Guatemala -- Securities Classification Regulatory Overview

Guatemala does not currently have specific legislation or a dedicated regulatory framework for cryptocurrency tokens. As such, the classification of cryptocurrency tokens as securities would rely on the interpretation of existing financial and securities laws, primarily the Ley del Mercado de Valores y Mercancías (Securities and Commodities Market Law), Decree Number 34-96, and the general oversight of the Superintendencia de Bancos de Guatemala (SIB), which regulates financial institutions and the securities market.

The SIB has consistently issued warnings regarding the risks associated with cryptocurrencies, emphasizing that they are not legal tender, are not regulated by the SIB, and do not fall under the guarantee of the Deposit Guarantee Fund. However, these communiqués generally focus on consumer protection and financial stability risks, rather than detailed securities classification.

Legal Test Used (Equivalent to Howey Test)

Guatemala does not have a "Howey Test" equivalent specifically for crypto assets. Instead, the classification would depend on whether a crypto token meets the definition of a "valor" (security) or "instrumento financiero" (financial instrument) under the Ley del Mercado de Valores y Mercancías (Decree 34-96).

The law broadly defines "valores" (securities) in Article 2 as:

"Todo título, anotación en cuenta, contrato o cualquier otro documento o instrumento, emitido o celebrado en forma masiva o no, con características homogéneas o no, que represente o cree derechos de crédito, de participación, de propiedad o cualquier otro derecho o interés en una empresa o patrimonio, destinado a la inversión, al financiamiento o al intercambio."

(Translation: "Any title, book-entry, contract or any other document or instrument, issued or entered into massively or not, with homogeneous characteristics or not, that represents or creates credit rights, participation rights, property rights or any other right or interest in a company or patrimony, destined for investment, financing, or exchange.")

While not a direct four-prong test like Howey, the key elements that would trigger securities classification are:

1. Investment Purpose: The instrument is "destinado a la inversión" (destined for investment).
2. Representation of Rights/Interests: It represents "derechos de crédito, de participación, de propiedad o cualquier otro derecho o interés en una empresa o patrimonio" (credit rights, participation rights, property rights, or any other right or interest in a company or patrimony). This is similar to the "common enterprise" and "expectation of profit" prongs of Howey.
3. From Third-Party Efforts: Although not explicitly stated as "from the efforts of others," the concept of "derechos... en una empresa o patrimonio" implies that the value or profit is derived from the underlying entity's activities.
4. Massive Issuance/Public Offer: The law mentions "emitido o celebrado en forma masiva o no," indicating that even instruments not issued massively can be securities, but a "public offer" (oferta pública) is a critical trigger for regulatory oversight and registration requirements.

Therefore, a crypto token would likely be considered a security if it is offered to the public and investors expect to profit from the efforts of the token issuer or a third party, rather than from the intrinsic utility or consumption of the token itself.

Which Tokens Are Considered Securities

Based on the above interpretation:

• Security Tokens: These are the most likely candidates to be classified as securities. Tokens representing ownership in a company (equity tokens), a debt instrument (bond tokens), or a right to a share of profits or revenue are almost certainly "valores" under Guatemalan law.
• Investment Tokens/ICOs: Tokens issued during an Initial Coin Offering (ICO) where purchasers are primarily motivated by an expectation of profit from the development or future success of a project managed by the issuer, would likely be deemed securities.
• Utility Tokens (Conditional): If a utility token is marketed and sold primarily as an investment vehicle, with a promise of future appreciation or returns before its actual utility is fully developed or widely adopted, it could be classified as a security. However, if the token's primary purpose is to grant access to a network or service, and its value is derived solely from its use within that ecosystem, it might not be a security. The "substance over form" principle would apply.
• Payment Tokens/Cryptocurrencies (Unlikely): Cryptocurrencies like Bitcoin or Ether, when used purely as a medium of exchange or store of value, are generally not considered securities under this framework. The SIB has explicitly stated they are not legal tender, but has not classified them as securities. However, if such a token were part of a structured investment scheme, it could potentially be reclassified.

