Abstract
This chapter shows the impact of the evolution of financial technology on the market for money, in order to understand the effect of fintech on monetary policymaking; it considers the development of private tech-fuelled instruments as an alternative to sovereign money (i.e. non-sovereign cryptocurrencies) and specific regulatory analysis of the current tolerance of non-sovereign cryptocurrencies by national governments and central banks. It moves from the hypothesis that the protection of savings invested in such cryptocurrencies refers to individual rights; therefore, the analysis investigates the convenience to set specific safeguards to guarantee the capacity of these instruments to preserve their value, along with further backstops for avoiding theft, plagiarism and fraud.
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Notes
- 1.
It is worth considering that the current debate on any solution to provide an alternative to the sovereign currencies in executing the payments implies a direct consequence on the sovereign power of the governments, as the monetary policies are one of the most important outcomes of the politicians aimed at influencing the trends of the economy. Focusing on the current topic, we have to refer to ECB 2019. “Crypto-assets—trends and implications”, Bruxelles where is stated that “ECB actually first started to explore trends in crypto-assets back in 2011 and published its first report on virtual currency schemes in 2012, followed by a second one in 2015. In the light of the recent increase in market interest, the ECB set up an internal task force to develop a common understanding of crypto-assets and assess their potential impact on some of its core areas of responsibility: monetary policy, financial stability, payments and market infrastructures”.
It is worth also considering Houben, R. and Snyers, A. 2018. “Cryptocurrencies and blockchain. Legal context and implications for financial crime, money laundering and tax evasion”, European Parliament—Policy Department for Economic, Scientific and Quality of Life Policies—Directorate-General for Internal Policies, p. 11.
- 2.
In addition, see Law, L. and Sabet, S. and Solinas, J. 1997. “How to make a mint. The cryptography of anonymous electronic cash” American University Law Review, p. 1131 ff., which pointed out, among the most important uses of the technologies, electronic commerce, qualified as “performing financial transactions via electronic information exchanged over telecommunications lines”. They move from such evidence to highlight that “a key requirement for electronic commerce is the development of secure and efficient electronic payment systems”. In particular this essay focused on electronic cash: “as the name implies, electronic cash is an attempt to construct an electronic payment system modelled after our paper money system. Paper money has such features as: portability (easily carried); recognizability (as legal tender), and thus readily acceptable; transferability (without involvement of the financial network); untraceability (no record of where money is spent); anonymity (no record of who spent the money); and the ability to make ‘change.’ The designers of electronic cash focused on preserving the features of untraceability and anonymity. Thus, electronic cash is defined to be an electronic payment system that provides, in addition to the above security features, the properties of user anonymity and payment untraceability”.
It is worth recalling also Dam, K. W. and Lin, H. S. 1996. “Cryptography’s Role In Securing The Information Society” Danvers. p. 49; Chaum, D. 1985. “Security Without Identification: Transactions to Make Big Brother Obsolete” Computing Machinery, p. 1030 ff.; Chaum, D. and Pedersen, T.D. 1992b. “Wallet Databases With Observers” Advances In Cryptology--Crypto ‘92, Lecture Notes In Computer p. 93 ff.; Chaum, D. et al. 1988. “Untraceable Electronic Cash” Advances in Cryptology-crypto ‘88, lecture notes in computer science, p. 319 ff.; these articles provide the background for the current regulatory analysis (that follows the success of the main applications, and the passive regulatory behaviour of the policymakers in the last years).
More in general, see Lothian, T. 2010. “Law and Finance: A Theoretical Perspective” Columbia Law and Economics Working Paper No. 388; Capriglione, F. 1975. “I surrogati della moneta nella vigente normativa del T.U. n. 204 del 1910 sugli Istituti di emissione”, Banca borsa titoli di credito, p. 365 ff.
- 3.
It refers also to Sabett, R. V. 1996. “International Harmonization In Electronic Commerce And Electronic Data Interchange: A Proposed First Step Toward Signing On The Digital Dotted” American University Law Review, p. 512 ss.; the author questioned that “The law’s ability to respond to changes in technology, most notably the Internet, remains in doubt.”
It seems hard to justify more than 20 years of delay, but it is sufficient to recall the choice to regulate the effects of tech-fuelled innovations according to the principle of proportionality. Indeed, the policymakers have chosen to regulate the material effects of these innovations, and not to drive the path of technical evolutions. According to the above, the delay refers to a political choice, which seems to be inadequate to ensure a level-playing field that is not jeopardized by the perspective of an unregulated alternative to the activities reserved to supervised firms.
- 4.
In this respect, see both Brands, S. 1993. “Untraceable Off-line Cash in Wallets with Observers”, Advances In Cryptology-Crypto ‘93, Lecture Notes In Computer Science. p. 302 and Okamoto, T. and Ohta, K. 1991. “Universal Electronic Cash” Advances in Cryptology-Crypto ‘91, Lecture Notes in Computer Science p. 324.
- 5.
In particular, see Fullenkamp, C. and Nsouli, S. M., 2004. “Six Puzzles in Electronic Money and Banking” IMF Working Paper; the authors identified the main issues raised by e-money and e-banking and built a framework for analysing the effects of e-money and e-banking, and for choosing the appropriate approach to regulating electronic money and banking.
On this topic, see also Rogers, J. S., 2005. “The New Old Law of Electronic Money” SMU Law Review, p. 1253 ff.; Georgescu, M. and Georgescu, I. E. 2004 “The Emergence of Electronic Payment Systems for the Growth of E-Business”. International Symposium Economics and Management of Transformation.
It is worth considering the Italian approach to this topic as a background of the above considerations, see Costi, R. 1993. “Servizi di pagamento: il controllo sugli enti produttori”, Banca borsa titoli di credito, p. 129 ff.; Antonucci, A. 1994. “Gli intermediari finanziari ‘residuali’ dalla legge antiriciclaggio al Testo unico delle leggi in materia bancaria e creditizia”, Rassegna economica, p. 245 ff.; Olivieri, G. 2001. “Appunti sulla moneta elettronica. Brevi note in margine alla direttiva 2000/46/CE riguardante gli istituti di moneta elettronica”, Banca borsa titoli di credito, p. 809 ff. Troiano, V. 2001. “Gli istituti di moneta elettronica”, Quaderni di ricerca giuridica della Consu-lenza Legale. Banca d’Italia, n. 53, Roma, p. 16 ff. Criscuolo, L. 2003. “Gli intermediari finanziari non bancari”, Bari, p. 110 ff.; Clarich, M. 2010. “L’armonizzazione europea dei servizi di pagamento: l’attuazione della direttiva 2007/64/CE”, in Scritti in onore di Francesco Capriglione, Padova, p. 459 ff.; Basso, R. 2011. “Informazioni relative alle operazioni di pagamento e ai contanti”, La nuova disciplina dei servizi di pagamento, Torino, p. 537 ff.; Lemma, V. 2017. “Commento sub articolo 126 quinquies del d. lgs. 385 del 1993” “Codice commentato dei contratti”, Padova; Burchi, A. et al., 2019. “Financial Data Aggregation e Account Information Services”, Consob, Quaderni FinTech, n. 4; Troiano, V. 2019. “Gli istituti di moneta elettronica”. “Manuale di diritto bancario e finanziario. Padova.
