QUESTIONNAIRE

CRYPTOASSETS & BLOCKCHAIN

Note to contributors: 'cryptoasset' includes cryptocurrencies (eg, Bitcoin and Ether) and crypto-tokens (eg, security tokens and utility tokens), but excludes branded loyalty points (eg, frequent-flyer miles and hotel points) and points/currencies usable for purchases within a video game.

General legal and regulatory framework

Legal framework

1 What legal framework governs cryptoassets? Is there specific legislation governing cryptoassets and businesses transacting with cryptoassets?

Presently, there is no legal framework governing cryptoassets/cryptocurrency (term used interchangeably along with other terms such as 'virtual currency'). Despite the vacuum in legislation, regulators such as the Reserve Bank of India ('RBI') have issued various cautionary circulars deterring individuals from dealing in cryptoassets. In 2018, RBI, pursuant to its circular dated April 06, 2018 ('RBI Circular') banned all RBI regulated entities (such as banks, financing institutions, non-banking financing institutions) from dealing in cryptoassets. Whilst this circular does not per se ban cryptoassets, it has chocked any financial dealing contemplated by a buyer, seller or trader of cryptoassets. In contrast, regulators such as the Securities Exchange Board of India ('SEBI'), i.e., the regulator of the Indian securities market, have continued to remain silent on its stance on regulating cryptoassets.

Given the lack of certainty, market participants have filed several petitions before the Supreme Court of India challenging the constitutionality of the RBI Circular and seeking clarity on the government's stance on the legality of cryptoassets/cryptocurrency in India. In response to these petitions, the Government, in July, 2019, released draft legislation, 'Banning of Cryptocurrency and Regulation of Official Digital Currency Act, 2019' ('Draft Legislation'), which seeks to ban any person from 'mining, generating, holding, selling, dealing in, issuing, transferring, disposing of or using cryptocurrency in the territory of India'.

Per the Draft Legislation, cryptocurrency means, any information, code, number or token generated through cryptographic means or otherwise, that provides a digital representation of value that may be exchanged with or without consideration, with the promise of having inherent value in any business activity and includes the risk of loss or expectation of profits, or functions as a store of value. The only exception carved out viz. cryptocurrency, is permitting the use of its underlying technology for experiment or research or education, provided that cryptocurrency is not used for making or receiving payment in such activity. Any violation of the Draft Legislation would attract penalty that may extend to imprisonment up to ten years.

Whilst the Draft Legislation is yet to be enacted by Parliament, it is likely that any application of cryptoassets/ cryptocurrency as a means of undertaking a financial activity or operating within the payment ecosystem may be banned.

Government policy

2 How would you describe the government's general approach to the regulation of cryptoassets in your jurisdiction?

Please see our response to Question 1. In India, since the boom in trading in cryptoassets in open markets, in 2013, regulators, specifically Reserve Bank of India ('RBI') and the Income Tax Department, have been swift in their actions to shut down any business operations involving cryptoassets. The Government on the other hand, has tempered between a negative to agnostic approach. In 2018, the finance minister in his Budget Speech, announced that, 'the government does not consider cryptocurrencies as legal tender or coin, and will take all measures to eliminate the use of crypto assets in financing illegitimate activities or as part of the payment system.' This approach seems to also reflect within the Draft Legislation pending before Parliament that explicitly bans use of cryptoassets.

In contrast, in September, 2019, a report released by a committee set up by the Ministry of Finance (Department of Economic Affairs), acknowledged that 'the Blockchain and Initial Coin Offerings (ICOs), are revolutionising the global fintech landscape' and distinguished categories of cryptocurrency, specifically utility tokens and security tokens. It should be noted that the report does not make any policy recommendations on cryptocurrency or Blockchain, unlike other aspects of Fintech, agritech, KYC, etc.

Further, while the Finance Ministry remains cautious, the RBI, is clearly opposed to the use of cryptocurrency, till date, whether evidenced through its press releases since 2013, or through the RBI Circular prohibiting financial institutions dealing in cryptocurrency or its prohibition of introducing any relaxation for innovations in relation to cryptocurrency within the regulatory sandbox.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

· Steering Committee Report: https://dea.gov.in/other-reports 'Report of the Steering Committee on Fintech Related Issues'.

