Regulating Non-Fungible Tokens (NFTs) within the Framework of U.S. Securities Law
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Abstract
Although Thailand has enacted the Emergency Decree on Digital Asset Businesses B.E. 2561 (2018) to regulate certain types of digital asset offerings and trading, the regulatory framework concerning non-fungible tokens (NFTs) remains unclear. Due to their diverse and unique characteristics, NFTs may not fall squarely within the existing legal definitions, thereby necessitating complex interpretation and case-by-case rulings by the Securities and Exchange Commission of Thailand (SEC) to align with the applicable law. This is particularly problematic when NFTs resemble “securities” or are used as instruments for fundraising, which may result in legal ambiguities, investor protection concerns, and broader implications for national economic stability. In contrast, the United States is able to apply the Securities Act of 1933 by analyzing whether NFTs constitute “securities” in the form of “investment contracts” based on the criteria established in the landmark case of SEC v. W.J. Howey Co. Accordingly, the author proposes that Thailand should evaluate the scope of the definition and appropriate regulatory criteria for NFTs by adopting the Howey Test, developed by the U.S. Securities and Exchange Commission, to ensure legal clarity and support the stability of the digital asset market in Thailand.
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References
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