- 6.
Indeed, the former refers to the issuing of money out of the activities of central banks, the latter to the opportunities led by the application of fintech (and, also, to legal tender).
- 7.
Moreover, see Bollen, R. A. 2013. “The Legal Status of Online Currencies: Are Bitcoins the Future?” Journal of Banking and Finance Law and Practice with respect to the evidence that, being a decentralized system, there is no central issuer, authority or register-keeper in cryptocurrencies.
- 8.
See Hicks, J.R. 1937. “Mr. Keynes and the “classics”; a suggested interpretation”, Econometrica. Journal of the Econometric Society, 5(2), p. 147 ff.
- 9.
See Hansen, A.H. 1953. “A Guide to Keynes”, New York.
- 10.
It is worth recalling Haar, B. 2016. “Freedom of Contract and Financial Stability through the Lens of the Legal Theory of Finance” (LTF)—LTF Approaches to ABS, Pari Passu-Clauses, CCPs, and Basel III” SAFE Working Paper No. 141, on the example of the private creation of money by structured finance products. This paper also shows further implications referring to pari passu clauses and collective action clauses, which both exhibit a differential application of these legal rules according to the hierarchical status of the respective market participant, and can therefore endanger sovereign debt restructurings. Legal instruments to avoid this are briefly explored. An example of another key role of the law in crisis that is the task to resolve the tension between market discipline and financial stability is exemplified by the regulation of the OTC derivatives market and proposals of effective loss-sharing among CCPs. Related questions about the significance of legal rules to ensure financial stability are raised in the analysis of minimum capital requirements under Basel III.
- 11.
Furthermore, see Draghi, M. 2018. “Monetary policy in the euro area”, Speech by the President of the ECB, ECB Forum on Central Banking, Sintra, 19 June 2018, whereby the author restated ECB’s recent decisions on policy instruments: “First, our anticipated ending of asset purchases in December this year is subject to incoming data confirming the medium-term inflation outlook. Moreover, the APP can always be used in case contingencies materialise that we do not currently foresee. Second, we announced that we intend to maintain our policy of reinvesting the principal payments from maturing securities purchased under the asset purchase programme (APP) for an extended time after the end of net purchases, and in any case for as long as necessary to maintain favourable liquidity conditions and an ample degree of monetary accommodation. Third, we conveyed our expectation that the key ECB interest rates will remain at their present levels at least through the summer of 2019, and in any case for as long as necessary to ensure that the evolution of inflation remains aligned with our current expectations of a sustained adjustment path. This enhanced forward guidance clearly signals that will remain patient in determining the timing of the first rate rise and will take a gradual approach to adjusting policy thereafter. The path of very short-term interest rates that is implicit in the term structure of today’s money market interest rates broadly reflects these principles.”
- 12.
Note Zaring, D. and Bignami, F. 2016. “Comparative Law and Regulation. Understanding the Global Regulatory Process”. Northampton, MA, USA, which represented a “extensive scholarly inquiry on how to further liberal democratic ideals in an age of regulatory governance”, and this refers to “the instrumental ambition of controlling private market and social activity to suit public purpose [that] has provoked debate on the types of legal procedures, rules, and sanctions that are most likely to produce effective regulation”.
- 13.
It is worth mentioning US SEC. 2019 “SEC Orders Blockchain Company to Pay $24 Million Penalty for Unregistered ICO”, Sept. 30.
See also ESMA 2017b. “ESMA alerts firms involved in Initial Coin Offerings (ICOs) to the need to meet relevant regulatory requirements” and ESMA 2017a. “ESMA alerts investors to the high risks of Initial Coin Offerings (ICOs)”; Financial Consumer Authority (FCA) 2017. “Consumer warning about the risks of Initial Coin Offerings (‘ICOs’)”; Commission de Surveillance du Secteur Financier (CSSF) 2018. “Warning On Initial Coin Offerings (“Icos”) And Tokens”; Consob 2019. “Le offerte iniziali e gli scambi di cripto-attività. Documento per la Discussione”.
- 14.
It includes a reference to Alpa, G. 1997. “La normativa sui dati personali. Modelli di lettura e problemi esegetici”. Il diritto dell’informazione e dell’informatica, fasc. 4–5, p. 70 ff. on the political-institutional reading of the protection of the person; the legal-formalist reading of drafting techniques and of the normative plot; and the legal-realist reading of the interests at stake and of the juridical construction of the individual identity.
- 15.
It recalls Finck, M. 2017. “Blockchains and Data Protection in the European Union” Max Planck Institute for Innovation & Competition Research Paper No. 18-01, which examines the consequences flowing from that state of affairs and suggest that in interpreting the GDPR with respect to blockchain, fundamental rights protection and the promotion of innovation must be reconciled.
- 16.
However far progress may go, only a few long-standing and largely accepted properties will ultimately decide upon ‘moneyness’.
- 17.
Inter alia, see: Hicks, J.R. 1967. “Critical Essays in Monetary Theory”, Oxford; Harrod, R. F. 1969. “Money”, London; Scitovsky, T. 1969. “Money and the balance of payments”, The Economic Journal, 79(316), p. 904 ff.
In 1787, during the debates on adopting the US Constitution, James Madison stated that [t]he circulation of confidence is better than the circulation of money. It means that the founding father chose to use public trust in money as the yardstick for trust in public institutions, for money and trust are as inextricably intertwined as money and the state. Money is an indispensable social convention that can only work if the public trusts in its stability and acceptability and, no less importantly, if the public has confidence in the resolve of its issuing authorities to stand behind it, in bad times as well as in good. Madison’s eighteenth-century remark on the link between money and trust has lost none of its relevance in the twenty-first century. The issue of trust in money has resurfaced in the public debate on privately issued, stateless currencies, such as bitcoin, and their promise to serve as reliable substitutes for public money.
- 18.
