Explained | What is the EU’s new crypto-legislation?

The story so far: The European Parliament, the legislative body of the 27-country block European Union, has approved the world’s first set of comprehensive rules to bring largely unregulated cryptocurrency markets under the ambit of regulation by government authorities. The regulation called the Markets in Crypto Assets (MiCA), will come into force after formal approval by member states.

Why regulation?

According to Chainalysis, about 22% of the global crypto industry was concentrated in central, northern, and western Europe, which received $1.3 trillion worth of crypto assets. Having a comprehensive framework like MiCA for 27 countries in Europe not only harmonises the crypto industry but also gives the EU a competitive edge in its growth compared to the U.S. or the U.K. which lack regulatory clarity. More importantly, 2022 saw some of the biggest failures and wipeouts in the crypto industry involving bankruptcies and fraud scandals, be it the collapse of the crypto exchange FTX and its spat with Binance or the failure of Terra LUNA cryptocurrency and its associated stablecoin. The liquidity shortage caused by these shocks led other crypto-lending platforms to halt customer transfers and withdrawals before filing for bankruptcy.

As investments and the size of the crypto industry grow, European and other regulators have felt the need to bring governance practices in crypto firms to ensure stability and financial sector-like rout and contagion. European Parliament member Stefan Berger, who is the lead for the MiCA regulation explained that the law will protect consumers against deception and fraud, and “the sector that was damaged by the FTX collapse can regain trust”.

What kind of assets will MiCA cover?

The MiCA legislation will apply to ‘cryptoassets’, which are broadly defined in the text as “a digital representation of a value or a right that uses cryptography for security and is in the form of a coin or a token or any other digital medium which may be transferred and stored electronically, using distributed ledger technology or similar technology”. This definition implies that it will apply not only to traditional cryptocurrencies like Bitcoin and Ethereum but also to newer ones like stablecoins.

Stablecoins are digital tokens that aim to stay pegged in value with a more stable asset — a fiat currency like the U.S. dollar or other stable cryptocurrencies. MiCA will establish new rules for three types of stablecoins — asset-referenced tokens, which are linked to multiple currencies, commodities, or cryptocurrencies, e-money Tokens, which are linked to a single currency and utility tokens, which are intended to provide access to a good or service that will be supplied by the issuer of that token.

As for the assets that will be out of MiCA’s scope, it will not regulate digital assets that would qualify as transferable securities and function like shares or their equivalent and other crypto assets that already qualify as financial instruments under existing regulation. It will also, for the most part, exclude nonfungible tokens (NFTs). MiCA will also not regulate central bank digital currencies issued by the European Central Bank and digital assets issued by national central banks of EU member countries when acting in their capacity as monetary authorities, along with cryptoassets-related services offered by them.

What are the new rules?

MiCA will impose compliance on the issuers of crypto assets, who are defined as the “legal person who offers to the public any type of crypto-assets”. It will apply to crypto-asset service providers (CASPs) providing one or more of these services — the operation of a trading platform like CoinBase, custody, and administration of crypto assets on behalf of third parties (customers), the exchange of crypto assets for funds/other crypto-assets, the execution of orders for crypto assets, the placing of crypto assets, providing transfer services for crypto assets to third parties, providing advice on cryptoassets and crypto-portfolio management.

The regulation prescribes different sets of requirements for CASPs depending on the type of cryptoassets. The base regime will require every CASP to get incorporated as a legal entity in the EU. They can get authorised in any one member country and will be allowed to conduct their services across the 27 countries. They will then be supervised by regulators like the European Banking Authority and the European Securities and Markets Authority, who will ensure that the companies have the required risk management and corporate governance practices in place. CASPs will have to demonstrate their stability and soundness, ability to keep the funds users safe, implementation of controls to ensure they are not engaging in proprietary trading; avoidance of conflicts of interest, and their ability to defend against market abuse and manipulation.

Besides authorisation, service providers of stablecoins also have to furnish key information in the form of a white paper mentioning the details of the crypto product and the main participants in the company, the terms of the offer to the public, the type of blockchain verification mechanism they use, the rights attached to the cryptoassets in question, the key risks involved for the investors and a summary to help potential purchasers make an informed decision regarding their investment. Issuers of stablecoins will also be required to maintain sufficient reserves corresponding to their value to avoid liquidity crises. Those stablecoin firms pegged to non-euro currencies will have to cap their transactions at a daily volume of €200 million ($220 million) in a specified region.

Another legislation passed with MiCA requires crypto companies to send information of senders and recipients of cryptoassets to their local anti-money laundering authority, to prevent laundering and terror financing activities.

