Lynn Johannson, Advisor, Sustainability and ESG
January 4th, 2024
Squire Patton Boggs LLP | Katherine Wakeham and Chris Webber | Oct 30, 2018
Last month, the House of Commons Treasury Committee published its report on crypto-assets. The report expresses serious concerns about the risks of consumer harm and financial crime and calls for regulation “as a matter of urgency“.
It is striking that the Committee did not consider it appropriate to refer to "crypto-currencies" in the current landscape. They felt that these assets were failing to perform key functions of a currency, because:
The term "crypto-assets" was preferred.
The Committee acknowledged some of the advantages and opportunities of crypto-asset and distributed ledger technology. But it found there were interlinking limitations. In particular:
Some limitations identified by the Committee are inherent. Others could be reduced and/or eliminated by effective regulation. Presently, the FCA has no powers to regulate crypto-assets themselves and only limited scope to regulate ICOs. This limits the FCA to issuing warnings drawing attention to the risks investors in these products face. The Report considered such warnings "a feeble corrective to advertisements...that only emphasise the upside opportunities of crypto-asset investing". This led the Committee to conclude that:
"Given the scale and variety of consumer detriment, the potential role of crypto-assets in money laundering and the inadequacy of self-regulation, the Committee strongly believes that regulation should be introduced. At a minimum regulation should address consumer protection and money laundering."
There is currently a level of self-regulation within the industry, but the Committee considered this insufficient. The Committee's recommended that in the first instance "The Regulated Activities Order should be updated to bring ICOs within the FCA's perimeter… and bring investor protections into line with those in the United States", where the Securities and Exchange Commission generally treats utility token issues as within existing securities laws. The Committee considered that this:
"...would be the quickest method of providing the FCA with the necessary legal powers to execute its duties of protecting consumers and maintaining market integrity. Designing a new framework of regulation would inevitably take much longer and given the growing risks surrounding crypto-assets and subsequent consumer detriment, the introduction of regulation should be treated as a matter of urgency."
The Committee suggested that regulation should include, at least, issuing ICOs and providing crypto exchange services.
The Committee also considered that, whilst there didn't appear to be a significant risk to market stability caused by crypto-assets, the Bank of England and FCA should continue to monitor this risk.
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