Regulatory authorities

3 Which government authorities regulate cryptoassets and businesses transacting with cryptoassets?

As such no specific government authority has been identified to regulate cryptoassets and businesses transacting with cryptoassets. However, the Ministry of Finance (Department of Economic Affairs), the Ministry of Electronics and Information Technology, SEBI and RBI have been instrumental in drafting the proposed legislation seeking to ban cryptoassets. Accordingly, these government entities/regulators could have the authority to regulate cryptoassets and businesses transacting with cryptoassets.

Regulatory penalties

4 What penalties can regulators impose for violations relating to cryptoassets (eg, injunctions, fines or prison terms)?

At present, any entity regulated by the Reserve Bank of India dealing in crypotassets would be in contravention of the RBI Circular and thereby attract monetary penalties. Despite the vacuum in legislation, the Income Tax Department, has in the past, also issued notice/initiated proceedings that have required businesses dealing in cryptoassets to shut down. Additionally, basis the Draft Legislation, criminal prosecution may also be initiated that could lead to a maximum imprisonment term of ten years, along with monetary penalties being imposed.

· RBI Circular: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'

Court jurisdiction

5 Which courts have jurisdiction over disputes involving cryptoassets?

No special court or tribunal exercises specific jurisdiction over disputes involving cryptoassets. Therefore, in absence of an express or implied bar, dependent upon the pecuniary, territory and nature of dispute, i.e., civil or criminal, every court and tribunal could exercise jurisdiction, in addition to an appeal lying before the State High Court and Supreme Court of India.

Legal status of cryptocurrency

6 Is it legal to own or possess cryptocurrency, use cryptocurrency in commercial transactions and exchange cryptocurrency for local fiat currency in your jurisdiction?

Please see our response to Question 1. Whilst there is ambiguity on the legality of cryptocurrency, pursuant to the RBI Circular (i.e., restricting any RBI regulated entity such as banks, financial institutions, etc., from dealing in cryptocurrency), no exchange of cryptocurrency for local fiat currency can be affected. Further, in the event the Draft Legislation is enacted, no person can 'hold' cryptocurrency, unless such possession is to use the underlying technology or process for experiment, research or education, provided that the cryptocurrency is not used for making or receiving payment in such activity.

· RBI Circular: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'

Fiat currencies

7 What fiat currencies are commonly used in your jurisdiction?

The national currency in India is the Indian National Rupee (INR) issued by the RBI. Any foreign currency earned pursuant to trade is required to be converted in INR in accordance with foreign exchange regulations at the applicable conversion rate and thereafter such INR earned may be used as valid legal tender in India.

Industry associations

8 What are the leading industry associations addressing legal and policy issues relating to cryptoassets?

Recently, several associations such as Blockchain and Virtual Currency Association, Blockchain Foundation of India, Digital Asset and Blockchain Foundation of India and Internet and Mobile Association of India, that include industry participants and government representatives, have been constituted to delve upon legal and policy issues relating to cryptoassets.

Cryptoassets for investment and financing

Regulatory threshold

9 What attributes do the regulators consider in determining whether a cryptoasset is subject to regulation under the laws in your jurisdiction?

Please see our response to Question 1. SEBI despite remaining silent on its stance on the applicability of investment laws to cryptoassets has played a vital role in finalizing the Draft Legislation. As stated above, the Draft Legislation tabled before the Parliament, explicitly bans any person from dealing in cryptoassets (agnostic of any specific attribute of such crptoasset) including inter alia as a means for investment. In light of the blanket ban on the use of cryptoassets, regulators have not sought to identify any attributes that would distinguish its various use cases, including as a security.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'

Investor classification

10 How are investors in cryptoassets classified and treated differently (eg, ordinary (retail), institutional, sophisticated, accredited)?

Please see our response to Question 9. Investors in crypoassets are not classified or treated differently.

