NEW ZEALAND Law and Practice Contributed by: James Cochrane, Andrew Comer, Carlo Wan and Graeme Crombie, Lane Neave
voting systems use smart contracts to record votes but are not legal contracts; and • for those smart contracts that are intended to form a legal contract (for now at least), such contracts tend to be straightforward. Given the increased use of smart contracts and the ongoing development of blockchain, the law is having to adapt and evolve at pace. While NZ case law deal- ing with smart contracts is negligible, the NZ courts may take guidance from Australian decisions, includ- ing: • Re Nasdaq Technology AB [2021] APO 39 – where Nasdaq filed a patent application involving smart contract technology, and the Deputy Commission- er of Patents found that the claimed invention was “not for a manner of manufacture”. • ASIC v Web3 Ventures Pty Ltd [2024] FCA 64 (Block Earner) – where Australia’s regulator, the Australian Securities & Investments Commission (ASIC), sought declarations in relation to contra- ventions of the Corporations Act 2001 (the “Corpo- rations Act”), that two of Block Earner’s products were “financial products”. • ASIC v BPS Financial Pty Ltd [2024] FCA 457 (Qoin) – ASIC alleged that BPS carried on financial services business without holding an Australian Financial Services Licence (AFSL), and that it made false and misleading representations in connection with the supply or use of a financial product. The court found that the Qoin Wallet was a “financial product” for the purposes of the Corporations Act (specifically, a “non-cash payment facility”). However, the court rejected ASIC’s attempt to classify the entire Qoin blockchain that processed transactions as a “financial product” under Austral- ian law. In this sense, the case could be seen as a precedent for how smart contract-enabled prod- ucts should be legally assessed within Australia’s regulatory framework. • ASIC v BPS Financial Pty Ltd [2025] FCAFC 74 (Qoin) – on appeal from the 2024 Qoin decision, the Full Federal Court held that it was insufficient for BPS to have been appointed as an authorised representative of an AFSL holder. It found that BPS had developed, issued, promoted and operated the Qoin product in its own right. The court there-
fore declared that BPS had carried on a financial service without holding an AFSL. Some of the services provided in these cases could be classified as a “financial service” under the Financial Service Providers (Registration and Dispute Resolu- tion) Act 2008 (the “FSP Act”). The FSP Act defines financial services broadly to include services involving the transfer of money or value, such as payment ser- vices. These services would require registration and compliance with relevant regulations to ensure con- sumer protection and adherence to AML requirements (see 2.2 Crypto-Asset Regulatory Frameworks and 3.1 Licensing Requirements ). Similarly, false state- ments about financial services would be covered by the fair dealing provisions of the FMC Act and/or the Fair Trading Act 1986 (FTA) (see 2.1 Regulators and International Alignment ). In summary, while there have been no significant legal or regulatory changes concerning the enforceability of smart contracts in New Zealand in the previous 12 months, the combination of regulatory initiatives, like the FMA’s sandbox and ongoing government moni- toring, indicates a supportive environment for the continued integration of smart contracts into various sectors. 1.1.5 Industry and Trade Bodies See 3.1 Licensing Requirements regarding FSP Dis- pute Resolution Schemes (DRSs) and 4.1 Market- ing regarding New Zealand’s Advertising Standards Authority (ASA). Blockchain Forum New Zealand (formerly Block- chainNZ) continues to serve as New Zealand’s pri- mary industry group for the blockchain and digital asset sector. Operating under the NZTech umbrella, Blockchain Forum plays a pivotal role in policy advo- cacy, industry co-ordination and community engage- ment. Additionally, as noted in 1.1.1 Evolution of Uses of Blockchain and 1.1.3 Regulation of Blockchain Technology , the organisation is actively engaged in regulatory discussions through its Digital Assets Working Group, contributing to policy dialogues and consultations.
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