In earlier times, when credit activities did not enjoy the same diffusion as today and money supply was largely made of cash (with metal coins circulating in high amounts too), Jevons had used to discern between standard of value, which encompasses the modern notion of value stability over time, and store of value, which related to the physical storability and transportability of coins. See Jevons, W.S. 1875. “Money and the Mechanism of Exchange”, New York.
- 19.
In this regard, tender has the same meaning as course, but the latter’s root may still be found in the form which said expression takes in many Romance languages (e.g. ‘corso legale’ in Italian).
- 20.
For instance, consider the case of Montenegro. In this young Balkan republic, the euro circulates with the same ease and bounty as in the nineteen countries which have officially joined the monetary union: yet is not endowed with legal tender, for the country is not an EU Member State and, thus, cannot participate in the single currency. Hence, Montenegro does not experience the effects associated with a membership of the euro area: for instance, it is not an ECB counterpart. In turn, this yields “real” economic effects. Assessing whether it would be better for Montenegro to join the EU and officially adopt the euro is not one of this chapter’s goals, for it would require a completely separated analysis, yet it enables to say that the evolution of the legal status of cryptocurrencies could not lay on the background. In fact, the decision to let a money-like instrument to become an official currency ultimately impacts the wealth of any subject who would use that instrument regardless of it having legal tender or not. In turn, this “micro-” consequences affect the monetary system as a whole: for instance, via payment services.
- 21.
The most significant contribution traces back to Friedman, M. and Schwartz, A.J. 1987. “Money in Historical Perspective”, Chicago.
- 22.
A wide and fair account of the issue is provided in Davies, G. 2019. “How China dodged a trade war recession”, appeared on Financial Times, 15 September 2019.
- 23.
This recalls the exemplification made by Friedrich August von Hayek and Milton Friedman, respectively; both of them received the Nobel Prize in Economics: the former in 1974, the latter two years later.
- 24.
Hence, by vigorously upholding the disintermediation of transactions, in a 1999 interview he declared that the one thing that’s missing, but that will soon be developed, is a reliable e-cash, a method whereby on the Internet you can transfer funds from A to B, without A knowing B or B knowing A.; see Cawrey, D. 2014, “How Economist Milton Friedman Predicted Bitcoin”.
- 25.
Among those who have recently spoken against cryptocurrencies, Richard Thaler declared that bitcoin and its brethren were the markets most resembling a bubble; see ECO Portuguese Economy 2018. “Economics Nobel prize winner, Richard Thaler: The market that looks most like a bubble to me is Bitcoin and its brethren”.
- 26.
In addition, see Zeno Zencovich, V. 1983. “Telematica e tutela del diritto all’identità personale” Politica del diritto, fasc. 2, p. 345 ff., whose conclusion highlighted that to the general problems related to the protection of confidentiality in relation to the collection of information by databases (prohibition to collect information on very personal aspects of the individual, right of the individual to access data from others held on his behalf, right of rectification of inaccurate data by the person concerned), the introduction of interactive devices will add a wide set of rights to be protected, resulting from the “involuntary” concentration of data so far necessarily dispersed.
- 27.
It refers to FSB 2017a. “Chair’s letter to G20 Finance Ministers and Central Bank Governors ahead of their Baden-Baden meeting”, 17 March.
- 28.
In addition, see Garonna, P. 2019. “Ethics from Within: A Paradigm Shift for Financial Ethics”; the author stated that “even though the ethical dimension figures prominently in many specific questions of financial innovation (i.e. cryptocurrencies, … etc.), there should not be a specific ethical problem “inherent” in finance, and there should not be a special financial branch or model that can be considered “ethical” as distinct from—or opposed to—the rest of finance.
- 29.
It refers to Stiglitz, J. E. 2017. “Where Modern Macroeconomics Went Wrong” NBER Working Paper No. w23795. The author argues that at the heart of the failure were the wrong micro-foundations, which failed to incorporate key aspects of economic behavior, for example incorporating insights from information economics and behavioral economics. Inadequate modelling of the financial sector meant they were ill-suited for predicting or responding to a financial crisis; and a reliance on representative agent models meant they were ill-suited for analysing either the role of distribution in fluctuations and crises or the consequences of fluctuations on inequality.
This analysis will take into account the alternative benchmark models that this author proposes, which may be useful both in understanding deep downturns and responding to them by means of a regulatory intervention.
- 30.
All the above would not lay down on Krugman’ statement that it’s a bubble wrapped in techno-mysticism inside a cocoon of libertarian ideology, as he wrote in an op-ed during those days in which bitcoin stationed around its historical high. However, this cannot deny that such approach opened the current debate by proposing a direct comparison between the situation of that digital coin, on the one hand, and the ‘tulip mania’ experienced in the Netherlands during the seventeenth century, allegedly propelled by the establishment of markets which at that very time were—upon their “invention”—seen as particularly opaque (e.g. futures ones); see Krugman, P.R. 2018. “Bubble, Bubble, Fraud and Trouble, appeared on The New York Times, 29 January.
- 31.
Questioning the actual usability of bitcoin as a means of payment may seem a defence; however, “there’s really no reason to use bitcoin in transactions—unless you don’t want any-one to see either what you’re buying or what you’re selling, which is why much actual bitcoin use seems to involve drugs, sex and other black-market goods”. Hence, the consideration that the ultimate backing behind the dollar is actually the fact that the US government will accept it, in fact demands it, in payment for taxes, whereas a solid and well-reputed institution like the Federal Reserve intervenes to stabilize its power; see Krugman, P.R. 2018. “Bubble, Bubble, Fraud and Trouble, appeared on The New York Times, 29 January.
- 32.
In addition to this (and to confirm it), Krugman noted that bitcoin’s volatility over the six weeks preceding his article would have meant something like an 8000% inflation rate, had that asset been regarded as a currency. Furthermore, the author saw a wandering price as allowing larger room for manipulation, as some relevant cases had already occurred. Also, he mentioned the fact that certain reports allege the possibility that foreign powers might have hidden behind some episodes of that kind, for the purpose of financing themselves in breach of existing international agreements; see Krugman, P.R. 2018. “Bubble, Bubble, Fraud and Trouble, appeared on The New York Times, 29 January.
- 33.
It is worth recalling Shiller, R. J., 2014. “Speculative Asset Prices (Nobel Prize Lecture)” Cowles Foundation Discussion Paper No. 1936 about the role of rationality in the formation of the prices and the growing trend towards behavioural finance and, more broadly, behavioural economics, the growing acceptance of the importance of alternative psychological, sociological and epidemiological factors as affecting prices.