Initial coin offerings

11 What rules and restrictions govern the conduct of, and investment in, initial coin offerings (ICOs)?

Please see our response to Question 1 and Question 9. At present, no rules or restrictions govern the conduct of and investment in initial coin offerings. Whilst the facets of an initial coin offering remains untested in the Indian legal scenario, in the event funds are collected to obtain a 'coin' (being a representation of value or right) to be redeemed for something in the future, such collection of funds, being unregulated, could contravene the provisions of 'The Banning of Unregulated Deposit Schemes Act, 2019'. Such a contravention could attract an imprisonment term as well as a monetary penalty. Separately, it should be noted that the Draft Legislation explicitly prohibits any use of cryptocurrency as a medium of exchange, store of value and/or unit of account and or use as a means to raise funds.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'

Security token offerings

12 What rules and restrictions govern the conduct of, and investment in, security token offerings (STOs)?

Please see our response to Question 1, 9 and 10. Irrespective of the nature of offering, including a security token offering, a collection of funds for such scheme, could be deemed as an unregulated deposit thereby attracting an imprisonment term and monetary penalties pursuant to the provisions of the 'Banning of Unregulated Deposit Schemes Act, 2019'. In light of the present legislative climate, it seems unlikely that the Securities Exchange Board of India would equate a security token to a security, in light of its participation to draft the proposed legislation banning cryptocurrency including its use in any issue to raise funds, or financial transaction or investment scheme.

Stablecoins

13 What rules and restrictions govern the issue of, and investment in, stablecoins?

Please see our response to Question 12. Stablecoins are akin to 'hybrid cryptocurrency', created as a reaction to the highly unreliable nature of most of the cryptocurrencies, specifically bitcoins, whose valuation is largely determined based on speculation. Unlike cryptocurrency, the value of stablecoins is based on an underlying asset including fiat currency. Irrespective of the underlying value, given the Draft Legislation and the ambit of definition of cryptocurrency, an issue of and investment in stablecoins would be potentially prohibited.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'

Airdrops

14 Are cryptoassets distributed by airdrop treated differently than other types of offering mechanisms?

The principle behind an airdrop is to increase demand and thereby the value associated with the cryptoassets, by distributing the same to investors for free. Increasingly, cryptocurrency has been dispensed to the wallet addresses of potentially aware or unaware investors, who are deemed owners of these cryptoassets once they are aware of such 'airdrop'. The mechanism of transfer of cryptoassets has not been delved into by Indian regulators or legislators, however, given the current legislative scenario, upon an investor becoming aware of his possession of cryptoassets, i.e., being a deemed owner, he would be foul of the proposed prohibition to 'hold or possess', cryptoassets. Such airdrop could therefore inadvertently attract liability upon the potential holder and may extend to imprisonment as well.

Advertising and marketing

15 What laws and regulations govern the advertising and marketing of cryptoassets used for investment and financing?

Given the legislative proposal to equate any activity involving cryptoassets to an illegal activity, advertising or marketing of cryptoassets could fall foul of generally accepted advertising standards as well as applicable criminal laws depending upon the nature of loss suffered by the viewer of the advertisement. Such a violation could thereby attract pecuniary penalties as well as imprisonment.

Trading restrictions

16 Are investors in an ICO/STO/stablecoin subject to any restrictions on their trading after the initial offering?

Please see our response to Question 1 and Question 9. The proposed activity could potentially be deemed illegal, however, at present, there are no regulations governing investors trading in initial offerings of cryptoassets only.

Crowdfunding

17 How are crowdfunding and cryptoasset offerings treated differently under the law?

Crowdfunding is in essence the collection or pooling of funds through small financial contributions from multiple individuals for a specific project, venture or social cause. Whilst crowdfunding is per se not regulated, a sub-set of crowdfunding, i.e., peer to peer lending of fiat currency by regulated entities is a permitted legal activity regulated by RBI. Unlike peer to peer lending of fiat currency, given that an offering of cryptoassets is a collection of fiat currency for a potential illegal activity, i.e., 'dealing in cryptocurrency', such an offering could fall foul of the Draft Legislation and accordingly deemed illegal.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

Transfer agents and share registrars

18 What laws and regulations govern cryptoasset transfer agents and share registrars?

Please see our response to Question 1 and 9 above. At present, there are no regulations applicable to cryptoasset transfer agents and share registrars.

Anti-money laundering and know-your-customer compliance

19 What anti-money laundering (AML) and know-your-customer (KYC) requirements and guidelines apply to the offering of cryptoassets?

In India, any person that attempts to or indulges or knowingly assists in any process or activity connected with the proceeds of a crime, including inter alia its concealment, possession, acquisition or use will be guilty of offence of money-laundering.

