“The direction is for us to consider this so-called virtual currencies offerings as possible securities in which case we will apply the Securities Regulation Code,” Aquino was quoted as stating. We have seen particularly in the social media sites that there are offers of initial coin offerings, most popular of which, of course [are] bitcoin and Ethereum…but [there are] new ones which may be considered as securities.

Under Rule 26.3.5 par. 4 of the 2015 Implementing Rules and Regulations of the Securities Regulation Code (Republic Act 8799), an investment contract has been defined as a contract, transaction or scheme (collectively “contract”), whereby a person invests his money in a common enterprise and is led to expect profits primarily from the efforts of others.
 
Applying the Howey Test as discussed by the Honorable Supreme Court in Power Homes Unlimited vs. SEC (G.R. No. 164182, February 26, 2008), a cloud mining contract is an investment contract falling within the purview of the term “securities” as defined by law. First, there is investment of money because an investor is expected to part with his hard-earned money in order to enter into these contracts. Second, there is an investment in a common enterprise because the party soliciting investments pool the funds collected to purchase mining equipment for use in the profit-making activity. Third, there is expectation of profits because the investor is given the promise of a return in the form of fiat currency or cryptocurrency. Lastly, the profits are generated from the efforts of others because the cloud mining company undertakes to perform all the profit-generating activities and distributes all the profits to all investors after deducting mining costs.