Archive: April 2016

1
UK Government opens consultation on draft innovation plan for financial services
2
New “PropTech” business models in the UK commercial real estate market
3
New European virtual currency trade body
4
Japan Aims to Facilitate Banking Institutions to Invest in Bank-Related FinTech Companies
5
EU Fintech developments
6
EU Oversight on payments
7
FCA Encouragement for Roboadvice
8
FinTechs get ready to play in the sandbox
9
Australia and Singapore discussing cooperation agreement
10
Lost cryptocurrency – Can you get your “money” back?

UK Government opens consultation on draft innovation plan for financial services

By Jonathan Lawrence

According to the UK Treasury’s recently released draft innovation plan for financial services, the Financial Conduct Authority (“FCA”) “intends to broaden engagement with large incumbent institutions”. “To facilitate increased dialogue the FCA plans to proactively engage with large incumbents to ensure their potential for consumer-friendly innovation is not being held back by regulatory considerations,” the Treasury said. “In particular, it will seek out opportunities to pilot research on new initiatives.”  The regulator is recognising that innovation does not just happen within the start-up environment and that it is within its power to support a broader appetite among the traditional players in the market to use the latest technology to innovate, whether on their own or in collaboration with others.

In March 2016 the FCA and Australia’s Securities and Investments Commission (“ASIC”) signed a deal to make it easier for financial technology firms based in each country to win authorisations to operate in the other country. The Treasury said the FCA can help “put UK-based innovators in touch with the right regulators when they look to start doing business in other regulatory jurisdictions” and is “ready to help non-UK innovators interested in entering the UK market”. The FCA wants to put more “co-operation agreements” in place “with key regulators”, the Treasury said.

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New “PropTech” business models in the UK commercial real estate market

By Matthew Gibbon and Lucy Haworth

A round table discussion held by the Centre for the Study of Financial Innovation in London on 26 April 2016 featured presentations from new online marketplace platforms offering opportunities in the UK commercial real estate (“CRE”) sector:

  • Landbay, a peer-to-peer lending service for portfolio landlords of residential buy-to-let mortgages;
  • LendInvest, a provider of CRE bridging loans, funded by a combination of institutional investors and an online marketplace platform; and
  • Proplend, a peer-to-peer lending platform offering a CRE syndicated loan model for retail investors.

The consensus of the panel was that these platforms were providing a means by which retail investors could directly invest in an asset class previously unavailable to them, leading to increased access to indirect ownership and investment in the UK property market – accessing real estate by means of financial instruments. In addition, technology is increasingly being used to streamline pricing and the administrative process; investors lending through Proplend, for example, sign up to standardised terms and conditions designed to reduce the administrative burden and speed up the lending process.

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New European virtual currency trade body

By Jonathan Lawrence

A new trade body designed to aid regulatory understanding of virtual currencies has been launched in response to increased government interest in Europe.

The Brussels-based European Digital Currency & Blockchain Technology Forum (EDCAB) is a public policy platform for digital currencies and distributed ledger technologies. It also co-organised an industry expo for policymakers in the European Parliament from 18 to 21 April 2016.

Virtual currencies have rapidly risen up the European policy agenda in all the major institutions:

  • The Council of the European Union put virtual currencies at the top of a list of targeted areas for rapid progress at its February 2016 meeting, and has called for legislation to be tabled by the end of June 2016.
  • The European Parliament is preparing its own initiative report on virtual currencies, with the Committee on Economic and Monetary Affairs scheduled to vote on the report on 25 April 2016. Additionally, the Committee for Internal Market and Consumer Protection is also considering the issue later in April.
  • The European Commission has been considering regulation of virtual currencies through its Action Plan and proposals to combat terrorist financing, with legislation ready for the end of June 2016.