However, the relevant background refers to Shiller, R. J. 2013. “Reflections on Finance and the Good Society” Cowles Foundation Discussion Paper No. 1894, where the author appreciated the important role of professional organizations in moderating the tendencies towards aggression and hoarding, which no financial institutions and codes of ethics can eliminate. Then, he acknowledged the important principle of reciprocity, and when this principle is made part of financial education a better public acceptance of the important role that finance plays in the society can be expected.
- 34.
Moreover, see Hansen L. P. 2019. “Reflection on MFR’s conference on Cryptocurrencies and Blockchains”; the author concluded that “market evolution happened because a good idea was coupled with capable technology and mutual commercial interest with enough time to catch on and gain traction”.
- 35.
Furthermore, see Nabilou, H. and Prum, A. 2018 “Ignorance, Debt and Cryptocurrencies: The Old and the New in the Law and Economics of Concurrent Currencies” Journal of Financial Regulation, which draw parallels between the information economics of money and quasi-money creation within the current central banking, commercial banking and shadow banking systems with that of the cryptocurrency ecosystem.
- 36.
Let us Wright, A. and De Filippi, P. 2018. “Blockchain and the Law: The Rule of Code”, Harvard Cambridge (MS).
- 37.
It is worth recalling Nakamoto, S. 2008. “Bitcoin: A peer-to-peer electronic cash system”, available at www.bitcoin.org/bitcoin.pdf.
- 38.
Namely, B-money by Wei Dai and Bit gold by Nick Szabo.
- 39.
It refers to the classic Hume, D. 1748. “Of Interest”, in “Essays Moral and Political”, A. Millar, London. See, on this topic, Dow, S. C. 2009. “David Hume and Modern Economics” Capitalism and Society; Paganelli M. P. 2006. “Endogenous Money and David Hume” Eastern Economic Journal, about the possibility to consider the effects of ‘more’ money on the markets that record less trade.
- 40.
See Norman v. Baltimore & O.R. Co., 24 U.S. 421, 4451 (1884).
- 41.
As ECB highlighted, private cryptocurrencies have little or no prospect of establishing themselves as viable alternatives to centrally issued money that is accepted as legal tender; see Mersch, Y. 2019, “Money and private currencies: Reflections on Libra. Speech by Member of the Executive Board of the ECB”, at the ESCB Legal Conference, Frankfurt am Main, 2 September.
- 42.
See the conclusion of Niels, F. 1993. “Single Term Off-line Coins” Advances In Cryptology-Eurocrypt ‘93; Chaum D. and Pedersen T. P. 1992a “Transferred Cash Grows in Size” Advances In Cryptology-Eurocrypt ‘92; Eng, T. and Okamoto T. 1994. “Single-Term Divisib Electronic Coins” Advances In Cryptology-Eurocrypt ‘94; Okamoto T. 1995. “An Efficient Divisible Electronic Cash Scheme” Advances In Cryptology-Crypto ‘95.
- 43.
In addition, it refers to Pasquini, N. 1983. “Identità personale e lesione della reputazione: appunti in margine ad alcune recenti sentenze. Nota a Trib. Roma 10 marzo 1982” Giurisprudenza italiana, fasc. 3, pt. 1B, p. 189 ff. on the problems of the misinformation.
- 44.
See on this point the classic work of Minsky, H.P. 1986. “Stabilizing an Unstable Economy”, New York.
- 45.
For instance, Nelson observed that digital currency investments entail low leverage and, thus, are not particularly dangerous from a systemic stability standpoint. See Nelson, B. 2018. Financial stability and monetary policy issues associated with digital currencies, Journal of Economics and Business, 100, 76–78.
However, Shiller had already warned on the likelihood that technology propagates bubbles, as those times were witnessing with regard to the stock price of dotcoms; see Shiller, R.J. 2000, “Irrational Exuberance”, Princeton.
- 46.
- 47.
It should be noted that even Nakamoto (op. cit.), with regard to the fact that bitcoin erased the necessity of a transaction being financially intermediated, acknowledged that such cryptocurrency relied upon no trusted third party.
- 48.
It is worth considering Holmström, B. R. 1989. “Agency Costs and Innovation”). Journal of Economic Behavior & Organization on the forces that supports and reduce the innovation.
- 49.
See Dyhrberg, A.H. 2016. Bitcoin, gold and the dollar—a GARCH volatility analysis, Finance Research Letters, 16, 85–92, which found something different from the literature consensus.
- 50.
See Fenwick, M, and Kaal, W. A. and Vermeulen, E. P.M., 2017. “Regulation Tomorrow: What Happens When Technology is Faster than the Law?” American University Business Law Review, Vol. 6, No. 3, where it is pointed out that “In an age of constant, complex and disruptive technological innovation, knowing what, when, and how to structure regulatory interventions has become more difficult”. The authors propose the following solution and questions: “lawmaking and regulatory design needs to become more proactive, dynamic, and responsive. So how can regulators actually achieve these goals? What can regulators do to promote innovation and offer better opportunities to people wanting to build a new business around a disruptive technology or simply enjoy the benefits of a disruptive new technology as a consumer?”
- 51.
See Draghi, M. 2019. “Farewell Remarks”, also highlighted that “Freely floating currencies were therefore not an option, and fixed exchange rates would not work as capital became more mobile within Europe, as the ERM crisis in 1992–3 proved. The answer was to create a single currency: one market with one money. This construct has been largely successful: incomes across the continent have materially increased, integration and value chains have developed to an extent unimaginable 20 years ago, and the Single Market has survived intact through the worst crisis since the 1930s.”
- 52.
In addition, see Sciarrone Alibrandi, A. 2008. “L’adempimento dell’obbligazione pecuniaria tra diritto vivente e portata regolatoria indiretta della Payment services directive 2007/64/CE”, “Il nuovo quadro normativo comunitario dei servizi di pagamento. Prime riflessioni”, Quaderni di Ricerca Giuridica della Banca d’Italia, n. 63; Barillà, G. 2015. “Il trasferimento dei servizi di pagamento”, Le Nuove leggi civili commentate, p. 1031 ff.; Libertini, M. 2011. “Brevi note su concorrenza e servizi di pagamento” Banca borsa e titoli di credito, p. 181 ff.
See also EUCJ, sect. III 11 September 2014, C-382/12 P, Il Foro italiano, 2015, pt. 4, c. 38 ss. and the comment of Granieri, M. “Diritto europeo. Pagamento tramite carte di credito: rispetto del regime della concorrenza ed applicazione di commissioni interbancarie multilaterali”.
With respect to the Italian regulation, See Lucantoni, P. 2018. “Commento sub art. 126 octies” and Ferretti, R. 2018. “Commento sub art. 126 decies”, both in “Commentario al testo unico delle leggi n materia bancaria e creditizia”, Padova.
