Facultad de Derecho

Comercio Electrónico
1 de febrero de 2022



By: Daniel Peña Valenzuela

The volatility of the main cryptocurrencies seems to be once again a global trend from which Colombia is not going to escape. The complex political situation with even the threat of a third world war reflects that intangible assets are not necessarily based on their value in the market.

Crypto assets can be considered as securities but they can also be immaterial goods or intangible assets. The specific regulation in each economic sector can determine conditions and requirements for the transferability of crypto assets.

Until now, financial regulators and supervisors have attributed a high risk to the trading of crypto assets at the level of financial consumers and an impossibility for certain operations of the supervised entities.

The anti-money laundering, transnational bribery, exchange control and anti-corruption mandatory rules have established control procedures to know the final beneficiaries and investors in cryptocurrencies.

In Colombia, several of the main players in the financial system have made alliances with international exchange companies in order to carry out pilot tests related to the use and commercialization of crypto assets by users of the financial system. In the case of Fintech with activities related to crypto actives and cryptocurrencies, one of the issues that will mark the regulatory agenda of the next government will be the recognition or not of this type of asset as financial instruments or the definition of what a supervised financial entity must take into account in order not to close the bank accounts of Colombians, when they want to carry out operations with virtual assets.

From the contractual point of view, beyond financial regulations, crypto assets can be agreed by the parties as remuneration or contractual remuneration in exchange for goods or services provided. The principle of contractual autonomy enables the use of cryptoactives and cryptocurrencies in the payment clauses.

In sum, legal certainty is necessary for there to be an economic and commercial use of cryptoactives and cryptocurrencies. The digitization of economic activities as well as the digital economy require their legal recognition as well as the reduction of the risks inherent in their circulation among citizens.

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