What has been the reaction?

Leaders at some of the biggest cryptocurrency firms have taken exception to some aspects of MiCA but the broad view is that it is better to have a regulatory framework than having no rules at all and attracting regulatory action on a case-by-case basis without clarity.

Meanwhile, since it’s been three years since MiCA has been in development, some experts feel that the regulation is already laggard in covering newer vulnerabilities in the crypto industry. For instance, it does not cover practices like crypto staking and lending, which led to some of the industry’s biggest failures last year. A Bloomberg analysis notes that MiCA also does not cover NFTs or decentralised finance, which is prone to hacks and fraud because it’s managed by code rather than humans.

How is crypto regulated in India?

India is yet to have a comprehensive regulatory framework for crypto assets. A draft legislation on the same is reportedly in the works.

A full-fledged regulation aside, the Indian government has taken certain steps to bring cryptocurrencies under the ambit of specific authorities and taxation. In the Union Budget for 2022, the Finance Ministry said that cryptocurrency trading in India has seen a “phenomenal increase” and imposed a 30% tax on income from the “transfer of any virtual digital asset.” In March this year, the government placed all transactions involving virtual digital assets under the purview of the Prevention of Money Laundering Act (PMLA).

However, statements by ministers and bureaucrats after the Budget seem to suggest that the legality of cryptocurrencies in the country is still a grey area. India is now calling for consensus in the G20 grouping, where it currently holds the presidency, to have a globally coordinated policy response on crypto assets that takes into consideration the full range of risks, including those specific to emerging markets and developing economies.

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The Disappearing Act of Nishad Singh, FTX Billionaire

Nishad Singh served on the board of the firm’s philanthropic arm. (File)

The rallying cry of the scorned crypto faithful, which started when FTX spiraled into bankruptcy, has taken on added seriousness after Sam Bankman-Fried was arrested in the Bahamas and charged with eight criminal counts in the US.

“Where is Gary Wang?”

Wang, an ex-Google software engineer, had established a reputation – both internally and outside the firm – as a quiet fixer and the brains behind the FTX crypto empire. Media-shy and prone to work odd hours, the exchange’s co-founder cultivated an aura of mystery that served as a stark contrast to the more high-profile Bankman-Fried.

Wang, like Bankman-Fried, was also once one of the richest twentysomethings on the planet – with a stake in the business worth as much as $1.6 billion in March, according to the Bloomberg Billionaires Index.

He’s still in the Bahamas, according to a person familiar with the matter. And, as Bankman-Fried would tell Vox: “Gary is scared.”

Bankman-Fried’s arrest, made at the request of the US government, underscores the urgency among authorities to crack down on one of the crypto industry’s biggest implosions, which has left some 1 million customers in limbo. Though Bankman-Fried served as the public face of FTX, it was a tight-knit inner circle – him, Wang, Caroline Ellison and Nishad Singh – who are said to have been aware of the decision to use FTX customer money to help Alameda meet its debts. That decision ultimately doomed FTX and strikes at the heart of whether they committed fraud.

Neither Wang nor Singh, both of whom were fired a week after FTX’s bankruptcy, has surfaced in the month after the epic collapse – nor have they been charged. It’s not clear whether either have lawyered up, in contrast with Ellison, who hired Stephanie Avakian, former enforcement division chief at the Securities and Exchange Commission, along with others at WilmerHale.

In the case of Singh, the 27-year-old director of engineering who grew up in California, it’s not even known where he’s currently holed up.

The disappearance act is a departure from the outsized roles they played at FTX, especially as Bankman-Fried became a more public figure advocating for pandemic preparedness and regulatory changes.

“FTX Group’s collapse appears to stem from the absolute concentration of control in the hands of a very small group of grossly inexperienced and unsophisticated individuals,” John J. Ray III, FTX’s newly appointed chief executive officer, said in prepared remarks to the House Financial Services Committee this week.

Bankman-Fried was charged with criminal counts including conspiracy and wire fraud in an indictment unsealed by a federal court judge in Manhattan Tuesday. The Commodity Futures Trading Commission filed a complaint Tuesday, in which Bankman-Fried was the only listed individual defendant. The Securities and Exchange Commission also targeted just Bankman-Fried.

Wang didn’t respond to phone calls, emails and text messages seeking comment. Singh didn’t respond to emails and Telegram messages requesting comment.

Where’s Gary?

While “Where is Gary Wang?” has become a frequent question on Twitter and Reddit message boards in the wake of FTX’s collapse, it was also what some inside the firm were asking during the chaotic days before the exchange went bust.