Registration/Exemption Requirements for Token Issuers

If a crypto token is classified as a "valor" (security) and is offered to the public ("oferta pública"), the issuer would be subject to the requirements of the Ley del Mercado de Valores y Mercancías:

1. Registration of the Issuer: The issuer (or the entity responsible for the offer) would need to be authorized by the SIB.
2. Registration of the Security: The specific token (security) itself must be registered with the Registro del Mercado de Valores y Mercancías (Registry of Securities and Commodities Market), which is managed by the SIB.
3. Disclosure Requirements: The issuer would be required to publish a prospectus or an equivalent disclosure document containing detailed information about the issuer, the project, the token, the risks involved, financial statements, and how the funds will be used.
4. Ongoing Reporting: Issuers of registered securities are subject to continuous reporting obligations, including periodic financial statements and disclosure of material events.

Exemptions: The law typically provides exemptions for certain types of offers, such as:

• Private Placements: Offers made to a limited number of qualified or institutional investors, not considered a public offer.
• Small Offers: Offers below a certain monetary threshold, if specified in regulations (though the primary law focuses more on the public nature of the offer).

The challenge for crypto issuers is the lack of specific guidance on how to adapt traditional securities registration processes to a novel digital asset.

Secondary Trading Rules

If a crypto token is classified as a security and has been publicly offered and registered:

• Regulated Exchanges: Secondary trading would theoretically need to occur on regulated securities exchanges (like the Bolsa de Valores Nacional - BVN) or through licensed securities brokers.
• Licensed Intermediaries: Any entity facilitating the secondary trading of these tokens would need to be licensed by the SIB as a stockbroker or exchange.
• Compliance: All transactions would be subject to existing market transparency, anti-money laundering (AML), and counter-terrorist financing (CFT) regulations applicable to traditional securities.

Currently, there are no crypto exchanges in Guatemala licensed as securities exchanges by the SIB. Most secondary trading of crypto assets by Guatemalans occurs on unregulated international platforms.

Enforcement Examples

Due to the absence of specific crypto legislation and a cautious, rather than proactive, regulatory stance, there are no publicly reported enforcement actions or legal precedents specifically classifying and prosecuting cryptocurrency tokens as unregistered securities under the Ley del Mercado de Valores y Mercancías in Guatemala.

Enforcement concerning crypto in Guatemala, if any, would likely fall into broader categories:

• SIB Warnings: The SIB has consistently issued warnings to the public about the risks of investing in or using cryptocurrencies. These are preventative measures, not enforcement actions against issuers.
  • Example SIB Communiqué: Comunicado de Prensa 04/2021 (Press Release 04/2021) from the Superintendencia de Bancos de Guatemala, which reiterates that crypto assets are not legal tender and are not regulated by them, highlighting associated risks. While not an enforcement action, it sets the regulatory tone.
• AML/CFT Investigations: If crypto assets are involved in money laundering, terrorist financing, or other illicit activities, the relevant authorities (e.g., Fiscalia contra el Lavado de Dinero u Otros Activos – AML Prosecutor's Office) would investigate under existing anti-money laundering laws, not specifically securities laws.
• Fraud Investigations: If a crypto project is deemed a fraudulent scheme, general criminal fraud statutes would be applied, regardless of whether the token itself is also an unregistered security.

Specific Legislation and Regulatory Guidance URLs

1. Ley del Mercado de Valores y Mercancías (Decree Number 34-96):

   • This is the primary law. Finding a direct, stable URL from a government source can be challenging. Often, it's found on legal databases or archived government sites.
   • A reliable source for legislative texts in Guatemala is often the Congress website or legal information portals.
   • Example Search Query: "Ley del Mercado de Valores y Mercancías Guatemala Decreto 34-96"
   • (Note: A direct, permanent government URL for this specific law text isn't consistently available online from a single, official source that doesn't require subscription or deep navigation. However, the law itself is well-established). You can often find it cited or reproduced on legal information sites. Example of a governmental link where laws might be searched: Congreso de la República de Guatemala (though finding the exact PDF might require a search on their site).

2. SIB Communiqués on Cryptocurrencies:

   • The Superintendencia de Bancos de Guatemala regularly publishes press releases and communiqués. You would need to navigate their official website and search for "criptomonedas" or "activos virtuales."
   • Official SIB Website: https://www.www.sib.gob.gt/
   • Look for "Comunicados de Prensa" or "Circulares." A specific communiqué from late 2021 (e.g., Comunicado de Prensa 04/2021 or similar) often reiterates their stance. Direct links to specific press releases change as new content is added, so navigating the site for the most recent statement is recommended.

Disclaimer: This information is for general informational purposes only and does not constitute legal advice. The regulatory landscape for cryptocurrencies is rapidly evolving, and specific legal advice should be sought from a qualified legal professional in Guatemala.