Global FinTech & Payments Blog

Regulators Get Tough on Regulatory Outsourcing Failings

Posted in Payments

Latest FCA and PRA fines against a retail bank show little tolerance for poor outsourcing systems and controls.

By Fiona M. Maclean, Christian F. McDermott, Laura Holden, and Charlotte Collins

On 29 May 2019, the FCA and PRA announced that they had fined an independent UK bank for failing to manage its outsourcing arrangements properly between April 2014 and December 2016. The bank received separate fines of £775,100 from the FCA and £1,112,152 from the PRA (resulting in a combined fine of £1,887,252) for breaches of the regulators’ high-level principles for authorised firms, as well as their more detailed rules on outsourcing. Each fine includes a 30% early settlement discount.

The bank was fined by both regulators as the failings resulted in breaches of both regulators’ rules, and went to both regulators’ statutory objectives (specifically, the FCA’s consumer protection objective and the PRA’s objective to promote firms’ safety and soundness). Although both regulators applied the same five-step penalty framework to calculate their penalties, the way in which they applied the framework led to different figures. In particular, because the PRA had previously fined the same bank for outsourcing failures in November 2015, the repeat failure was a significant aggravating factor that led to an uplift in the PRA’s penalty. Continue Reading

Stakeholders Welcome New FinCEN Regulatory Guidance for Convertible Virtual Currency

Posted in Blockchain, Cryptoassets, Payments

FinCEN’s guidance clarifies the applicability of the BSA to a variety of virtual currency businesses.

By Todd Beauchamp, Charles Weinstein, Loyal T. Horsley, Cameron R. Kates, and Shaun Musuka

On May 9, the US Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued interpretive guidance expanding on previously issued guidance and rulings regarding the application of the Bank Secrecy Act and FinCEN’s implementing regulations (collectively, the BSA) to a variety of business models involving “convertible virtual currency” (CVC).[i]

Background

The BSA is the US’ principal anti-money laundering and counter-terrorism financing (AML) regulatory regime, and is applicable to “financial institutions,” which includes a variety of entities, such as banks and “money services businesses” (MSBs). One type of MSB is a “Money Transmitter,” which includes any person that accepts “currency, funds or other value that substitutes for currency from one person” and transmits such “currency, funds or other value to another location or person by any means.” Continue Reading

European Central Bank Crypto-Assets Task Force Releases Paper on Cryptocurrencies

Posted in Cryptoassets, Digital

The paper discusses supervision and regulatory issues of cryptocurrencies, and finds that a central bank digital currency in the EU is not (yet) warranted.

By Max von Cube

In May, the European Central Bank’s Crypto-Assets Task Force published a paper on cryptocurrencies such as Bitcoin, Ether, and Ripple (referred to as narrowly defined “crypto-assets”). The paper, titled “Crypto-Assets: Implications for financial stability, monetary policy, and payments and market infrastructures,” follows similar recent publications by the European Banking Authority (EBA)[i] and the European Securities and Markets Authority (ESMA).[ii]

After examining cryptocurrency markets and tracing their linkage to the financial system and the real economy, the authors of the paper found that cryptocurrencies currently do not pose a material risk to financial stability. Further, the authors currently see no direct implications of cryptocurrencies for monetary policy. Continue Reading

Overcoming Regulatory Hurdles: Introducing an Automated Convertible Note Generator for Token-Based Startups

Posted in Blockchain

The online document generator helps startups raise capital with customizable market standard terms and optional digital token provisions.

By David L. Concannon, Yvette D. Valdez, Stephen P. Wink, Miles P. Jennings, and Shaun Musuka

In collaboration with ConsenSys and OpenLaw, Latham & Watkins recently launched the Automated Convertible Note Generator, a complimentary tool designed to assist startups with capital raises. The Automated Convertible Note is a potential solution for capital formation that also addresses future token sales in a manner compliant with US securities and commodities regulations.

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UK FinTech State of the Nation Report Highlights UK’s Leading Position

Posted in Investing in FinTech

Report highlights key strengths and regulatory innovations to inform stakeholders for trade and investment.

By Laura Holden and Nootan Vegad

The Department for International Trade, with the support of Innovate Finance, has published a report titled the “FinTech State of the Nation”. Providing an overview of the UK’s FinTech industry and highlighting the UK’s appeal as a FinTech destination for entrepreneurs and investors, the report seeks to demonstrate how the UK’s FinTech sector has emerged as a global leader and why this will continue in the future.

The report describes the actions that the government, regulators, and industry have taken to stimulate and sustain growth of the UK’s FinTech sector. The report includes an overview of technology demand, a regional analysis of FinTech, details of the investment environment, views from the FCA, a summary of the talent, skills, and diversity in the industry and the “Essential Eight” technology trends — which includes block chain, drones, and artificial intelligence to name a few. Continue Reading

FCA Outlines Key Deadlines for PSD2 Compliance

Posted in Data Privacy, Cybersecurity, and AI, Payments

As several PSD2 deadlines approach, PSPs must comply with reporting and notification requirements, as well as with their GDPR obligations.

By Christian F. McDermott, Fiona M. Maclean, and Jagveen Tyndall

Though the majority of the provisions relating to the revised EU Payment Services Directive (PSD2) came into force in the UK on 13 January 2018, the regulatory technical standards (RTS) and strong customer authentication measures (SCA) will come into force on 14 September 2019. The FCA has issued a helpful reminder setting out some important deadlines that payment service providers (PSPs) must meet to be compliant.