- 53.
It is worth recalling also that the Bank of Canada, the Bank of England, the Bank of Japan, the European Central Bank, the Sveriges Riksbank and the Swiss National Bank are liaising together with the Bank for International Settlements (BIS), and they have created a group to share experiences as they assess the potential cases for central bank digital currency (CBDC) in their home jurisdictions; see Bank of England 2020, “Central Bank group to assess potential cases for central bank digital currencies”, 22 January.
- 54.
But there is another side of the moon: namely, cryptocurrencies minted by sovereign states, whose characteristics concerns from both a monetary standpoint and, more broadly, a financial stability one. This may be the case of CryptoRuble, whose coinage has been recently envisaged by Russia; see Kakushadze, Z. and Liew, J. K. S., 2018. “CryptoRuble: From Russia with Love” World Economics p. 165 ff.
- 55.
See Gupta, S. and Roy, A. K., 2011. “BRICS at the Gate: Modern International Monetary System in Conditions of Balanced Uncertainty” Journal of Emerging Knowledge on Emerging Markets; the authors represented that “Looking ahead, a 21st century international monetary order that is entirely de-anchored from gold and rests merely on the full faith and credit of its fiat money trustees will necessitate that its mechanisms of international coordination and adjustment to restore balance be ratcheted-upwards equivalently.”
- 56.
Since mining requires large amount of computational—and, thus, electric—power, its absence would clearly overcome one of the tallest barriers to such market.
- 57.
In particular, see Ganguly, M. and Delaney, M. 2018. “Unregulated Financial Markets and the Shadow Banking Narrative: China, India and the United States” Market Express, provided that, as well as highlighting recent initiatives being undertaken by government regulators such as the CFTC and SEC, to regulate virtual currencies such as the cryptocurrency markets, this paper highlights why the need to address unregulated financial markets—with particular focus on shadow banking activities, presents ever-growing concerns—not just for investors and regulators, but also in respect of their interconnectedness with other financial sectors.
- 58.
Neither federal nor state regulation has ever gone beyond, until the US government was involved in discussing issues regarding Facebook-backed cryptocurrency—namely, Libra—at the 2019 G7 summit in Biarritz, mainly at the initiative of France. The same is true for the euro area, where the relevant authorities are monitoring this phenomenon; see G7. 2019. “Biarritz Strategy for an Open, Free and Secure Digital Transformation” for the results of a discussion on the best strategies to promote an open, free and secure digital transformation, and reiterated the determination to protect it from current challenges.
- 59.
It refers to Mundell, R.A. 1961. “A theory of optimum currency areas”, The American Economic Review, p. 657 ff.
- 60.
The above reflects the considerations of Consob. 2018. “Lo sviluppo del FinTech. Opportunità e rischi per l’industria finanziaria nell’era digitale”, 1 March.
- 61.
Obviously, it refers to the content of such instruments and not to the applicability of Directive 2014/65/EU (MiFID II) and Regulation (EU) 600/2014 (MiFIR) to the relevant financial services.
- 62.
It refers to CCPs as entities that preside over clearing in a multilateral way, that is, taking long positions towards all sellers and short ones towards all purchasers in an exchange.
- 63.
It refers to CSDs as entities entrusted with the duty to store the securities involved in a transaction, albeit in a dematerialized, electronic format.
- 64.
It is worth considering that Gambaro, A. 1981. “Falsa luce agli occhi del pubblico” Rivista di diritto civile, 1981, fasc. 1, pt. 1, p. 84 ff. addressed this question with respect to the ‘false light in the public eye’ paradigma.
- 65.
In this sense, crypto-assets are treated as if they were akin to commodities more than to money, fuelling the idea that their categorization is far from certain.
- 66.
It recalls the study of Marchetti, P. 1981. “Le offerte pubbliche di sottoscrizione e la legge 216” Rivista delle società, fasc. 6, pp. 1137 ff. on the duty of privacy in case of offerings.
- 67.
It is worth recalling Nou, J. and Stiglitz, E., 2019. “Regulatory Bundling”, Yale Law Journal on the ability of administrative agencies to aggregate and disaggregate rules.
- 68.
It is worth considering Dang, T. V. and Gorton, G. B. and Holmström, B. R. and Ordoñez, G. 2014. “Banks as Secret Keepers” NBER Working Paper No. w20255, which pointed out that banks are optimally opaque institutions: they produce debt for use as a transaction medium (bank money), which requires that information about the backing assets—loans—not be revealed, so that bank money does not fluctuate in value, reducing the efficiency of trade. The same is not true form markets, so the oxymora to be regulated in this sector.
- 69.
In particular, see IFRS 2018. IASB update January 2018, available at www.ifrs.org IFRS 2016, Summary Note of the Accounting Standard Advisory Forum; FASB 2017. Report of the Chairman; EY 2018, IFRS (#). Accounting for Crypto-Assets, available at www.ey.com.
- 70.
In addition to this, it can be noted that a trade involving the settlement of a transferable security against cryptocurrencies could nevertheless be executed in the form of a free-of-payment security transfer by the CSD, whereas the crypto-asset leg would have to be settled separately. This is due to the rise of principal risk—that is, the component of the counterparty risk which is related to the other side failing to comply with its obligations—and, thus, due to the possibility of facing significant legal expenses.
- 71.
Moreover, see Cecchetti, S. G. and McCauley, R. N. and McGuire, P. M. 2012. “Interpreting TARGET2 Balances” BIS Working Paper No. 393, on the evidence for the current account financing interpretation. It is useful to consider that BIS international banking data points to the importance of TARGET2 balances as a symptom of a reduction by core European banks of credit previously extended to borrowers in peripheral Europe.
- 72.
Furthermore, Hristov, N. and Hülsewig, O. and Wollmershäuser, T. 2019. “Capital Flows in the Euro Area and TARGET2 balances” Deutsche Bundesbank Discussion Paper No. 24/2019, whose results suggest that the built-up of TARGET2 balances was mainly driven by capital flow shocks while being barely responsive to other aggregate shocks.
See also Minenna, M. 2019. “The New Eurozone Risk Morphology” SSRN Research Paper no. 3341540.
- 73.
In addition, it refers to Avgouleas, E. and Kiayias, A., 2018. “The Promise of Blockchain Technology for Global Securities and Derivatives Markets: The New Financial Ecosystem and the ‘Holy Grail’ of Systemic Risk Containment”. Edinburgh School of Law Research Paper No. 2018/43, with respect to the utility of complex FMI comprising long custodial chains and large global Central Counterparties (CCPs) for the operation of modern markets seems undisputable. The authors highlighted that “a shift in the technology paradigm with the introduction of DLT systems for securities and derivatives FMI, could, however, increase investor control, the efficiency of systemic risk distribution, and create a more diverse and resilient financial ecosystem”.
