Tokenising real-world assets

A tokenised asset usually falls under securities law, not under MiCA. The token changes how the asset is recorded and transferred, not what it is: a share remains a share, a fund unit remains a fund unit. ORWL Avocats classifies the asset and the token, designs the structure of the offer with the client and represents it before the French financial regulators, the AMF and the ACPR, including for issuers and platforms established outside France.

Tokenising a real-world asset (RWA) means representing on a blockchain a right over an asset that exists off-chain: shares in a company, fund units, a building, a stock of gold, a portfolio of receivables. The appeal is twofold: splitting the asset into fractions to open it to more investors, and making it easier to transfer.

The law looks not at the technology but at the rights the token confers. That classification determines the regime of the offer, the status of intermediaries and the conditions for a secondary market. It must be settled before a single line of code is written.

Which regime applies to a tokenised asset?

Three regimes cover most tokenisation projects:

• securities law, as soon as the token confers a financial right over the issuer or over the income from the asset;
• the MiCA Regulation, for tokens that are not financial instruments, and in particular for those that aim to maintain a stable value by referencing an asset;
• in France, intermediation in miscellaneous assets (intermédiation en biens divers), where the offer concerns rights over an asset managed on behalf of investors, with an emphasis on financial return.

MiCA plays only a residual role. The Regulation excludes financial instruments from its scope, and the ESMA guidelines on the qualification of crypto-assets as financial instruments confirm that the form of the token changes nothing in the analysis. A project presented as a crypto-asset issuance may therefore turn out to be an offer of securities, with all the constraints that follow.

A single project may combine several classifications: a security token for the asset, a utility token for access to the platform. The analysis is carried out token by token, and the firm drafts the legal opinion on token classification that platforms, financial partners and regulators ask for. A platform authorised under MiCA cannot admit to trading a token that is a financial instrument: classification also determines the token’s liquidity.

Fractionalised NFT collections follow similar reasoning. ORWL Avocats also advises NFT marketplaces on the limits of MiCA’s exclusion of NFTs.

What tokenisation requires, asset by asset

Shares and bonds

A tokenised share or bond remains a financial security. French law allows it to be recorded on a shared electronic recording device (dispositif d’enregistrement électronique partagé, DEEP, the French legal term for a distributed ledger), with the same effect as a book entry in a securities account, as long as the security is not admitted to the operations of a central securities depository. The register changes; the rest of securities law still applies.

An offer of these securities to the public requires, in principle, a prospectus approved by the AMF (Autorité des marchés financiers, the French financial markets regulator). Below a threshold set under the Prospectus Regulation, raised by the Listing Act, the issuer publishes instead a synthetic information document (document d’information synthétique, DIS) and files its marketing communications with the AMF.

The two documents do not travel equally. An approved prospectus can be passported to other Member States; the DIS is a French national document that covers offers in France only. ORWL Avocats also advises issuers and platforms established abroad that serve French investors.

Two further points call for particular care:

• legal form: under French law, not every company may offer its securities to the public, and a société civile (a French non-trading company) may not;
• the route chosen: a direct offer by the issuer, an offer through a crowdfunding service provider or the involvement of an investment firm do not entail the same obligations.

Where the asset cannot easily be transferred, issuing bonds backed by it is often the simplest structure. The investor holds a claim whose repayment tracks the value of the asset, and a security interest can secure access to the asset in the event of default.

Fund units

Financial institutions tend to start by tokenising fund units. Units or shares of a fund can be recorded on a DEEP and circulate as tokens without the fund changing regime: an authorised management company manages it, a depositary holds its assets, and its marketing follows the rules that apply to funds.

Tokenisation then concerns the register, subscription and distribution. It raises practical questions: the role of the registrar, identification of successive holders, custody of the tokens, compatibility of transfers with the fund’s marketing rules.

The reverse risk also exists. A project that raises money from several investors to buy assets together, in accordance with a defined investment policy and for their common benefit, is an alternative investment fund (AIF), even if it does not present itself as one. It then needs an authorised management company.

