. Treasury is currently conducting a review into open banking models, with the report which was due at the end 2017 yet to be released.

Also planned to come in to effect by 1 July 2018 is mandatory comprehensive credit reporting which will give lenders access to deeper and richer sets of data on consumers to base their credit decisions on. Comprehensive credit reporting is currently voluntary.

Australian Securities and Investments Commission announces the commencement date for its crowd-sourced funding regime

Sep 13 2017

By Jim Bulling, Daniel Knight and Felix Charlesworth

The Australian Securities and Investments Commission (ASIC) has announced that will begin accepting applications under its new crowd sourced funding (CSF) regime from 29 September 2017 onwards. From this date, applications can be submitted via the existing ASIC ‘eLicensing’ portal.

In preparation for the commencement of the CSF regime, ASIC has released an information sheet outlining:

the expected application process and timeframe; and
its approach of assessing applicants.

During the period between 29 September 2017 and 27 October 2017, ASIC will assess applications lodged on similar dates in ‘batches.’ Successful applications from each batch will progress broadly at the same time. Incomplete or inadequate applications lodged during this period may be refused or placed in later application batches. Applications which are lodged from 27 October 2017 onwards will be considered individually as soon as possible.

Proprietary companies to be able to access crowd sourced funding

May 18 2017

By Jim Bulling and Rania Seoud

On 9 May 2017, the Corporations Amendment (Crowd-sourced Funding for Proprietary Companies) Bill 2017 (Bill) was released for public consultation. If passed into law, the Bill will allow proprietary companies that meet eligibility requirements to access crowd-sourced funding (CSF).

As detailed in a recent blog post on the FinTech Law Watch, CSF will become available in Australia on 28 September 2017 due to the Corporations Amendment (Crowd Sourced Funding) 2016 (Cth) (Act). However, the Act limits the availability of crowd-sourced funding to public unlisted companies.

Part 1: What is the new Australian crowd sourced funding regime?

Apr 10 2017

By Rania Seoud, Claire de Koeyer and Daniel Knight

Crowd-sourced funding (CSF) is a developing alternative to traditional capital funding methods, allowing eligible early stage / start-up companies to raise funds from a larger pool of investors without the need for costly disclosure documents such as a prospectus.

CSF took significant steps forward with the Corporations Amendment (Crowd Sourced Funding) 2016 (Cth) (Act) that establishes a regulatory framework to facilitate CSF by small, unlisted public companies in Australia receiving assent and coming into operation. The CSF regime takes effect from 28 September 2017.

The Act allows eligible unlisted public companies with an annual turnover or gross assets of up to $25 million to advertise their business plans on a licensed online crowd funding platform to raise up to $5 million in 12 month rolling periods. Investors receive a share of the company in return for their investment.

Part 2: Looking to raise capital under the new Australian crowd sourced funding regime?

Apr 10 2017

By Rania Seoud, Andrew Gaffney and Daniel Knight

While the CSF regime removes some of the existing regulatory barriers to capital raising, there are a number of other key considerations for eligible companies intending to utilise the CSF regime. Below are just a few:

CSF intermediary platform requirements: Offers for a company’s securities must be made through an authorised CSF intermediary. At this point in time and apart from service fees, it is unclear whether a CSF intermediary will impose any other obligations on the company to be admitted onto their platform (e.g. due diligence, verification and CSF offer document sign off obligations).
Disclosure requirements: The CSF offer document must contain certain information required by the regulations which are yet to be released.
Liability: The Company and its individual directors and officers may be held liable for loss or damage suffered by a person due to a defective CSF offer document. Accordingly, it is important that you have a reasonable objective basis for the contents of the CSF offer document. In particular, you will need to be careful when providing financial forecasts and statements regarding future events.
Restrictions on advertising: There will be restrictions on advertising for the CSF offer.
How do you value your business: In practice, you will need to determine a pre-money valuation for your company to set an appropriate offer issue price.
Setting a minimum size for investment: While there is a maximum investment cap of $10,000 per investor per offer, to avoid having many shareholders with small parcels and the associated administrative burden, you may want to consider setting a minimum subscription amount.
Share buy-back mechanisms: Where certain requirements are met, companies utilising the CSF regime will be exempt from meeting higher corporate governance and reporting requirements applicable to public companies for a period of 5 years (e.g. annual audit and filing of financial statements). At the expiry of the 5 year period, the company may want to ensure that it has in place effective mechanisms to allow it to convert back to a proprietary company should the need arise (e.g. consider including share buy-back, share valuation mechanisms in the company’s constitutional documents).

You may find our article on CSF intermediaries and ASIC’s CSF Guidance of use.

Part 3: Looking to become a CSF intermediary under the new Australian crowd sourced funding regime?

Apr 10 2017

By Rania Seoud, Claire de Koeyer and Daniel Knight

Central to the new CSF regime is the inclusion of the AFS licence holder who acts as the intermediary (i.e. the gatekeeper). The intermediary must hold an AFSL with the correct authorisations in order to carry out this role. After 28 September 2017, ASIC will be able to accept AFS licence applications from entities wanting to provide CSF services.

Considering acting as a CSF intermediary? There are a number of things you may wish to consider, including:

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