Clifford Chance

Welcome to this week's global fintech round-up, summarising fintech regulatory developments that have happened around the world along with our Clifford Chance fintech publications and upcoming events.

Details of these and previous developments can also be found on our Fintech Topic Guide on the Clifford Chance Financial Markets Toolkit.

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CLIFFORD CHANCE PUBLICATIONS AND MATERIALS

Talking Tech article – Key announcements from the Singapore Fintech Festival 2021

Clifford Chance briefing – Data centres and the UK National Security and Investment Act 2021

SPOTLIGHT

In case you missed the live session last month, you can now watch Clifford Chance partner, Simon Gleeson's masterclass on "Legal aspects of Retail CBDCs" as part of the Global Central Bank Digital Currency (CBDC) Challenge. The way in which CBDCs can be used is largely determined by legal rules regarding the provision of money and payment services.

This session examines the existing structures for banking and money services, illustrates the way in which existing laws and regulations require these to be provided, considers the ways in which CBDCs may be provided in substitution for or as a supplement to these services, and considers the use cases for CBDCs themselves, with particular regard to the extent to which CBDCs may be a straightforward substitute for money in everyday transactions.

GLOBAL LEGAL AND REGULATORY UPDATES

International

• (22 Nov 2021) International Monetary Fund (IMF) statement following its official staff visit to El Salvador. The IMF states that Bitcoin should not be used as legal tender and that El Salvador should narrow the scope of its Bitcoin Law and introduce stronger regulations around capital requirements, ring-fencing reserve assets, and anti-money laundering and counter terrorism financing.
• (18 Nov 2021) The Financial Stability Board (FSB) has published a summary of the topics discussed at its recent plenary meeting. The meeting covered the FSB's work programme for 2022 which included mitigating the risks and capitalising on the benefits posed by unbacked cryptoassets, stablecoins and decentralised finance. | Press release

Americas

Argentina:

• (16 Nov 2021) Presidential Decree 796/2021 (in Spanish), which introduces a tax levy on exchanges that offer cryptoasset services.

US:  

• (23 Nov 2021) Joint statement from the Board of Governors of the Federal Reserve System (FRS), the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) on the work of their cryptoasset 'policy sprint' team. During 2021, the team conducted preliminary analysis on various policy issues relating to cryptoasset custody, sale, loans and payment activities. In 2022, the agencies intend to publish guidance based on their findings, which will seek to provide greater clarity on their stance on stablecoins, crypto-collateralised lending, buying, selling and holding cryptoassets for clients, and activities that might lead banks to put cryptoassets on their books.
• (23 Nov 2021) OCC interpretive letter stating that national banks and federal savings associations must demonstrate to their supervisory offices that they have adequate controls in place before they can engage in certain cryptocurrency, distributed ledger, and stablecoin activities. | Press release
• (23 Nov 2021) The Chair of the Senate Committee on Banking, Housing and Urban Affairs, Sherrod Brown, has written to several stablecoin issuers and exchanges to request information on the steps they take to protect consumers and investors, in light of the risks highlighted by the recent report published by the President's Working Group on Financial Markets. | Press release
• (18 Nov 2021) Final rule published by the FRS, FDIC and OCC which requires banking organisations to notify their primary federal regulator of any significant cybersecurity incident within 36 hours of it being identified, and to notify their customers as soon as possible if the incident has materially affected, or is likely to materially affect, customers for four or more hours. | Press release

APAC

Australia:     

• (23 Nov 2021) Speech by the Commissioner of the Australian Tax Office (ATO), Chris Jordan, on new challenges in tax administration, in which he states that the ATO cannot rely on investors to effectively record and disclose their cryptoasset gains. The ATO is investigating ways to improve reporting, such as pre-filling data on tax returns.
• (22 Nov 2021) Speech by the Chair of the Australian Securities and Investments Commission (ASIC), Joe Longo. Longo notes that ASIC is working with lawmakers to develop regulations for cryptoassets but that for now they are not deemed to be 'financial products' and therefore investors should view them with caution.
• (19 Nov 2021) Treasury consultation on draft legislation intended to improve the technology neutrality of the Treasury's portfolio laws. The proposals include amendments to support electronic payments and electronic signing of documents. Responses are due by 10 December 2021.