Real estate

Under French law, the sale of a building requires a notarial deed and land registration (publicité foncière): transferring a token does not transfer ownership of a building. Tokenisation therefore concerns a vehicle or a security:

• shares in a société par actions (a French joint-stock company) that holds the property;
• bonds backed by the property or by its rental income;
• units of a real estate fund, managed by a management company.

Each route has its own offering regime and costs. An offer of rights over a property, combined with a promised return and management on behalf of the purchasers, may also fall under intermediation in miscellaneous assets. The feasibility study compares these routes in light of the number of investors targeted, the amount raised and the liquidity sought.

Gold, commodities and receivables

A token that aims to maintain a stable value by referencing gold or a basket of commodities is an asset-referenced token (ART) within the meaning of MiCA. Its issuer must be authorised, hold a reserve of assets and have its white paper approved. The firm advises stablecoin issuers, ARTs included. If the token instead confers a debt claim indexed to a price, it is a financial security. If it represents ownership of a physical stock held for holders, intermediation in miscellaneous assets comes into play.

Tokenising receivables, such as invoices or loans, raises two preliminary questions:

• acquiring receivables on a regular basis may fall within the French banking monopoly on credit operations;
• selling fractions of a portfolio of receivables requires debt securities or a securitisation, which MiCA excludes from its scope.

In every case, a platform that receives investors’ funds to pass them on to a third party may be providing a payment service. ORWL Avocats also handles this classification under payment services law and, where needed, arranges for an authorised provider to step in.

Can a secondary market for the tokens be organised?

Liquidity is often the very reason for the project. It is also where the law weighs most. Bringing together, on a platform, buying and selling interests in tokens that are financial securities amounts to operating a multilateral trading facility (MTF). That activity is reserved to authorised investment firms and market operators.

Several limits follow:

• authorisation as a crypto-asset service provider (CASP) does not cover trading in financial securities;
• reception and transmission of orders, advice or placing of security tokens are investment services;
• an issuer that buys back its own securities must frame those buybacks so as not to run a market without the required status.

The project therefore has three options: forgo an organised market, rely on an authorised provider, or use the DLT Pilot Regime.

The DLT Pilot Regime: a framework still narrow

The European pilot regime has applied since 23 March 2023. It allows market infrastructures based on distributed ledger technology to be operated: a multilateral trading facility, a settlement system, or a system that combines both. In return, it grants targeted exemptions from financial market rules.

Its conditions limit its reach:

• it is reserved to investment firms, market operators and central securities depositories;
• it covers only certain financial instruments, subject to size caps;
• each infrastructure receives a specific permission from its national authority.

Few infrastructures use it. On 4 December 2025, the European Commission proposed extending it to all financial instruments, opening it to CASPs that operate a trading platform and creating a simplified regime for smaller infrastructures. The text is still going through the legislative process. For a project sponsor, the pilot regime usually means partnering with a permitted infrastructure rather than applying in its own right.

Our method

Every engagement begins with a feasibility study. It starts from a questionnaire and a scoping meeting, analyses the model against each regime, then leads to a draft report discussed with the client before its final version. The project then knows what it can do, under which status and at what regulatory cost.

The firm handles the regulatory and contractual side of the project and supports it before the regulators. It works with the technical and financial providers chosen by the client (registrar, custodian, investment firm, management company), each of which keeps its own role.

Where the project funds its platform through a separate token, the firm also handles its classification and its MiCA white paper. ORWL Avocats also advises on the taxation of the issuance, of the company and of investors, VAT included, through its Tax practice.

Why work with ORWL Avocats?

Since 2018, the firm has advised tokenisation project sponsors, investment platforms, token issuers and financial institutions bringing their products onto the blockchain, before the AMF and the ACPR. Its partners author the LexisNexis handbook Droit des crypto-actifs et de la blockchain (crypto-asset and blockchain law), which devotes a chapter to tokenised financial markets. The practice is ranked in Chambers FinTech and recognised by Leaders League.

A lawyer brings to the project what a consultant cannot: the legal classification of each token and each flow of funds, legal professional privilege over the model and client communications, and professional liability for the advice given. The lawyer drafts the offering documentation and deals with the regulators on the client’s behalf.

A partner leads every matter, from the feasibility study through to issuance.