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

• (11 Sep 2023) Reuters webinar recording – Instant Payment Acceleration: Reaping the Cash Flow Benefits for European Merchants, with expert insights from Marian Scheele, Head of the Amsterdam Fintech Group at Clifford Chance, alongside payments experts at Citi, HSBC, and Bottomline Technologies.
• (11 Sep 2023) Talking Tech article – German Data Protection Authorities comment on new EU-U.S. Data Privacy Framework

SPOTLIGHT

Spotlight: Clifford Chance Advises BIS Innovation Hub on Project Sela

We are delighted to have advised the Bank for International Settlements (BIS) Innovation Hub on Project Sela, a pioneering initiative in the realm of central bank digital currency (CBDC) architecture to assess the feasibility of reducing financial exposure for retail CBDC intermediaries, potentially paving the way for a more accessible CBDC system that remains cyber secure. Conducted jointly with the Bank of Israel and the Hong Kong Monetary Authority, Project Sela focused on the development and evaluation of a two-tier retail CBDC architecture, designed to distribute CBDCs through traditional financial services firms and a new type of payment services provider called an Access Enabler whose key characteristic is that they do not hold client funds at any time.

Press Release / Report

GLOBAL LEGAL AND REGULATORY UPDATES, INDUSTRY GUIDANCE AND PUBLICATIONS

GLOBAL LEGAL AND REGULATORY UPDATES, INDUSTRY GUIDANCE AND PUBLICATIONS

International

• (12 Sep 2023) Bank for International Settlements (BIS) Innovation Hub report on Project Sela, a joint experiment by the BIS Innovation Hub, Bank of Israel and Hong Kong Monetary Authority exploring how to create a retail CBDC that is cyber secure and retains desirable features of cash. Clifford Chance provided the legal analysis for Project Sela. Press release | Project Sela webpage
• (10 Sep 2023) G20 Leaders’ Declaration following their Summit in New Delhi on 9 and 10 September. Amongst other things, the Leaders (i) endorse, and request the effective and timely implementation of, the Financial Stability Board (FSB)’s recommendations for the regulation, supervision and oversight of cryptoasset activities and markets and of global stablecoin arrangements; (ii) welcome discussions on the potential macro-financial implications arising from the introduction and adoption of CBDCs; and (iii) welcome the FSB's recommendations to achieve greater convergence in cyber incident reporting and work on enhancing third-party risk management and oversight.
• (8 Sep 2023) United Nations Commission on International Trade Law (UNCITRAL) Taxonomy of legal issues related to the digital economy
• (7 Sep 2023) FSB - International Monetary Fund (IMF) synthesis paper on policies for cryptoassets, which brings together risks and policy findings from IMF work on macroeconomic and monetary issues and FSB work on financial stability risks related to cryptoassets. The report finds that a comprehensive policy and regulatory response for cryptoassets is necessary to address the risks of cryptoassets to macroeconomic and financial stability. | Press release
• (7 Feb 2023) International Organization of Securities Commissions (IOSCO) consultation report setting out nine policy recommendations to address market integrity and investor protection concerns arising from Decentralised Finance (DeFi). The recommendations cover six key areas: (i) understanding DeFi arrangements and structures; (ii) achieving common standards of regulatory outcomes; (iii) identification and management of key risks; (iv) clear, accurate and comprehensive disclosures; (v) enforcement of applicable laws; and (vi) cross-border cooperation. Deadline for comments: 19 October 2023. | Press release
• (7 Sep 2023) BIS Bulletin on the ‘oracle problem’ and the future of DeFi | Webpage

Americas

US:  