- 74.
Actually, only very safe assets are allowed to be used by CCPs to clear transactions executed pursuant to EMIR: namely, debt instruments issued or explicitly guaranteed by a government, a central bank, a multilateral development bank, the European Financial Stability Facility or the European Stability Mechanism. In this respect, see Peters, G. and Vishnia, G. 2016b. “Overview of Emerging Blockchain Architectures and Platforms for Electronic Trading Exchanges” SSRN: Research Paper no. 2867344, which provided an overview of the new exchange regulations appearing in different jurisdictions around the world, including EMIR, Dodd Frank, MiFID I/II, MiFIR, REMIT, Reg NMS and T2S.
See also Peters, G. and Vishnia, G. 2016a. “Blockchain Architectures for Electronic Exchange Reporting Requirements: EMIR, Dodd Frank, MiFID I/II, MiFIR, REMIT, Reg NMS and T2S” SSRN Research Paper no. 2832604 in regard to transparency reporting and trade/transaction reporting requirements under the regulations mentioned above.
- 75.
See Committee on the Global Financial System and Financial Stability Board 2017. “FinTech credit: Market structure, business models and financial stability implications”, whose conclusions provide that “the emergence of FinTech credit markets poses challenges for policymakers in monitoring and regulating such activity. Having good-quality data will be key as these markets develop”.
- 76.
It is worth mentioning the study of Consolo, G. 1975. “Informazione, riservatezza e calcolatori elettronici. aspetti sociologici e giuridici” Amministrazione e politica, fasc. 2–3, p. 240 ff.
- 77.
In addition, it is worth recalling also the FSB 2017b. “FinTech credit. Market structure, business models and financial stability implications”. Report prepared by a Working Group established by the Committee on the Global Financial System (CGFS) and the Financial Stability Board (FSB), 22 May.
- 78.
See Flick, G. M. 1991. “Insider trading: una tappa significativa—anche se controversa—della lunga marcia verso la trasparenza”. Rivista delle società, fasc. 4, p. 957 ff. on the difficulties of the repression of the insider trading, in the perspective of the damage, and thus his conclusion on the alternative of protection of the “par condicio”, by shifting from abuse to violation of the obligation to abstain (with regard to the emblematic, educational and ethical meaning of repression).
- 79.
They should include (i) technological integrity, meaning, inter alia, no back doors/loopholes or hidden functionalities, no white listing of malware, no fraudulent collusion, responsible cryptographic key management, and the pursuit of the state of the art; (ii) algorithms/protocol service performance and transparency so as to ensure the correct performance of the service and facilitate any necessary audit; (iii) stress-tested operational security and cyber-resilience; (iv) regulatory compliance intended as audibility by users and supervisors in line with the regulatory obligations/requirements that may be triggered by participation in or use of the network.
- 80.
- 81.
In particular, it refers to EBA 2019. Report on crypto-assets, available at www.eba.europa.eu and to ESMA 2019, Advice on initial coin offerings and crypto-assets, available at www.esma.europa.eu.
- 82.
In fact, prices are often denominated in dollars, and their equivalent figures in bitcoins are updated along with the USD/BTC floating exchange rate, such that vendors manage to collect the desired amount of dollars. Actually, since the value of bitcoin—as well as any other cryptocurrency—is marked-to-market, whereas retail prices inevitably show a certain degree of “stickiness”, figures expressed in USD and BTC cannot be but (slightly) different. See again Lo, S. and Wang, J. 2014. “Bitcoin as Money?” published by Federal Reserve Bank of Boston.
- 83.
As clearly descends from the above, in this case it refers to the same “dignity” to either of the two major functions, as cryptocurrencies are acknowledged to create money without central banks and facilitate payments without financial institutions; see World Bank 2018, “Cryptocurrencies and blockchain”, available at www.documents.worldbank.org.
- 84.
See again the World Bank 2018, “Cryptocurrencies and blockchain”, available at www.documents.worldbank.org.
- 85.
It refers to Zeno-Zencovich V. and Zoppini A. 1992. “La disciplina dei servizi telematici nel quadro delle proposte comunitarie di tutela dei dati personali” Il diritto dell’informazione e dell’informatica, fasc. 3, p. 755 ff. on the certain relevant aspects for telematic services: information privacy, marketing, commercial information; the authors analysed the SYN 288 Directive with respect to its guidelines and elements of aporia and identified the provisions applicable to ICT services.
- 86.
It recalls World Bank 2018. “Cryptocurrencies and blockchain”, available at www.documents.worldbank.org.
- 87.
With regard to this, strong empirical evidence backs the commonly shared idea that digital coins are mainly intended as a store of value: for instance, by analysing data up to May 2012, it has been pointed out that about half of bitcoin stock was not spent within at least three months after having been received (World Bank, op. cit.); see Shamir, A. 2013. “Quantitative analysis of the full bitcoin transaction graph” “Financial Cryptography and Data Security” Berlin-Heidelberg.
- 88.
It refers, in particular to Ofek, E. and Richardson, M. 2003. “Dotcom mania: The rise and fall of internet stock prices” The Journal of Finance, p. 1113 ff.
- 89.
See World Bank 2018. “Cryptocurrencies and blockchain”, available at www.documents.worldbank.org.
- 90.
It is worth considering Markesinis, B and Alpa, G. 1997. “Il diritto alla “privacy” nell’esperienza di “common law” e nell’esperienza italiana” Rivista trimestrale di diritto e procedura civile, fasc. 2, p. 417 ff. in which the authors refer to the experience of English and American common law, in the field of the right to “privacy”, and to the German system, also with reference to concrete cases on which the jurisprudence has been pronounced. Particular attention is paid to the criteria followed by the German jurisprudence in determining the damage and to the other recognized remedies of protection (publication of a statement to the contrary, of a defeat or of a correction).
- 91.
The fact that trading is concentrated in a few exchanges worldwide should not be regarded as something negative, for the situation is not much different from that of equities in the United States before the Securities and Exchange Commission (SEC) adopted an ad hoc regulation, back in 2005, to increase competition. In fact, there exists a positive association between the number of trades and the degree of liquidity, such that having a small number of venues where transactions be executed (thus, with greater “intensity” of trades) is doubtlessly beneficial from a liquidity standpoint.
- 92.
