regulation

Subscribe to regulation via RSS

A new Executive Order could help open the door for the portability of consumer financial data.

By Charles Weinstein and Deric Behar

Definitive regulation for open banking may be on the horizon in the US. On July 9, 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy (the Order), which contains a section on banking and consumer finance that encourages the Consumer Financial Protection Bureau (CFPB) to issue rules on consumer financial data portability.

The Order’s request to the CFPB could help foster competition and reduce market concentration among banking institutions by simplifying personal data portability for consumers and making open banking functionality more readily available.

MAS confirms regulatory approach for derivative contracts on payment tokens.

By Farhana Sharmeen and Marc Jia Renn Tan

On 15 May 2020, the Monetary Authority of Singapore (the MAS) issued its response to feedback about its proposed regulatory approach for derivative contracts that reference payment tokens as underlying assets (Payment Token Derivatives), confirming that it will regulate Payment Token Derivatives offered to Singapore investors through approved exchanges. (See MAS’ current list of approved exchanges.) The MAS considers it crucial that it has effective oversight of products offered on approved exchanges due to the systemic importance of such trading facilities and the risk of contagion to the wider financial system.

The report encourages the G20 to consider a broad set of supervisory principles when evaluating global stablecoin arrangements.

By Todd Beauchamp, Stuart Davis, Christian F. McDermott, Yvette D. Valdez, Stephen P. Wink, Simon Hawkins, and Deric Behar

On April 14, 2020, the G20’s Financial Stability Board (FSB) published a consultation on the regulation, supervision, and oversight of privately issued global stablecoins (Addressing the Regulatory, Supervisory and Oversight Challenges Raised by “Global Stablecoin” Arrangements). The consultation includes 10 high-level recommendations that promote a multilateral approach to oversight defined by flexibility, consistency, coordination, and information-sharing between jurisdictions to keep apace of the changing nature of the risks posed by global stablecoins. While acknowledging the potential financial service benefits of global stablecoins, the FSB highlights some of the downstream impacts global stablecoins may have on national economies, across borders, and on the global financial system.

The landmark authorization signals the Mexican government will likely grant similar licenses to more FinTech companies in the coming months.

By Yvette Valdez, Roderick Branch, and Daniel Gallo Mainero*

Nearly two years after the Mexican government enacted its Financial Technology Institutions Law (FinTech Law), the Mexican National Banking and Securities Commission (CNBV) issued its first license on January 22, 2020. The license authorizes NVIO Pagos México, an affiliate of Bitso, a cryptocurrency market, to operate as a financial technology institution under the new law. This landmark authorization signals that the government will likely grant similar licenses to more FinTech companies in the coming months. At least 85 entities have filed license applications with the CNBV, creating more opportunities for investors to leverage the potential of Mexico’s FinTech market within a regulated environment.

Mexico became the first Latin American country to put specific and comprehensive regulation of the financial technology sector in place when it enacted its FinTech Law in March 2018, prompting a positive reaction among investors and FinTech companies with established business models. As with new regulation in any industry, however, certain participants — specifically the majority of FinTech startups — raised questions about how the government would approach implementation and enforcement.

Latham derivatives and FinTech partner Yvette Valdez explores regulatory issues impacting cryptocurrency derivatives on the Fintech Beat podcast.

By Yvette D. Valdez

New York partner Yvette Valdez, a member of Latham & Watkins’ FinTech Industry Group, recently discussed timely issues at the intersection of cryptoassets and derivatives law on a new episode of Fintech Beat.

Valdez spoke with host Chris Brummer about a number of regulatory issues impacting cryptocurrency derivatives, including:

  • Whether cryptocurrencies or stablecoins are inherently derivatives
  • The ramifications of being deemed a derivative
  • Cryptocurrency derivatives and tokenized derivatives
  • Considerations for token developers to better navigate the regulatory field
  • The potential pitfalls of the Simple Agreement for Future Tokens (SAFT) from a commodities regulatory point of view
  • The Automated Convertible Note, a free-to-use tool developed by Latham & Watkins in collaboration with ConsenSys and OpenLaw, which addresses future token sales in a manner compliant with US securities and commodities regulations

New regulatory requirements, including registration and customer disclosure requirements, apply to regulated and unregulated persons carrying on relevant cryptoasset business.