India:             

• (23 Nov 2021) Bulletin setting out the schedule of parliamentary business for the Winter session. The schedule includes the Cryptocurrency and Regulation of Official Digital Currency Bill, which is described as introducing a framework for the creation of a central bank digital currency (CBDC) managed by the Reserve Bank of India (RBI), and a ban on all private cryptocurrencies.
• (18 Nov 2021) RBI consultation on a draft report on digital lending. The report sets out proposed recommendations to improve consumer protection, transparency, data management, and governance of digital lending platforms. Responses are due by 31 December 2021. | Press release

Kazakhstan:

• (19 Nov 2021) President Kassym-Zhomart Tokayev has held a meeting with representatives from the financial sector, in which he discussed the current state of the country's cryptoasset sector. Tokayev notes that, despite the high volume of cryptoasset mining conducted in Kazakhstan, the country does not see much financial return. He calls for further work on the development of a regulatory regime for crypto-exchanges and consideration of the need to introduce a CBDC (the digital tenge). | Press release (in Russian)

Republic of Korea:    

• (23 Nov 2021) Financial Services Commission (FSC) statement (in Korean) clarifying its position on the taxation of non-fungible tokens (NFTs) following media reports that the FSC had confirmed NFTs would be taxed under planned tax rules for virtual asset gains due to commence on 1 January 2022. The FSC states that NFTs may be taxed if they are deemed to be a virtual asset, particularly if used as a means of payment or investment, but that the generalisation that all NFTs will be taxed is incorrect.

Singapore:   

• (9 Nov 2021) Following the conclusion of the Singapore Fintech Festival, the Monetary Authority of Singapore has announced a number of fintech-related initiatives, including:
  • the pilot of four digital platforms to address the financial sector's need for reliable data on sustainability, including a portal to simplify the ESG disclosure process, an ESG data aggregator to facilitate more effective data analytics in order to support investment and financing decisions, a registry for ESG certifications, and a marketplace to connect green technology providers with the financial sector. | Press release
  • the upcoming launch of a decentralised platform called ChekFin, which will provide financial institutions with verified credentials of fintech firms with the intention of supporting partnerships between them. | Announcement
  • the launch, in collaboration with the Smart Nation and Digital Government Group (SNDGG), of the second phase of the Singapore Financial Data Exchange (SGFinDex) initiative, under which individuals will be able to view information on their investment holdings at a central depository. The next phase will focus on sharing insurance policies. | Press release

Thailand:      

• (22 Nov 2021) Securities and Exchange Commission (SEC) consultation (in Thai) on draft proposals regarding privacy coins. The SEC defines privacy coins as any digital assets that either conceal information of the transferor, transferee and transfer volume, or give the holder the right to conceal that information. The proposals seek to prohibit digital asset service providers from offering services relating to privacy coins. Responses are due by 21 December 2021. | Press release (in Thai)

Europe

EU:  

• (25 Nov 2021) The EU Parliament and Council have reached a political agreement on the EU Commission's proposed regulation on a pilot regime for market infrastructures based on distributed ledger technology. | Press release
• (24 Nov 2021) The Council has adopted its negotiating mandate on the proposal for a regulation on markets in cryptoassets (MiCA) and the proposed Digital Operational Resilience Act (DORA), which are part of the EU Commission's digital finance package. The Council and the EU Parliament will now begin trilogue negotiations on these proposals. Once a provisional political agreement is found between their negotiators, both institutions will formally adopt the regulations. | Press release
• (23 Nov 2021) Speech by European Central Bank (ECB) Executive Board Member, Fabio Panetta, on the benefits of an EU CBDC as a monetary anchor for the digital age and the conditions required to support it. | Related blog post
• (23 Nov 2021) Speech by Fabio Panetta on the design of the digital euro and how the ECB intends to make it attractive to consumers.
• (23 Nov 2021) The Internal Market and Consumer Protection Committee of the EU Parliament has adopted its position on the EU Commission's proposed Digital Markets Act (DMA). The proposed amendments will be voted on in a Parliament plenary session in December 2021. | Press release
• (22 Nov 2021) EU Parliament briefing on stablecoins, including potential concerns and benefits and recent EU and international developments.
• (22 Nov 2021) ECB oversight framework for electronic payment instruments, schemes and arrangements (PISA). The PISA framework provides an approach for assessing the security and efficiency of electronic payments, including electronic wallets and cryptoasset-related services. Companies are expected to comply with the framework by 15 November 2022. | Press release
• (19 Nov 2021) European Securities and Markets Authority (ESMA) updated Q&As on crowdfunding. ESMA has added material to clarify certain provisions of the EU Crowdfunding Regulation, including the perimeter of prohibitions under Article 21(6), the responsibilities for the key investment information sheet, and the application of the transitional period.

Finland:        

• (24 Nov 2021) Financial Supervisory Authority statement reminding marketers and consumers that only companies registered under the Act on Virtual Currency Providers are permitted to market virtual currencies and related services in Finland and to Finns.

Germany:              

• (24 Nov 2021) Coalition agreement (in German) agreed by the new Government (a coalition between the Social Democrats (SPD), the Green Party, and the Free Democrats (FDP)). The deal calls for, among other things, an equal playing field between traditional finance and innovative business models; holistic and risk-adequate EU supervision for the crypto-sector; and appropriate measures to address the potential money laundering and terrorism financing risks posed by cryptoassets.