Whilst, the offering of cryptoassets is not presently an offence, given the draft proposal tabled before Parliament, it is likely that any person participating in an offering of cryptoassets, would fall foul of Indian anti-money laundering laws. Any person found guilty of such an offence may be punished with imprisonment along with a monetary fine. In order to prevent money laundering activities, regulated entities, such as banks, stock exchanges, financial institutions, or persons carrying out designated business, are required to undertake KYC. KYC obligations include collection of personal identification details such as an individual's personal account number, unique identification number, etc.

Given that a key concern regarding businesses offering cryptoassets is its likelihood to act as a vehicle for money laundering activities in India, such businesses undertake extensive KYC, despite not being mandated to do so by legislation.

Sanctions and Financial Action Task Force compliance

20 What laws and regulations apply in the context of cryptoassets to enforce government sanctions, anti-terrorism financing principles, and Financial Action Task Force (FATF) standards?

India being a member to the Financial Action Task Force, has set up the Financial Intelligence Unit – India (FIU-IND) as its central national agency responsible for receiving, processing, analysing and disseminating information relating to suspect financial transactions.

Pursuant to the prevalent anti-money laundering legislation, identified reporting entities are required to furnish information regarding inter alia cash transactions exceeding permitted values, suspicious transactions, cross border transactions exceeding specified thresholds. In the event that a regulated entity, such as a bank, financial institution or stock exchange receives information regarding suspicious transaction of cash transactions breaching prescribed thresholds, agnostic of whether the underlying transaction is in relation to cryptoassets, FIU-UID may take appropriate action (including criminal proceedings) against the party involved in such transaction.

Cryptoasset trading

Fiat currency transactions

21 What rules and restrictions govern the exchange of fiat currency and cryptoassets?

Please see our response to Question 1. Pursuant to the RBI Circular, fiat currency cannot be exchanged for cryptoassets.

· RBI Circular: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243

Exchanges and secondary markets

22 Where are investors allowed to trade cryptoassets? How are exchanges, alternative trading systems and secondary markets for cryptoassets regulated?

Please see our response to Question 1. Investors will not be able to execute a trade of cryptoassets for fiat currency pursuant to the RBI Circular. Absent of the exchange of fiat currency, investors may presently execute pure cryptoasset trades. It should be noted that on account of the proposed legislation tabled before Parliament, a cryptoasset exchange executing a pure cryptoasset trade could also attract penalty, given that a ban has been proposed on any 'dealing' of cryptoasset, including via an exchange.

· RBI Circular: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

Custody

23 How are cryptoasset custodians regulated?

Please see our response to Question 1. Presently, cryptoasset custodians are not regulated in India, although their operations could be deemed illegal upon the Draft Legislation being enacted.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

Broker-dealers

24 How are cryptoasset broker-dealers regulated?

Please see our response to Question 23. A Cryptoasset broker-dealer whilst not being regulated presently, their operation would be illegal upon the Draft Legislation being enacted.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

Decentralised exchanges

25 What is the legal status of decentralised cryptoasset exchanges?

Please see our response to Question 22. Presently, cryptoasset exchanges (centralised or decenteralised) remain unregulated and may affect trade of cryptoassets for cryptoassets, only. However, upon the enactment of the Draft Legislation, such an exchange would be deemed to be an illegal activity and prohibited from affecting any cryptoasset trade.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

Peer-to-peer exchanges

26 What is the legal status of peer-to-peer (person-to-person) transfers of cryptoassets?

Commonly, a parallel is often drawn between cryptocurrency and prepaid instruments that facilitate the exchange of funds between peers. Such an activity is regulated under the Payment and Settlement Act, 2007 and the RBI Master Directions on Issuance and Operations of Prepaid Payment Instruments dated October 11, 2017. However, it should be noted, that prepaid instruments have intrinsic value and are 'loaded/reloaded with cash', unlike cryptocurrency that may not per se have any intrinsic value but its value being contingent upon its demand and supply. Since, cryptocurrency would not fall under the aforementioned legislation, today, a peer to peer transfer of cryptoassets would arguably be permitted. However, such a transfer could also potentially be deemed illegal given that the Draft Legislation seeks to prohibit any 'transfer' of cryptoasset.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

Trading with anonymous parties

27 Does the law permit trading cryptoassets with anonymous parties?

Please see our response to Question 1. Trading of cryptoassets irrespective of whether such party is identified or anonymous today, potentially remains legal, given that there is no legislation enacted prohibiting the same. In light of cryptoassets being commonly viewed as a front to conduct suspicious transactions, a cryptoasset trade with anonynomous parties, if falling under the radar of the Financial Intelligence Unit set up under FATF, could attract penal consequences.