• (12 Sep 2023) Testimony of Securities and Exchange Commission (SEC) Chair Gary Gensler before the United States Senate Committee on Banking, Housing, and Urban Affairs. Amongst other things, Gensler discussed artificial intelligence and predictive data analytics, crypto, and cyber risk disclosure. | Committee hearing webpage including video
• (11 Sep 2023) Speech by Commodity Futures Trading Commission (CFTC) Commissioner Christy Goldsmith Romero on modernising investor protection for the digital age
• (8 Sep 2023) Speech by Federal Reserve Vice Chair, Michael S. Barr, on the Federal Reserve’s role in supporting responsible innovation. Barr discussed the Federal Reserve's CBDC research program, but also stressed that it has made no decision on issuing a CBDC and would only proceed with the issuance of a CBDC with clear support from the executive branch and authorising legislation from Congress.
• (7 Sep 2023) The CFTC has issued orders simultaneously filing and settling charges against Opyn, Inc., ZeroEx, Inc., and Deridex, Inc. Deridex and Opyn are charged with failing to register as a swap execution facility (SEF) or designated contract market (DCM), failing to register as a futures commission merchant (FCM), and failing to adopt a customer identification program as part of a Bank Secrecy Act compliance program, as required of FCMs.  ZeroEx, Opyn and Deridex are also charged with illegally offering leveraged and margined retail commodity transactions in digital assets. The CFTC found that the respondents engaged in these activities in connection with blockchain-based software protocols and smart contracts that functioned similarly to trading platforms, and which purported to offer users the ability to engage in transactions in a decentralised environment. | Press release
• (7 Sep 2023) Speech by CFTC Commissioner Caroline D. Pham, in which she recommended a time-limited CFTC pilot program to support the development of compliant digital asset markets and tokenisation. 
• (6 Sep 2023) Financial Accounting Standards Board (FASB) tentative decision regarding accounting for and disclosure of cryptoassets. The Accounting Standards Update requires that an entity measure certain cryptoassets at fair value in the statement of financial position each reporting period and recognise changes in fair value in net income. The Board decided that the final update should be effective for fiscal years beginning after 15 December 2024, including interim periods within those fiscal years. | Board meeting handout

APAC

Singapore:   

• (25 Aug 2023) Singapore and Indian banks and companies have carried out the first live transaction for a shipment using the Trade Trust framework, which enables interoperable electronic Bills of Lading backed Letter of Credit transactions. According to Singapore's Infocomm Media Development Authority (IMDA), this is the first shipment to undergo a fully paperless transaction process involving traders, shippers, and banks. | Press release

Europe

UK:

• (12 Sep 2023) Financial Conduct Authority (FCA) policy statement (PS23/13) on the new regulatory gateway for authorised firms to approve financial promotions, including cryptoasset financial promotions, for an unauthorised person. The gateway was introduced by the Financial Services and Markets Act 2023 (FSMA 2023) and requires, once it comes into effect, all authorised persons who want to approve financial promotions to have the FCA's permission to do so, subject to certain exemptions. PS23/13 sets out the FCA's final policy on the new financial promotion requirement, including its approach to assessing applications and the reporting and notification obligations on firms who are granted permission. The FCA has also published a webpage on the application process. The gateway comes into effect on 7 February 2024. A three-month window for firms who are not exempt to apply for permission opens on 6 November 2023 and closes on 6 February 2024. | Press release
• (12 Sep 2023) The House of Commons Treasury Select Committee has held a pre-appointment hearing to take the oral evidence of Sarah Breeden ahead of her appointment as Deputy Governor for Financial Stability at the Bank of England from 1 November 2023. Amongst other things, Breedon was asked about cryptoassets and CBDCs and regulatory responses. | Parliament TV recording of the session – section on crypto
• (7 Sep 2023) FCA letter setting out its expectations regarding firm's preparations for the cryptoasset financial promotions regime coming in on 8 October 2023. In particular, the FCA has indicated that in response to industry readiness it will give cryptoasset firms more time to implement certain changes by introducing a modification by consent process.  The effect of the modification will be to delay the implementation of the ‘back end’ Direct Offer Financial Promotion (DOFP) rules by three months for any approved firms. Specifically rules in COBS 4.10.2AR, COBS 4.12A.15R and COBS 10.1.2R related to personalised risk warnings, 24-hour cooling off period, client categorisation and appropriateness assessments. This would give such firms until 8 January 2024 to introduce these features that require greater technical development, while the core rules would still come into effect from 8 October 2023. The FCA has also published examples of good and poor practice on firms’ preparations for the new marketing rules. | Press release