Rather than looking to Bankman-Fried’s Twitter ramblings for solace, some employees instead sought reassurance from the actions of Wang and particularly Singh, who was known as an attentive manager.

But, in an ominous sign of what was to come, they were nowhere to be found.

On a Slack channel for urgent engineering issues, messages that would normally get a response in a matter of minutes would go unanswered for a day, according to a person familiar with the matter. As FTX’s general counsel, Ryne Miller, pleaded for Bankman-Fried and other founders to cooperate, Wang would barely respond, according to internal discussions seen by Bloomberg.

“Gary is scared, Nishad is ashamed and guilty,” Bankman-Fried would tell Vox less than a week later, in a conversation he claims wasn’t meant to be public. His biggest mistake, he insisted, was filing for bankruptcy at all.

Perhaps his best shot to fix what he’d done? “Either Gary or Nishad comes back,” he said.

They didn’t. Now Bankman-Fried is being held in custody pending an extradition process, the Bahamas attorney general, Ryan Pinder, said on Monday. The SEC on Tuesday accused him of carrying out a multi-year scheme to defraud investors, with Chair Gary Gensler calling his crypto empire “a house of cards on a foundation of deception.”

Brilliant Coder

Bankman-Fried and Wang, who met at math camp in high school and were roommates at Massachusetts Institute of Technology, remained close at FTX. At one point, after Bankman-Fried hadn’t been seen in the office for a while, he returned and explained to employees that he’d been absent because he just wanted to work alongside Wang, who, unlike him, could code, according to a person familiar with the matter.

Wang is brilliant “beyond belief,” Singh, who was mentored by him and worked with him in Hong Kong on the development of FTX’s exchange, said in a 2020 podcast. A now-deleted blog post celebrating FTX’s first anniversary features a photo of Wang reclined with his feet on his desk, sporting a fleece and jeans in front of six large computer screens.

It’s one of the few pictures available of Wang. He had the second-largest position in FTX.US behind Bankman-Fried, according to court documents, and also the second-biggest stake in Alameda, with about 10 per cent. He also borrowed $224.7 million from the trading house, according to the complaint filed by the SEC.

Bankman-Fried and Wang controlled access to FTX’s digital assets, according to a document filed by Ray. He said the company’s “unacceptable management practices” included the use of software to conceal the misuse of customer funds.

Bankman-Fried disputed that he, Ellison, Singh and Wang decided to use FTX customer funds to cover Alameda’s shortfall, which, if true, could mean they committed fraud. He said the executives held a meeting about whether to extend more credit to Alameda – though the distinction is hard to parse.

“That was the point at which Alameda’s margin position on FTX got, well, it got more leveraged substantially,” Bankman-Fried said in an interview with Bloomberg. “Obviously, in retrospect, we should’ve just said no.”

Kindness King

Other than Bankman-Fried, Wang didn’t seem to have many friends at the company, according to a person familiar with the matter. Singh, a high school friend of Bankman-Fried’s brother who overcame asthma to set a world record for the fastest 100-mile run by a 16-year-old, was more social and well-liked by his colleagues.

“In addition to building out much of our technological infrastructure and managing most of our dev team, his treatment of employees has earned him sole membership in our Slack group ‘Kings of Kindness,'” Bankman-Fried wrote in the FTX blog post.

Singh held a 7.83 per cent stake in the business silo that included FTX.US, which was worth about $572 million in March 2022, and received a $543 million loan from Alameda, according to bankruptcy documents. He was likely one of the five co-workers that Bankman-Fried pegged as a billionaire when asked earlier this year.

Singh had said working at the firms allowed him to make more money to give away – a tenet of the effective altruism movement – and that he was considering working for a charity in the future to “do the right thing” to make the world better.

“Currently, I’m sort of lucky that I can get fulfilled in many ways at this job – one of which is doing something that’s probably pretty good from an effective altruist perspective,” he said in a 2020 podcast.

A former FTX employee said it was shocking to see Singh, who served on the board of the firm’s philanthropic arm, at the center of the implosion. Another described their feelings as more heartbroken than angry that Singh reportedly knew customers funds were used to bail out Alameda.

FTX’s collapse “hit him hard,” Bankman-Fried said of Singh in his Vox interview.

“I mean it hit all of us hard,” he said. “But it hit him HARD.”

If Singh were ashamed and guilty, as Bankman-Fried put it, there are few signs he sought to make amends so far as FTX’s bankruptcy unfolds.

“We had no cooperation of the founders in preparing,” Ryne Miller, FTX’s general counsel, said in response to an issue raised with the company’s bankruptcy process last month, according to internal chat logs. “It was unfortunate.”

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

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