Foreign exchanges

28 Are foreign cryptocurrency exchanges subject to your jurisdiction's laws and regulations governing cryptoasset exchanges?

At present, foreign cryptocurrency exchanges facilitating cryptocurrency to cryptocurrency trades are not subject to any laws or regulations in India.

29 Under what circumstances may a citizen of your jurisdiction lawfully exchange cryptoassets on a foreign exchange?

Currently, it is feasible for an Indian citizen to lawfully exchange cryptoassets for other cryptoassets on a foreign exchange so long as such an exchange does not involve the exchange of fiat currency in light of prevailing foreign exchange norms that only permit cross border remittances of permissible activities. Further, given that the Reserve Bank of India has issued a circular prohibiting any dealing in cryptoassets, this prohibition would thereby potentially extend to any cross border dealing in cryptoassets, as well.

· RBI Circular: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243

Taxes

30 Do any tax liabilities arise in the exchange of cryptoassets (for both other cryptoassets and fiat currencies)?

Despite Indian tax authorities being proactive in initiating action against businesses involved in the exchange of cryptoassets for other cryptoassets or fiat currencies, the basis for such action has to be established. Since the Finance Minister's Budget Speech 2018-19, declaring cryptocurrency as illegal tender, Indian tax authorities have issued notices to businesses failing to declare profit earned from cryptocurrency. Legally, given that the status of crytoassets is yet to be determined, it is arguable that such an earning could be deemed as a recurring or non-recurring 'income earned from other sources' requiring the payment of income tax by the individual or organization.

Cryptoassets used for payments

Government-recognised assets

31 Has the government recognised any cryptoassets as a lawful form of payment or issued its own cryptoassets?

The Indian Government has not recognized any cryptoassets as a lawful form of payment. On the contrary, the Government and regulators have been vocal in their objection to the use of cryptoassets as a form of payment. In a push to eradicate the usage of such cryptoassets, the Government has contemplated the issuance of a 'digital rupee'. Per public reports, such digital rupee is poised to act as a digital representation of fiat currency issued within the monetary framework of the Reserve Bank of India.

· RBI Circular: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243

Bitcoin

32 Does Bitcoin have any special status among cryptoassets?

No, bitcoin does not at present have any special status among cryptoassets in India.

Banks and other financial institutions

33 Do any banks or other financial institutions allow cryptocurrency accounts?

The Reserve Bank of India has categorically prohibited financial institutions from dealing in cryptoassets pursuant to its circular dated April 06, 2018. Pursuant to this directive, today, it is unlikely that a bank or financial institution would allow any person to open a cryptocurrency account.

Cryptocurrency mining

Legal status

34 What is the legal status of cryptocurrency mining activities?

Mining of cryptocurrency essentially requires the 'miner' to solve puzzles and add transactions onto the distributed ledger technology. This activity, being integral to the Blockchain, rewards the miner ordinarily with 'cryptocurrency'. Popularly, mining is often viewed as the creator of cryptocurrency, akin to a regulator issuing fresh currency within the financial market. Unlike significant discussion being centred on the use of cryptocurrency, there is limited public discussion on mining. While the Draft Legislation seeks to ban the 'mining of cryptocurrency', but mining as an activity per se is yet to be legally evaluated.

Government views

35 What views have been expressed by government officials regarding cryptocurrency mining?

Government officials have not been vocal on their views regarding cryptocurrency mining, however, given their otherwise cautious to negative approach to cryptocurrency, mining of such cryptocurrency would potentially be viewed in a similar light. In fact, despite public discussion of cryptocurrency mining, the Draft Legislation is explicit in its prohibition of cryptocurrency mining.

· Draft Legislation: https://dea.gov.in/recent-update – 'Report and draft Bill of the IMC on Virtual Currencies'.

Cryptocurrency mining licences

36 Are any licences required to engage in cryptocurrency mining?

At present, no licenses are required to engage in cryptocurrency mining.

Taxes

37 How is the acquisition of cryptocurrency by cryptocurrency mining taxed?

Whilst acquisition of cryptocurrency by cryptocurrency mining is not currently taxed, this question remains moot on the outcome of the ultimate legislation of cryptocurrency as a legal or illegal asset.

