The American Bar Association Business Law Section recently published a nearly 470-page white paper on “Digital and Digitized Assets: Federal and State Jurisdictional Issues. The white paper was drafted by the section’s Derivatives and Futures Law Committee and provides a comprehensive survey of the regulation of crypto-currencies and other digital assets to assist legal practitioners, policy makers and others interested in digital assets.
The white paper also summarizes “the existing federal and state regulatory regimes governing digital assets in the United States, discusses the emerging issues that affect digital asset markets and their participants and outlines analogous efforts taken by international regulators and other national governments.”
Revised from the original March 2019 white paper and a December 2020 update, the paper has been “significantly updated to reflect material developments.” Parts of the discussion in the paper are specific to a particular type of digital asset referred to as virtual currencies or cryptocurrencies, because they have received the most attention from U.S. and global regulators.
The white paper provides:
• Updates on digital and blockchain technologies, including recent developments in Web 3.0 and decentralized finance;
• Analysis of the application of the Commodity Exchange Act and federal securities laws to transactions in digital assets and crypto-currencies;
• Analysis of the current positions and recent enforcement actions of the U.S. Commodity Futures Trading Commission (CFTC) and the U.S. Securities and Exchange Commission (SEC) in this area;
• Analysis of the legal processes available to the CFTC and SEC to resolve the problematic issues arising from their overlapping and potentially conflicting authority;
• Analysis of the role and positions of the Financial Crimes Enforcement Network of the Treasury Department;
• A survey of state laws regulating transactions in digital assets and crypto-currencies; and
• An analysis of approaches that the United Kingdom, the European Union, key Caribbean countries and countries in Asia have taken to regulating these products.
The white paper was prepared with the goal of providing a resource and analytical framework for considering, among others, potential issues of jurisdictional overlap between the CFTC and SEC.
The white paper also summarizes “the existing federal and state regulatory regimes governing digital assets in the United States, discusses the emerging issues that affect digital asset markets and their participants and outlines analogous efforts taken by international regulators and other national governments.”
Revised from the original March 2019 white paper and a December 2020 update, the paper has been “significantly updated to reflect material developments.” Parts of the discussion in the paper are specific to a particular type of digital asset referred to as virtual currencies or cryptocurrencies, because they have received the most attention from U.S. and global regulators.
The white paper provides:
• Updates on digital and blockchain technologies, including recent developments in Web 3.0 and decentralized finance;
• Analysis of the application of the Commodity Exchange Act and federal securities laws to transactions in digital assets and crypto-currencies;
• Analysis of the current positions and recent enforcement actions of the U.S. Commodity Futures Trading Commission (CFTC) and the U.S. Securities and Exchange Commission (SEC) in this area;
• Analysis of the legal processes available to the CFTC and SEC to resolve the problematic issues arising from their overlapping and potentially conflicting authority;
• Analysis of the role and positions of the Financial Crimes Enforcement Network of the Treasury Department;
• A survey of state laws regulating transactions in digital assets and crypto-currencies; and
• An analysis of approaches that the United Kingdom, the European Union, key Caribbean countries and countries in Asia have taken to regulating these products.
The white paper was prepared with the goal of providing a resource and analytical framework for considering, among others, potential issues of jurisdictional overlap between the CFTC and SEC.
