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.

CLIFFORD CHANCE BRIEFINGS AND MATERIALS

• (18 Jan 2023) Talking Tech article – ACCC digital platform services inquiry: implications from the latest interim report for digital platform service providers operating in Australia

SPOTLIGHT

GLOBAL LEGAL AND REGULATORY UPDATES, INDUSTRY GUIDANCE AND PUBLICATIONS

Africa and the Middle East

Saudi Arabia:              

• (23 Jan 2023) The Saudi Central Bank (SAMA) has announced that it is continuing to experiment on a central bank digital currency (CBDC) and that it is currently working on a phase of a project that focuses on domestic wholesale CBDC use cases in collaboration with local banks and fintechs, although it has also stressed that no decision has been made regarding the introduction of a CBDC in the Kingdom. | Press release

South Africa:

• (23 Jan 2023) Advertising Regulatory Board Code of Advertising Practice, which has been updated to include a new section on cryptoassets. The Code requires advertisements to state expressly and clearly that investing in cryptoassets may result in the loss of capital as the value is variable and can go up as well as down. The Code also includes special requirements for situations where influencers or ambassadors are used to promote a cryptoasset product or service.

Americas

US:  

• (20 Jan 2023) Speech by Securities and Exchange Commission (SEC) Commissioner Hester Peirce, in which she proposed a number of lessons to be learnt from the events of 2022 by people within the crypto industry and those who regulate it. These lessons include that those involved in crypto should not wait for regulators to fix the problems that surfaced in 2022, and that crypto is primarily about offering new solutions to the problem of how you can interact and transact safely with people you do not know, a problem which has traditionally been left to centralised intermediaries or government to solve. Peirce also emphasised that each cryptoasset, blockchain, and project needs to be assessed on its own merits, that problems in the design of a protocol or at a centralised infrastructure provider can have sweeping, disastrous consequences, and that although crypto enables reduced reliance on centralised intermediaries, as long as companies are actively involved in crypto, people should take the same precautions as they would when dealing with any other company.
• (18 Jan 2023) The Digital Dollar Project (DDP) has issued an updated version of its white paper 'Exploring a US CBDC', offering a global perspective on developments in CBDCs. The white paper discusses ongoing CBDC projects in 114 countries, including DDP-initiated pilots and research, and revisits the concepts first proposed in the DDP's May 2020 inaugural white paper. It includes recommendations to the US Government and private sector and also looks ahead to the next stage in CBDC developments.

Europe

EU:  

• (24 Jan 2023) The EU Parliament's Committee on Economic and Monetary Affairs (ECON) has adopted its position on changes to the Capital Requirements Regulation and the Capital Requirements Directive, which are intended to complete the EU's implementation of Basel III.  Amongst other things, the Committee members want banks to disclose their exposure to cryptoassets and cryptoassets services and to provide a specific description of their risk management policies related to cryptoassets. The changes still need to be approved by the Parliament's plenary and the EU Council before they can enter into force. The ECON Committee has also called on the EU Commission to submit a legislative proposal on a dedicated prudential treatment for exposures to cryptoassets by June 2023. | Press release
• (23 Jan 2023) The ECON Committee has held an exchange of views with Fabio Panetta, member of the European Central Bank (ECB) Executive Board and Chair of the Task Force on Central Bank Digital Currency, who informed ECON Members about the progress made regarding the digital euro. In his opening statement, Panetta told the Committee that the digital euro would never be programmable money and that the ECB would not set any limitations on where, when or to whom people can pay with a digital euro. | Video recording of the meeting, with Panetta's comments starting at 15:38:50
• (16 Jan 2023) EU Parliament Committee on Budgets draft report on the European Union's own resources, 'a new start for EU finances, a new start for Europe', which suggests the introduction of a European tax on cryptoassets, the revenues of which would flow into the European budget as a new own resource. The draft report notes that several taxation options are conceivable for cryptoassets, such as a tax on capital gains resulting from cryptoasset activities (based on a uniform levy rate for all EU Member States), a tax on cryptoasset transactions or a tax on the mining and trading of cryptoassets determined according to their electricity consumption and environmental impact.

France:          

• (23 Jan 2023) The French data protection authority CNIL has announced the creation of an artificial intelligence (AI) unit to strengthen its expertise in this area and its understanding of the risks to privacy while preparing for the entry into application of the European regulation on AI. In addition, the new unit will propose initial recommendations on the subject of training databases in the coming weeks.| Press release (in French)
• (17 Jan 2023) Speech by Denis Beau, First Deputy Governor of the Bank of France, on the opportunities and challenges of the tokenisation of finance.

Netherlands:

• (16 Jan 2023) The Dutch data protection authority Autoriteit Persoonsgegevens (AP) has announced the approval of algorithm supervision activities and the creation of a new Algorithms Coordination Directorate. The AP's existing supervision of algorithms and artificial intelligence (AI) will remain intact, but the Directorate will enable the supervision of the specific risks and effects of algorithms. In addition, the AP has indicated that there will be increased supervision of algorithms in 2023, through the Directorate, including collecting, analysing, and sharing knowledge about the risks and effects of algorithm uses, strengthening and facilitating existing collaboration in algorithm supervision, and promoting cross-sectoral interpretation of standards and guidance. | Press release (in Dutch)

UK:

• (24 Jan 2023) Speech by Jessica Rusu, the Financial Conduct Authority (FCA)'s Chief Data, Information and Intelligence Officer, at the Alan Turing Institute's Framework for Responsible Adoption of Artificial Intelligence in the Financial Services Industry (FAIR) event. Amongst other things, Rusu announced that following its call for input on synthetic data in March 2022, the FCA will shortly be publishing its feedback statement, which will outline the key responses received, including the potential for synthetic data to combat fraud and money laundering, and provide the FCA's thoughts around the potential role of a regulator in the space, including the need for guidance to build trust and promote responsible adoption of this technology.
• (23 Jan 2023) Regulatory Policy Committee (RPC) opinion on the Financial Conduct Authority (FCA)'s prohibition of the sale to retail clients of investment products that reference cryptoassets. The measure, implemented in 2021, prohibits the sale, marketing, and distribution of derivatives and exchange-traded notes that reference particular types of unregulated, transferable cryptoassets to all retail clients by firms in or from the UK. The RPC has concluded that the FCA measure is 'not fit for purpose', noting that the business impact target assessment had not included sufficient evidence to support the assumptions made, or adequately explained the approach to the cost benefit analysis undertaken to produce the equivalent annual net direct cost to business seeking validation. The assessment had also failed to clearly establish what would happen to the market in the absence of the intervention, limiting the ability to determine the change resulting from the measure.
• (20 Jan 2023) House of Commons Library research briefing on the regulation of cryptocurrency, published ahead of a Westminster Hall debate on 25 January 2023.