Also, upon its first-ever minting, bitcoin was so illiquid that it debuted with a price very close to zero, and it basically took nine years to experience a bubble situation in which its price substantially diverged from fundamental value; see Kristoufek, L. 2015. “What are the main drivers of the Bitcoin price? Evidence from wavelet coherence analysis” PLoS One; Phillips, R.C. and Gorse, D. 2017. “Predicting cryptocurrency price bubbles using social media data and epidemic modelling”, IEEE Symposium Series on Computational Intelligence (SSCI).
- 93.
It is worth recalling the conclusions of Bessone, M. 1978 “L’esperienza francese del diritto alla intimità della vita privata”. Politica del diritto, fasc. 3, p. 335 ff.
- 94.
See Zaring, D. and Bignami, F. 2016. “Comparative Law and Regulation. Understanding the Global Regulatory Process”. Northampton, MA, USA, considers that “dissatisfaction with some of the more classic forms of rulemaking and enforcement has given rise to calls for more flexible arrangements that rely more heavily on soft law and private initiative in crafting the standards and control mechanisms designed to discipline the market and society”.
- 95.
In particular, see Clarich, M. 1996. “Diritto d’accesso e tutela della riservatezza: regole sostanziali e tutela processuale” Diritto processuale amministrativo, 1996, fasc. 3, p. 430 ff. with respect to the objective and subjective scope of the right of access and the relationship between the right of access and administrative secrecy, who focused on the need to reconcile the right of access with the right of confidentiality of third parties.
- 96.
It refers to EUCJ, Sec. V, 4 October 2018, n. 191, C-191/17, published in Giurisprudenza commerciale, 2019, with the comment of Greco, G. “Il conto che non opera con terzi non è un conto di pagamento. Note critiche alla sentenza C-191/17 della Corte di Giustizia dell’Unione Europea”.
- 97.
It is worth recalling the considerations of Lemma, V. 2015 “Too big to be popular”, “La riforma delle banche popolari” Padova, p. 173 ff.
- 98.
In addition, see Van Loo, R. 2018. “Making Innovation More Competitive: The Case of Fintech” UCLA Law Review, which highlights that “Competition authority—including antitrust and the extension of business licenses—is spread across at least five regulators. Each is focused on other missions or industries. The Federal Reserve and other prudential regulators prioritize financial stability, which conflicts with their competition mandate. The Department of Justice (DOJ), hindered by statutes and knowledge gaps, devotes significantly fewer resources to banking than to other industries in merger review. No regulator has the right authority, motivation, and expertise to promote competition in consumer finance”.
- 99.
It is worth mention Ferrarini, G. 2000. “Osservazioni in merito alla disciplina della concentrazione degli scambi azionari” Banca impresa società, p. 281 ff.
- 100.
See Di Maggio, M. and Egan, M. and Franzoni, F. A. 2019. “The Value of Intermediation in the Stock Market” CEPR Discussion Paper No. DP13936, which used an empirical model to investigate the unbundling of equity research and execution services related to the MiFID II regulations.
See also Burilov, V., 2019. “Regulation of Crypto Tokens and Initial Coin Offerings in the EU” European Journal of Comparative Law and Governance p. 146 ff.; the author argued that EU regulators should first ensure legal certainty by defining the scope of tokenised financial instruments subject to MiFID.
- 101.
In fact, although bitcoin keeps the first-mover advantage, its competitors—collectively known as “altcoins”—are advertising their differences vis-à-vis the dominant cryptocurrency, and the level of safety is one of the characteristics that are likely to be more appealing.
- 102.
It refers to OECD 2018. “How to deal with Bitcoin and other cryptocurrencies in the System of National Accounts?” Meeting of the Working Party on Financial Statistics, 5 November.
- 103.
It is crystal-clear that such definition might theoretically throw shares outside of the scope of financial assets, but the OECD (ibidem) notes that the ‘claim’ is that on the residual value of a corporation in case it being wound up, something which is explicitly encompassed by the legal agreement underlying the share purchase, regardless of the timing of liquidation. Instead, the SNA acknowledged “monetary gold” as the sole exception to the definition above.
- 104.
However, this should not be taken literally: in fact, fiat currencies are generally not backed by any commodity such that coins may be physically redeemed.
- 105.
See OECD 2018. “How to deal with Bitcoin and other cryptocurrencies in the System of National Accounts?” Meeting of the Working Party on Financial Statistics, 5 November.
- 106.
Especially in the past, “helicopter money” was much more common: that is, new currency was just “printed”, without incurring any direct expense apart from printing itself. This is a practice that many countries—particularly underdeveloped or emerging ones—still refuse to completely rule out, as it may easily end up stirring inflationary spirals.
- 107.
For instance, the Venezuelan bolívar and the Zimbabwean dollar, both suffering from hyperinflation; see Zalduendo, J., 2006. “Determinants of Venezuela’s Equilibrium Real Exchange Rate” IMF Working Paper; Miller, S. M. and Ndhlela, T. 2019. “Money Demand and Seignorage Maximization before the End of the Zimbabwean Dollar” Mercatus Research Paper no. 3329378.
- 108.
See Manaa, M. et others. 2019. “Crypto-Assets: Implications for Financial Stability, Monetary Policy, and Payments and Market Infrastructures” ECB Occasional Paper No. 223, which summarizes the outcomes of the analysis of the ECB Crypto-Assets Task Force.
- 109.
Moreover, see Zaring, D. and Bignami, F. 2016. “Comparative Law and Regulation. Understanding the Global Regulatory Process”. Northampton, MA, USA, offered the evidence that “the variation of the legal powers, procedures and standards that bind regulators … provides crucial context or the understanding and evaluation of a global phenomenon”.
- 110.
See again the clear statement of Mersch, Y. 2019, “Money and private currencies: Reflections on Libra. Speech by Member of the Executive Board of the ECB”, at the ESCB Legal Conference, Frankfurt am Main, 2 September.
- 111.
Namely, Sygnum and Seba: see Allen, M. 2019, “World’s first crypto banks seen as game changer for Switzerland”, appeared on Swissinfo.ch on 27 August 2019.
- 112.
- 113.
Also, these intermediaries committed themselves to blazing the trail for the rise of a new generation of credit institutions fully devoted to the ‘crypto-’economy, based on managing and transacting crypto-assets thanks to the benefits provided by blockchain-based frameworks.
- 114.
It refers to Swiss Federal Council, Federal Council report on virtual currencies in response to the Schwaab (13.3687) and Weibel (13.4070) postulates, 25 June 2014.
- 115.
