It is just a matter of time until banking authorities and the bitcoin community find themselves at odds over the future of the industry.
With regard to instruments that fall under the legal definition of a “security,” securities regulators in Canada and the United States have broad authority to regulate these instruments (and the distributions of such securities) and subject distributors to disclosure requirements, registration requirements, and other regulatory oversight.
Regulators must strike a balance between safeguarding investors from issues including token price volatility, transparency, valuation, custody, and liquidity, and the usage of uncontrolled cryptocurrency exchanges.
An investment contract is one in which the parties agree to spend money in a joint venture in the hopes of making money, with the understanding that profits will be derived in large part from the efforts of the other parties. The CSA has declared that content will take precedence over form when determining whether or not securities rules apply to a certain currency or token.
Public issuers will be required to register as soon as the Securities and Exchange Commission (CSA) publishes a staff notice stating that securities regulation would be applied to specific crypto companies.
Then, in March 2021, the CSA issued a staff notice clarifying how to meet registration requirements, which was published. An interim method to requiring crypto trading platforms to register as investment dealers with IIROC was also proposed by the March 2021 staff note, citing the time and complexity of this registration procedure.
Should The Regulatory Framework Be Stricter?
Regulators say that cryptocurrency exchanges may be “common businesses” since buyers of crypto-based services now anticipate a profit, and this profit is typically related to external conduct, such as commercial operations and coordinated marketing efforts.
In recent months, SEC Chair Gary Gensler has consistently underlined the necessity for cryptocurrencies and DeFi platforms to be regulated by the SEC in order to safeguard investors. According to Mr. Gensler and other supporters of SEC regulation, bitcoin and DeFi businesses are vulnerable to fraud and abuse if left unregulated, further exposing investors to these dangers.
To avoid scams and fraud in decentralized marketplaces, such as the Forex market, the world’s biggest financial market, the government opted to tighten legislation.
As a result, today’s Forex regulation and brokers in Canada face the possibility of making things harder for them due to harsher rules and the manner the government intends to control the stated industry. Mr. Gensler has also urged Congress to amend relevant laws so that the SEC may work more closely with other financial regulators to ensure that the specific issues and dangers that crypto and DeFi provide are properly addressed.
One of the key benefits of blockchain finance is that it removes control of money from government authorities. As a result, the crypto community as a whole generally rejects rigorous regulations of the business. Regulations should not be imposed on emerging technologies, they say, since they cannot be expected to conform to antiquated statutes and precedents.
For DeFi systems, this argument is particularly widespread, since they are meant to provide peer lending and banking services underpinned by blockchain technology without the need for a middleman. DeFi supporters believe that completely decentralized finance is approaching, despite the fact that many of the networks now designated as DeFi platforms are not yet really decentralized.
Consequently, they argue, since most securities legislation and case law presume the presence of intermediaries and their regulatory duties, these platforms do not fit under conventional securities regulations.
While the centralized middleman in conventional banking poses a large-scale leak risk, proponents of DeFi say that the blockchain-backed, decentralized architecture of DeFi platforms makes comparable hacks and leaks impossible.
Challenges For Regulating Cryptocurrency And DeFi Markets In Canada
Even if there are other legal matters to consider, one of the core issues in the regulatory conflict is whether or not a crypto-based product qualifies as a “security.” Lawmakers in the United States are working to develop a regulatory framework that would allow cryptocurrency to flourish while also protecting consumers.
The new legislation which is called the Clarity for Digital Tokens Act of 2021 was filed on October 5, 2021. The mentioned legislation was sentenced by Patrick McHenry, who is the leading member of the United Stated House of Representatives Financial Services Committee. This bill, as suggested by SEC Commissioner Hester Peirce, would codify the “safe harbor” for cryptocurrency assets that is envisioned by this measure into law.
The proposed law would enable cryptocurrency enterprises to create tokens without breaching the Securities and Exchange Commission’s (SEC) securities restrictions. According to the bill’s terms, cryptocurrency start-ups would have three years to become entirely decentralized before being forced to shut down. After then, they would no longer be considered to be securities distributors under the law.
In a complex argument, the SEC (and all other securities regulators) are faced with an obvious dilemma: how to safeguard investors from new, possibly harmful investing technologies while also ensuring that it does not limit the development of emergent, rapidly increasing industry.
This has been the dominant focus in this area too far, after the publishing of guidelines from the CSA and the Securities and Exchange Commission.