By Stuart Davis and Sam Maxson

On 20 December 2019, the UK government published the Money Laundering and Terrorist Financing Regulations (Amendment) Regulations 2019 (the Amending Regulations). The Amending Regulations update the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the MLRs) to meet the UK’s obligation to transpose Directive (EU) 2018/843 (5MLD) into UK law. A key element of the Amending Regulations is that they bring Cryptoasset Exchange Providers (CEP) and Custodian Wallet Providers (CWP) — including persons making an initial coin offering (ICO) — within the scope of UK money laundering regulations. Therefore, from 10 January 2020 CEPs and CWPs are required to comply with the requirements of the MLRs (subject to limited transitional provisions for existing cryptoasset businesses relating to registration with the FCA). Significantly, the Amending Regulations will impact any UK person conducting cryptoasset business of a kind that is captured by the new definitions of CEPs and CWPs (including, for example, existing UK authorised financial services firms that carry on cryptoasset business which will be subject to new requirements relating specifically to cryptoasset business).

HM Treasury consulted on its proposed changes in April 2019 in its paper Transposition of the Fifth Money Laundering Directive: Consultation (the Consultation Paper). As the UK has not yet formally withdrawn from the EU, its approach to implementing the changes introduced by 5MLD is not impacted by Brexit and it is anticipated that the UK will continue to apply EU financial regulatory standards (including anti-money laundering (AML) requirements) immediately post-Brexit through “onshored” legislation.

It was a year filled with tantalizing tidbits and many loose ends.

By Stephen P. Wink, Cameron R. Kates, Shaun Musuka, and Deric Behar

2019 marked the 10th year since blockchain technology was released into the wild by its still unknown inventor, Satoshi Nakamoto, who mined the first bitcoin block in January 2009. In the intervening decade, blockchain technology has catalysed widespread innovation, some of which has garnered the attention (and consternation) of US regulators. One topic in particular has spawned spirited debate: How should token-based economic activity, especially within the sphere of capital raising and value exchange, be treated under existing US regulatory infrastructure?

While US regulators did not provide any specific answers in 2019, the year was notable for providing the crypto space with additional pieces of the burgeoning regulatory puzzle in the form of agency guidance, enforcement actions, no-action letters, and highly publicized governmental concerns regarding private global stablecoins.

UK Treasury Committee report warns that the current level and frequency of disruption and consumer harm is unacceptable.

By Carl Simon Fernandes, Nicola Higgs, Fiona M. Maclean, Christian F. McDermott, Rob Moulton, Andrew C. Moyle, Stuart Davis, and Charlotte Collins

On 28 October 2019, the Treasury Committee published a report on IT failures in the financial services sector. The report sets out the findings from the Treasury Committee’s inquiry, which was launched following a number of high-profile and significant IT incidents. (See Senior MP Calls for Regulatory Crackdown on Banks’ IT Systems: 3 Things You Can do to Prepare.) Rather than looking into specific failures, the inquiry looked more holistically at why such incidents are becoming more frequent, how firms should be guarding against and responding to these incidents, and the role of the regulators in preventing and mitigating the impact of these incidents through their rules.

The report looks at various different aspects of the issues surrounding IT failures, including the nature of IT incidents and their common causes, the role of the regulators, and emerging risks to operational resilience.

Global monetary authorities and financial regulators have responded forcefully to the advent of privately developed global stablecoins.

By Todd Beauchamp, David L. Concannon, Stephen P. Wink, Simon Hawkins, Stuart Davis, and Deric Behar

A new report highlights the risks of global stablecoins and enumerates the legal, regulatory, and oversight hurdles a global stablecoin must clear before launching. The Group of Seven Working Group on Stablecoins released the report, titled Investigating the Impact of Global Stablecoins (G7 Report), at the October 2019 International Monetary Fund annual meeting. The G7 Report was published in tandem with a report by the Financial Stability Board (FSB) on the Regulatory Issues of Stablecoins (FSB Report). Taken together, the two reports provide insight into how some of the world’s most advanced economies (the US, the UK, Canada, France, Germany, Italy, and Japan) view digital assets and stablecoins, particularly those with the potential to launch and quickly scale on an established private-sector global network.

Latham & Watkins lawyers provide an in-depth look at the regulation of cryptoasset trading platforms in key jurisdictions.

By Todd Beauchamp, Nozomi Oda, Yvette D. Valdez, Stephen P. Wink, and Simon Hawkins

Cryptoasset trading is a fast-growing part of the financial sector. Some countries have wholeheartedly embraced cryptoassets; others have been more reticent to permit widespread adoption. Generally, countries either interpreted existing laws and regulations to apply to cryptoassets, adopted new laws or regulations to specifically…