The FCA's consultation on proposed changes to the 'safeguarding' rules for non-bank payment service providers makes you wonder who's been responsible for supervising the 24 year old sector. The regulatory regime has been under the FCA's direct supervision since it took over from the beleaguered Financial Services Authority in 2013. The sector comprises over 1,200 firms and processed £1.9 trillion in payment transactions in 2023. Electronic money (basically prepaid stored value that's used for making e-payments to others) represents about £1 trillion of these volumes, issued by 250 firms. Some e-money balances, such as those relating to prepaid card programmes, are significant and held for long periods.
E-money is supposed to be issued on receipt of funds, and to be 'redeemable' on demand, at 'par value'. So, if you pay £1 to the issuer, it should immediately credit your online payment account in its systems with £1 and that balance should continue to be 'worth' 1 GBP when you transfer, spend or withdraw it. You have the regulatory right to withdraw - or 'redeem' - your e-money balance on demand.
But e-money balances (like other non-bank payment flows) are not subject to the deposit guarantee under the Financial Services Compensation Scheme that backs bank deposits (up to a limit of £85,000 for all your deposits with the one bank). Instead, the right to redeem your e-money at par is underpinned by a regulatory obligation on the issuer to safeguard the corresponding amount of cash in GBP in a designated bank account, separate from its own funds (or with insurance), so that the funds are available to pay out immediately on demand.
Other types of non-bank payment service provider (payment institutions) must also safeguard customer funds, but they're only supposed to hold funds for as long as it takes to execute/process the related payment order, rather than allow their customers to hold an ongoing balance, so the time during which the funds are 'at risk' of the PSP going bust or dissipating the funds should be shorter than for e-money balances.
What's the immediate problem (opportunity)?
The FCA admits in its consultation paper that it does not know whether firms are failing to fully safeguard funds corresponding to the payment transactions they process or the e-money they issue. Worse, it reveals that in the 5 insolvencies of e-money institutions from 2018-2023 only 20% of funds were available and it took over 2 years on average time for an administrator to distribute the first round of customers' balances...
This seems to echo what happened when the value of Tether's USDT 'stablecoins' - which aim to trade at parity with the USD - de-pegged from the USD. The scenario presented traders with an arbitrage opportunity: some borrowed amounts in a rival stablecoin and bought USDT at a discounted rate, betting that if USDT returned to its 1:1 peg, they could sell their USDT at parity and repay their loans at a profit.
In principle, there may be little difference between a right to redeem an 'e-money' balance in an online account and a 'fiat-backed stablecoin'. Indeed, the EU regulates fiat-backed stablecoins in the same way that it regulates e-money, while the FCA suggests they should be regulated differently, as recently discussed on LinkedIn.
Could there be an 'arbitrage opportunity' between balances issued by different e-money issuers, based on the extent of their safeguarding and availability of the balances?
Why Doesn't the FCA Make Firms Reveal How Much is Safeguarded At All Times?
Alarmingly, the FCA says the problem arises from firms not understanding how to safeguard, as well as "challenges in supervision and enforcement":
33. In some firm failures there has been evidence of safeguarding failings which put client funds at risk and resulted in shortfalls. The current light-touch regime around [FCA!] reporting requirements means that supervisors have insufficient information to identify firms that fall short of our expectations. This then prevents the FCA from being able to prioritise resources, be that support or enforcement, on firms that pose the greatest risk to clients prior to insolvency.
34. In particular, we are concerned about 2 areas. First, regulatory returns do not contain sufficient detail to assess whether firms are meeting their safeguarding obligations. Second, the safeguarding audits provided for in the Approach Document do not have to submitted to the FCA, further limiting our oversight.
35. Furthermore, the lack of clarity and precision in current provisions leads to difficulties in enforcement as firms may be able to contest findings. This can undermine the credibility of enforcement as a deterrence.
Begging the question: in such circumstances, should the market continue to believe that UK issued/FCA-regulated e-money is really on par with GBP?
New Rules...
The UK authorities' proposed remedy is to bring in more detailed rules, in two phases: supplementary rules under the current regulations "to reduce the incidence and extent of pre-insolvency shortfalls" (why so late?) and moving the e-money/payment services safeguarding regime under the FCA's wider 'client asset rules' (CASS) regime "to improve the speed and cost of distributing funds post-insolvency" - suggesting that the last attempt to improve the insolvency regime for non-bank payment service providers failed.
The interim rules will only echo current requirements, however, with only monthly reporting on the amount of e-money issued and corresponding cash safeguarded. Will the market be told? Even stablecoin issuers publish the amount of backing assets they hold (to prevent a 'run' on their stablecoins and a crash in the value). Maybe e-money issuers should start doing that, too?
Among the eventual CASS rules will be an obligation to hold safeguarded funds under a statutory trust in favour of their e-money holders. This reflects the FCA's frustration at having already lost the argument in the case of Ipagoo in the Court of Appeal, which held that there is no statutory trust in favour of e-money holders under the E-money Regulations. The FCA is also pressing for a statutory trust over the cash which 'backs' fiat-backed stablecoins (while the EU has not).
The statutory trust idea, in particular, raises a number of issues.
The first issue is whether an e-money holder could have property rights in two distinct assets: the e-money balance (or the right to redeem it at par) and the beneficial interest in the pool of cash held by the issuer in the statutory trust (equating to the par value of e-money held)? If so, does the e-money holder simply have double the value of their e-money balance and/or could the value of these interests diverge?
Secondly, if the e-money itself gives the holder rights in the underlying cash in the statutory trust, why isn't e-money an investment instrument of some kind (the very thing that stablecoin issuers have structured their offerings to avoid, for fear of creating a regulated 'security')? Could it be traded on an exchange (or 'multi-lateral trading facility'), for instance?
Thirdly, the requirement for the corresponding cash to be held in trust is no guarantee that an adequate amount will be held, or that the issuer won't somehow subvert the trust by, for example, failing to deduct 'own funds' (such as amounts owed in fees). What would such a failure mean for the value of the e-money balance itself (or the right to redeem it at par)?
There are likely other issues, such as those arising where an e-money holder has somehow granted an interest to a third party in either the e-money balance or the beneficial interest in the statutory trust. Currently, only the e-money issuer may have an interest in corresponding cash that is safeguarded.
None of this is to suggest that there aren't answers in each case. The point is that the new concept of a statutory trust over the cash corresponding to e-money balances raises fresh uncertainty where the situation already appears grave under simpler rules; and without really solving the fundamental problems of potentially safeguarding too little and slow distribution on insolvency.
More transparency and closer supervision would seem to be preferable.
Conclusion
The potential for new safeguarding rules is an almighty distraction from the critical uncertainty surrounding the integrity of the non-bank payment sector today.
To ensure market confidence, e-money and payment firms may need to resort to publishing their safeguarding position on a daily basis, regardless of the FCA's requirements.
And new FCA rules will prove futile if the level of supervision remains the same.
This post is for information purposes only. If you would like legal advice, please let me know.
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