Application Programme Interfaces

PSD2 allows third party providers (TPPs) to build payment service infrastructures upon the existing platforms of financial institutions; such institutions must provide TPPs with access to client account information via open application programme interfaces (APIs). Financial institutions seeking to enable such access can do so by either constructing dedicated interfaces built on these APIs or through adjusting existing customer interfaces. In both instances, such interfaces and their accompanying customer authentication measures must be in place by 14 September 2019. Continue Reading

To Charter or Not to Charter? Federal Judge Presses Pause on the OCC’s Plans

Posted in Digital, Investing in FinTech, Payments

Federal court allows NYSDFS lawsuit against OCC FinTech charter to proceed, raising further questions about the charter’s viability.

By Alan W. Avery, Todd Beauchamp, Loyal T. Horsley, Pia Naib, and Charles Weinstein

In a May 2 order, US District Court Judge Victor Marrero rejected the Office of the Comptroller of the Currency’s (OCC’s) recent motion to dismiss the New York State Department of Financial Services’ (NYSDFS’) new lawsuit challenging the OCC’s FinTech charter, and by doing so, may have put the charter in limbo for the foreseeable future.

Overview

As detailed in this previous commentary, the NYSDFS’ then-Superintendent Maria T. Vullo sued the OCC and then-Acting Comptroller Keith Norieka in response to the OCC’s 2016 White Paper — “Exploring Special Purpose National Bank Charters for Fintech Companies.” Superintendent Vullo and the NYSDFS alleged that granting the proposed charter was outside the scope of the OCC’s statutory authority and would be harmful to the US financial system. The suit, however, was dismissed, primarily on the grounds that it was premature given the OCC had not yet taken any official action on the chartering process (i.e., the OCC had only released the White Paper). Following the dismissal of the NYSDFS suit, as well as the dismissal of a similar suit brought by the Conference of State Bank Supervisors, the OCC issued a policy statement in July 2018 announcing that it would begin accepting applications for special purpose national bank (SPNB) charters for non-depository FinTech companies. In the wake of this more formal movement on the FinTech charter, Superintendent Vullo again sued the OCC and the new Comptroller, Joseph Otting, in September 2018, seeking to block the OCC from taking further action to implement the chartering process. The OCC moved to dismiss the new NYSDFS suit, arguing that the claims were still premature because the OCC had not yet received — let alone approved — any FinTech charter applications.

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FinCEN Brings First Action Against a P2P Virtual Currency Exchanger

Posted in Cryptoassets, Payments

The enforcement action serves as a reminder that virtual currency exchangers, regardless of size, must comply with the BSA.

By Todd Beauchamp and Charles Weinstein

The US Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) does not care if you are a multinational corporation or an individual operating out of your garage; regardless of size, if you violate the Bank Secrecy Act (BSA), you are fair game for enforcement. The financial services industry was reminded of this recently when FinCEN announced that it had assessed a civil money penalty against an individual for “willfully violating the [BSA’s] registration, program, and reporting requirements.”

The matter involved a single individual, Eric Powers, who solicited purchases and sales of bitcoin on the internet, and completed those transactions with other individuals in person, through the mail, and by wire. FinCEN claimed that Powers’ activity included executing around 160 purchases of bitcoin for approximately US$5 million through in-person cash transactions with individuals he met through a bitcoin forum. In connection with Powers’ virtual currency-related activity, FinCEN asserted that Powers operated as a peer-to-peer (P2P) exchanger of convertible virtual currency, and thus, as a “money transmitter” under the BSA. Continue Reading

US Digital Asset Bills: Will April Legislation Bring May Flowers?

Posted in Cryptoassets

Federal legislators introduce two bills in an attempt to provide the blockchain economy with regulatory certainty.

By Stephen P. Wink, Morgan E. Brubaker, Cameron R. Kates, and Shaun Musuka

US regulators and federal legislators may be heeding the calls of crypto-enthusiasts for legal clarity regarding the status of digital assets and cryptocurrencies (collectively, Tokens). Two weeks ago, the Securities and Exchange Commission (SEC) released an analytical framework for determining when a Token constitutes a security. Last week, US federal legislators followed up by introducing two bills that are designed to “provide regulatory certainty for businesses, entrepreneurs, and regulators in the US’ blockchain economy,” the Token Taxonomy Act of 2019 (H.R. 2144) (TTA) and the Digital Taxonomy Act of 2019 (H.R. 2154) (DTA, and together with the TTA, the Bills).

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Russian Civil Code Recognizes Digital Rights and Smart Contracts

Posted in Cryptoassets

The new legislation may act as a catalyst for a crypto-evolution within Russian law.

By Andrew C. Moyle and Elizaveta Bacheyeva

On 18 March 2019, the Russian legislator took the first step in introducing the Russian civil law system to the new universe of digital assets. The Russian Civil Code was amended to include concepts of digital right and smart contracts, and the legislator also recognized digital rights as an independent object of civil law regulation.

By way of background, the Russian civil law system is based on laws rather than precedents, and — unless a particular concept is explicitly mentioned in the legislation — then the concept is non-existent for civil law regulation and falls outside any legal protection. Prior to these amendments to the Civil Code, digital assets or cryptocurrencies did not fall within any category of assets recognized by the Civil Code, and there was much uncertainty on how these digital asserts were regulated and how transactions with such assets should be structured. In one instance, a Russian court failed to recognize Bitcoin as an asset and, on those grounds, refused to include the Bitcoin in a debtor’s insolvency estate.

These amendments to the Civil Code will come into force on 1 October 2019 and will apply to all transactions made after that date. The new legislation is only the starting point for a crypto-evolution within Russian law, as the Russian legislator is currently considering two draft laws “On digital finance assets” and “On crowdfunding.” These laws would provide more in-depth regulation of cryptocurrencies, tokens, and investments through digital platforms. Continue Reading

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