In its response to the Béglé motion on 15 November 2017, the Federal Council promised that State Secretariat for International Financial Matters (SIF) would set up such a working group because blockchain technology gives rise to fundamental legal issues concerning both financial market law and general pieces of legislation (Code of Obligations, Swiss Civil Code, etc.); see State Secretariat for International Financial Matters (SIF) 2018 “Blockchain/ICO working group established”. Bern, 18 January.
- 116.
In addition, see Confederazione Svizzera—Working Group Blockchain / ICO (2018) “Consultation on the work of the Working Group Blockchain / ICO”, August 2018, where the Group represented that “clarifying the regulatory framework—both, with respect to civil law as well as financial regulation issues—shall contribute to maintaining Switzerland’s position as an attractive location for blockchain/ICOs, with high standards in the area of market conduct”.
- 117.
In particular, it recalls Goanta, C. 2018. “How Technology Disrupts Private Law: An Exploratory Study of California and Switzerland as Innovative Jurisdictions” Stanford-Vienna TTLF Working Paper No. 38/2018 with respect to the evidence that “Law generally reacts to such developments only if there are circumstances (e.g. case law) showing how existing legal categories might not adequately accommodate these technological developments”.
See also Gurrea-Martínez, A. and Remolina, N. 2019. “The Law and Finance of Initial Coin Offerings” Ibero-American Institute for Law and Finance Working Paper No. 4/2018, which represented that “securities regulators are addressing this issue in a very different manner across jurisdictions: while countries like the United States, Switzerland and Singapore are requiring companies to comply with existing securities rules only when a company issues ‘security tokens’, other jurisdictions, such as China and South Korea, have prohibited ICOs, and Mexico subject any issuance of tokens to a system of full control ex ante”.
- 118.
In the end, some authors regard the blockchain as nothing more than an overly complex and expensive method of sending information, whose sole actual benefit lies in evading regulation; see Haney, B. S. 2019. “Blockchain: Post-Quantum Security & Legal Economics”, SSRN Research Paper no. 3444695.
- 119.
Furthermore, see Flick G. M., 1988. “Informazione bancaria e giudice penale: presupposti di disciplina, problemi e prospettive” Banca borsa e titoli di credito, fasc. 4–5, pt. 1, p. 441 ff., which anticipates the current debate on the disagreement between judges and banks in the field of information management, and the risks of its radicalization. The prospects and possibilities of overcoming this contrast should be found within the framework of the new techniques of the fight against crime and the management of banking information. Hence, the author questioned the assumptions and the current structure of the so-called banking secrecy in criminal matters, in the perspective of a balance between the requirements of transparency, confidentiality and efficiency that it involves.
- 120.
Among the most recent and remarkable ones, it is possible to quote the crash affecting the Dow Jones index on 6 May 2010 and the one occurred to the pound sterling on 7 October 2016.
- 121.
This is pursuant to Reg. (EU) 648/2012, commonly known as the European Market Infrastructure Regulation (EMIR).
- 122.
It is worth mentioning Taskinsoy, J. 2019, “Facebook’s project Libra: Will Libra sputter out or spur central banks to introduce their own unique cryptocurrency projects?”, SSRN Research Paper 3423453.
- 123.
Therefore, by analysing their social media behaviour, Facebook would find relatively easy to collect data on the clients’ financial habits, well in advance of Libra’s establishment; in turn, this would allow the company to get unduly advantaged from a competitive standpoint, too raising significant antitrust concerns. In summary, upon the commencement of Libra, the company headquartered in Menlo Park would gain a dominant position and get financial benefits from its exploitation, based upon a much larger and more complete dataset vis-à-vis both other social media companies and cryptocurrency minters as well.
- 124.
On the one hand, the fact that Libra will be promoted by an MNE whose core business consists of big data should help overcome the diffidence over the possibility to regard such crypto-ones as traditional currencies, for the level of public trust in Libra would be significantly higher vis-à-vis that experienced by other cryptocurrencies: in turn, this would enhance all three major functions of money. On the other hand, it would raise some unescapable legal questions. First, over the degree in which privacy legislation may be enforced: even in the management of its social network, the company has consistently shown little regard for it, even with consequences at a geopolitical level: see Trautman, L.J. 2014, “Virtual currencies; Bitcoin & what now after Liberty Reserve, Silk Road, and Mt. Gox?” Richmond Journal of Law and Technology, p. 1 ff.
- 125.
Perhaps surprisingly, the absence of trust in banks is cited very often as a reason for self-exclusion from the banking circuit, as long as an overall majority of these people, in the United States as of 2017, has actually never considered to open a bank account (Taskinsoy, op. cit.). The paper presents the findings of an enquiry conducted biennially by the Federal Deposit Insurance Corporation (FDIC).
- 126.
Thus, a credible commitment should be taken by regulators well before the academic debate on the nature of cryptocurrencies build any consensus.
- 127.
Also, the issue deals with access to finance for large crowds of “unbanked” subjects, either natural or juridical persons, which are actually experiencing—or will potentially experience—a surge in their financial viability by transacting cryptocurrencies.
- 128.
Whether this occurs, the oversight of subjects might well fail to make all the “sunk” part of the iceberg come to surface, for it would impair the economic meaning of such transactions and, thus, alter both the market structure and the business of those subjects, in their conduct and their performance as well.
- 129.
It remarks the considerations of Ferri G. B. 1982. “Persona e privacy” Rivista del diritto commerciale fasc. 1–4, pt. 1, p. 75 ff. on the data protection as an individual right.
- 130.
It clearly needs something more: and this is needed in a way which possibly preserve the benefits of a high degree of privacy and a good degree of integrity, ensured by blockchain in spite of the all the operational risks associated with every ICT technology. It just needs a consistent regulation to address the dangers, rather than any “retaliatory” approach against crypto-users who have benefitted from the positive aspects of said innovation.
- 131.
This ignores fiscal issues: also, because they largely depend upon the regulatory categorisation.
- 132.
The monetary history of the twentieth century shows that systems of fixed exchanges based on determining specific narrow bands wherein exchange rates may float—such as the ‘gold exchange standard’ designed in Bretton Woods, or the European ERM with its predecessors—may suffer greatly if threatened by external events, such as oil shocks or speculative attacks; yet they generally manage to ensure very long periods of stability.
- 133.
This means that there is still long way to go. Opportunities and threats encompassed by cryptocurrencies need an even deeper investigation. The landscape is beautiful and appealing, yet its inhabitants are not always the best possible ones, including regulators with their lazy and often wrong-headed approach. In a famous Shakespeare’s phrase: O brave new world / That has such people in’t! (The Tempest, 1611; Act 5, Scene 1).
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Lemma, V. (2020). Fintech and Money. In: FinTech Regulation. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-42347-6_7
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