Italy:              

• (15 Nov 2021) Regulation (in Italian) establishing a regulatory sandbox for the testing of insurtech services and products, run by the Instituto per la Vigilanza sulle Assicurazioni (IVASS).

Russia:          

• (5 Nov 2021) Bank of Russia report (in Russian) on financial stability, which includes estimates of the size and volume of crypto-related activities in the country. The Bank estimates that the total annual value of cryptoasset transactions is RUB 350 billion (USD 5 billion) and notes that Russia is the third-largest miner of Bitcoin, according to the Cambridge Bitcoin Electricity Consumption Index.

Sweden:       

• (5 Nov 2021) Joint statement from the Financial Supervisory Authority and the Environmental Protection Agency calling for the banning of crypto-mining activity using the proof of work method. The statement recommends that the EU considers an EU-level ban on proof of work mining and that, in the meantime, Sweden introduces measures to halt crypto-mining and to prevent companies that use the proof of work method from marketing themselves or their activities as 'sustainable'.

UK:

• (25 Nov 2021) Law Commission advice to the Government following its consultation on the definition, formation and interpretation of smart contracts and the extent to which the existing legal framework can accommodate them. The Law Commission concludes that the current legal framework in England and Wales is able to facilitate and support the use of smart legal contracts, and that there is no need for statutory law reform. | Initiative webpage
• (24 Nov 2021) Law Commission interim report on its digital assets project. The report provides a summary of some of the key themes arising from responses to the Law Commission's call for evidence on issues arising from the application of the law of England and Wales to digital assets, in particular around the question of their 'possessability'. | Project webpage
• (22 Nov 2021) Speech by Carolyn Wilkins, an external member of the Bank of England's Financial Policy Committee, on cryptoassets and decentralised finance (DeFi). Among other things, Wilkins calls cryptoassets the 'bedrock of the emerging financial ecosystem' and emphasises the need to modernise the traditional financial system and legal and regulatory frameworks to ensure the promise of cryptoassets, including stablecoins, and DeFi is effectively realised.

CLIFFORD CHANCE EVENTS

Asia Funds Conference 2021 (2 December 2021):

Clifford Chance's APAC Funds and Investment Management team will be hosting its annual Asia Funds Conference under the theme of 'Reimagination'. Shifting geo-political landscapes, a rapidly developing regulatory environment, digitalisation and ESG are prompting asset managers around the world to actively rethink and reimagine their business and investment models. Our conference will bring together experienced legal practitioners and industry experts from around the world for a series of insight-driven conversations closely relevant to the asset management industry, with the goal of tracking trends, discussing challenges and opportunities, and most importantly bringing new ideas and perspectives to our clients as the industry undergoes a period of massive transformation. | For more information and to register, please see the event page

Artificial intelligence – can we go from chaos to cooperation? (7 December 2021):

AI is predicted to generate USD 13 trillion in economic activity by 2030, but there is little international agreement on what constitutes AI and even less on how to regulate this transformative — and potentially dangerous — form of technology. Clifford Chance and the American Enterprise Institute (AEI) are pleased to invite you to this virtual event in which panellists from Clifford Chance, AEI, the University of Oxford and NATO will consider the prospects of an AI arms race and the opportunities for international cooperation. | For more information and to register, please see the event page.

The digital securities ecosystem – opportunities and challenges ahead (8 December 2021):

Clifford Chance invites you to join our panel of experts for an exploration of developments in the digital securities space. In this virtual session we will be looking at the ecosystem supporting digital assets, including the issuance process, settlement and custody, and discussing the realistic evolution of this space, including the opportunities and challenges for tokenisation and native securities. | To register, please see the event registration form

Warsaw Perspectives Series: Central bank digital currencies and stablecoins – is a revolution in financial markets and payment services approaching? (15 December 2021):

New CBDC solutions are being implemented by central banks, governments and international organisations, and the private sector is developing various types of digital payment instrument as an alternative to fiat currency. Join Clifford Chance Partner, Andrzej Stosio, for a seminar on the fundamental impact these developments may have on global and local financial markets and the legal, regulatory and economic challenges they pose. Please note this seminar will be held in Polish. | For more information and to register, please see the event page.

Additional Information

This publication does not necessarily deal with every important topic nor cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. Clifford Chance is not responsible for third party content. Please note that English language translations may not be available for some content. 

Any content above relating to the People's Republic of China (PRC) is based on our experience as international counsel representing clients in business activities in the PRC and should not be construed as constituting a legal opinion on the application of PRC law. As is the case for all international law firms with offices in the PRC, whilst we are authorised to provide information concerning the effect of the Chinese legal environment, we are not permitted to engage in Chinese legal affairs. Our employees who have PRC legal professional qualification certificates are currently not PRC practising lawyers.