Blockchain and other distributed ledger technologies

Node licensing

38 Are any licences required to operate a blockchain/DLT node?

In India, no licenses are required to operate a Blockchain/DLT node.

Restrictions on node operations

39 Is the operation of a blockchain/DLT node subject to any restrictions (eg, based on sanctions/AML/KYC/FATF rules and standards)?

The Indian Government has been proactive in its push for businesses to innovate using Blockchain/DLT and has accordingly not imposed any legal or regulatory restrictions on the operation of a Blockchain/DLT node.

DAO liabilities

40 What legal liabilities do the participants in a decentralised autonomous organisation (DAO) have?

Commonly a decentralised autonomous organization is an organization whose decisions are made electronically by a written computer code or through vote of its members. It is a system wherein hard coded rules define which actions an organization will take. The organization seeks to remove the 'human element' behind decisions and base the same on a code. While liabilities arising out of such an organization in India remain untested, ultimately, an assessment would have to be made of the nexus between the organization and the ultimate creator/controller. For instance, companies in India are legal entities, wherein in the event of a contravention of legislation by a company, ultimately, its directors or individuals vested with the responsibility to manage the company are deemed liable. The same parallel may be drawn to such an organization.

DAO assets

41 Who owns the assets of a DAO?

Lack of control by a 'human element' appears to be the cornerstone of a 'decentralized autonomous organization', ultimately, ownership would be tested basis the parties that have ultimate influence or contribution to the decentralized organization. For instance, if multiple parties contribute towards the DAO, each such party could potentially have a right to the assets. Ordinarily, such parties would execute an agreement that identifies their contribution to the DAO and accordingly distribute the assets amongst them.

Open source

42 Is DLT based on open-source protocols or software treated differently under the law than private DLT?

This question at present is not relevant to the Indian jurisdiction, since legal and regulatory treatment and distinction between DLT is yet to be contemplated.

Smart contracts

43 Are smart contracts legally enforceable?

Smart contracts unlike digital agreements are a series of codes/functions that facilitate the ultimate execution of an agreement. Distinct from the terminology, a smart contract would therefore be equated to any other computer programme. In other words, the 'smart contract' is the law in itself that carries out or monitors the underlying activity that a legal contract seeks to enforce. Therefore, it is arguable that if the agreement in itself is legally enforceable, the smart contract seeking to execute the legal agreement would therefore be enforceable.

Patents

44 Can blockchain/DLT technology be patented?

Blockchain/DLT has gained immense popularity in India, not just with Government entities but also with burgeoning start-ups. In India, patents are obtained pursuant to the Indian Patent Act, 1970, that requires an invention, i.e. a new product or process to involve an inventive step and be capable of industrial application. An inventive step essentially requires the invention to involve technical advancement over existing knowledge and/or have economic significance, making the invention not obvious to an otherwise skilled person in that field. Prima facie, Blockchain appears to be the prodigal candidate to obtain a patent. However, a key roadblock to any technological invention, from obtaining a patent, is the legislation's exclusion of a 'per se computer programme'. Since, the Blockchain/DLT is primarily a set of computer programmes or codes, it may provide the author with copyright but prove difficult to obtain a patent.

Update and trends

Recent developments

45 Are there any emerging trends, notable rulings or hot topics related to cryptoassets or blockchain in your jurisdiction?

Unlike the scare around cryptoassets, Blockchain has recently undergone immense traction and applaud in India. In fact, the Government report, forming the basis for the proposed legislation banning cryptocurrency, acknowledges that Blockchain will play a major role in ushering a new digital age and explicitly excludes the technology from the purview of the ban. Both private entities as well as Government institutions have been aggressive in their push to innovate using this technology. Noteworthy developments include, the Government of Andhra Pradesh dedicating a portion of the state to develop and use Blockchain in banking and finance as well as exploring the use of smart contracts. India's Defence Minister has declared that Blockchain has in fact 'revolutionized the existing paradigm of warfighting' and that the ministry is seeking to employ this technology to better safeguard the security of critical infrastructure. The Reserve Bank of India has also consistently in its white papers highlighted the various use cases of Blockchain and encouraged its deployment in the finance services market. Given the vote of confidence, the Indian market is keenly observing the policy initiatives the Government may potentially release in the coming years.

Law stated date

46 Give the date on which the above content is accurate.

Published In:Lexology

Date: January 16, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.