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Japan Aims to Facilitate Banking Institutions to Invest in Bank-Related FinTech Companies

By Yuki Sako

On March 4, 2016, the Cabinet of Japan approved and submitted to the Diet an amendment bill to the Banking Act of Japan that would enable banks and bank holding companies to acquire more than the permitted holding of nonbank interests (5% (banks) or 15% (bank holding companies)) of certain nonbank companies whose businesses involve innovative technologies that can be applied in banking business.  Under the amendment bill, banking institutions are, with approval of the Financial Services of Agency of Japan (FSA), permitted to acquire and hold a controlling interest in various FinTech companies that would provide innovative technologies to advance banks’ operations or benefit bank customers.  When proposing the amendment bill, the FSA explained that the amendment bill aims to facilitate banking institutions to invest in bank-related innovative technologies, IT technologies in particular.

The amendment bill is expected to pass the Diet during the current Diet session and to come into force within 1 year after the promulgation.

Text of the amendment bill can be found here (only in Japanese).

EU Oversight on payments

By Jacob Ghanty

The second EU Payment Services Directive is set to change the banking landscape in Europe.  In the linked article, Jacob Ghanty describes some of the changes that PSD2 will bring about.  This article was first published in inCOMPLIANCE, member publication of the International Compliance Association www.int-comp.org.

FCA Encouragement for Roboadvice

By Jacob Ghanty

The UK’s Financial Conduct Authority published its final report on the Financial Advice Market Review on 14 March, which stated that there is a “clear need for intervention by the regulator and the government” to aid the provision of new and more cost-effective ways of delivering financial advice and guidance. The FAMR sets out recommendations to address concerns relating to the affordability and accessibility of financial advice, which includes recommendations to help firms develop automated “robo-advice” models.  In the linked article, first published in E-Finance & Payments Law & Policy, Jacob Ghanty expresses his views on robo-advice developments.

 

FinTechs get ready to play in the sandbox

By Michelle Chasser and Daniel Knight

In a recent speech at the Innovate Finance Global Summit, Christopher Woolard of the UK Financial Conduct Agency (FCA) provided details about the UK regulatory sandbox due to launch 9 May 2016. The sandbox will allow two FinTech cohorts a year to test their ideas without incurring the significant regulatory set up costs usually associated with going to market.

Participants in the sandbox will be given restricted authorisations to provide financial services to allow them to market test their ideas. The FCA will also develop a streamlined application process. Full authorisation will need to be sought to operate outside the sandbox.

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Australia and Singapore discussing cooperation agreement

By Jim Bulling and Michelle Chasser

The Australian Securities and Investments Commission (ASIC) and the Monetary Authority of Singapore (MAS) are in discussions to enter into a cooperation agreement to ensure Australian and Singaporean FinTech businesses will not be hindered by regulation when trying to enter the other country’s market.

The agreement is expected to be similar to that entered into between ASIC and the UK Financial Conduct Authority (FCA) in March. Under the ASIC-FCA agreement the two regulators will share information and implement a referral process for FinTech businesses interested in entering the UK or Australian market.

These agreements reflect the increasingly collaborative approach to FinTech regulation internationally.

Further information about the ASIC-FCA agreement can be found in our earlier post here.

Lost cryptocurrency – Can you get your “money” back?

By Jonathan Lawrence

Will English courts recognise cryptocurrency in tort and restitution claims? An article by Peter Susman QC in the March 2016 issue of the Butterworths Journal of International Banking and Financial Law considers that English common law is robust enough to facilitate the development of legal remedies for lost cryptocurrency (“Virtual money in the virtual bank: legal remedies for loss” (2016) 3 JIBFL 152).

A more complex issue is whether English law is ready to provide effective remedies in tort or restitution for misappropriated cryptocurrency. English courts have previously had difficulty applying criminal law to intangible assets. The Fraud Act 2006 helped remove any confusion by focusing on what has been done, rather than the type of property which has been affected.

So it should not be difficult to argue that the law of contract developed under English common law will apply on the same basis to cryptocurrencies. Principles developed under contract law may be used to answer questions about whether contractual obligations have been incurred, on what terms and what remedies may be available in relation to cryptocurrency.

In any event, many transactional and litigation lawyers tend to think of money less as personal property, and more as obligations owed by and to persons in respect of that money. The focus of courts should be then on remedies rather than proprietary rights.

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