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Wednesday, 9 December 2015

UK Continues To Clear The Path For Growth Of Alternative Finance

Draft legislation has now been published to allow bad debt relief for investors in peer to peer loans, in addition to the new Personal Savings Allowance announced in the Summer Budget.

These measures are among those that address the key regulatory problems and perverse incentives that have been preventing the flow of finance to people and businesses who need it and improved returns to savers and investors. The first regulatory initiative was to regulate P2P lending, announced in 2013; while the first step in addressing incentives was to include P2P loans in ISAs - first announced in 2014.

In introducing the latest incentive measures the government says it remains "determined to increase competition in the financial sector, where new firms such as P2P platforms can thrive alongside the established players and compete to offer new and improved services to customers. This new relief will create a level playing field for the taxation of income from P2P lending when compared to the taxation of traditional forms of retail investment available from those established players."

The government's commitment is critical, given that the financial system is now less diverse than before the financial crisis blew up in 2008. Few bank reforms have actually taken effect - and some are being watered down. Recent fines and scandals also reveal little change in mainstream financial services culture from that described in the report of the Parliamentary Commission on Banking Standards and most recently in the damning report into the failure of HBOS.

From 6 April 2016, individuals investing in certain P2P loans will be able to set-off the losses they incur from loans in default against income they receive from other P2P loans, when calculating their savings income for tax purposes. 

In addition, under the Personal Savings Allowance announced in the Summer Budget 2015, the first £1,000 of savings income will be exempt from tax for basic rate taxpayers and the first £500 for higher rate taxpayers. An individual’s PSA will apply to interest they receive from P2P lending after any relief for bad debts. 

Wednesday, 2 December 2015

Isle of Man Goes Crypto-Crazy

I'm indebted to my colleagues in the Isle of Man for pointing me to the IoM's recent Designated Businesses (Registration and Oversight Act 2015, which imposes various registration and anti-money laundering requirements on distributed ledger technology. Do we have a poster-child for how regulation of new technology can go way too far?

The IoM compliance obligations are aimed at: 
"the business of issuing, transmitting, transferring, providing safe custody or storage of, administering, managing, lending, buying, selling, exchanging or otherwise trading or intermediating convertible virtual currencies, including crypto-currencies or similar concepts where the concept is accepted by persons as a means of payment for goods or services, a unit of account, a store of value or a commodity;"
This seems likely to be counter-productive, to say the least, given that the 'currency' aspect of distributed ledgers is often merely there to reward the 'miner' or processor of transactions or events that occur on the ledger, regardless of whether those events are themselves financial in nature - financial services being merely one of many different potential applications.

So, should every business on the IoM that uses, or might wish to use, distributed ledgers register with the authorities and introduce AML controls on everyone it deals with, just in case? Maybe so...

Two specific points to make:

1. ‘convertible virtual currencies’ are defined more broadly than one would expect:
“including crypto-currencies or similar concepts [neither term being defined, except by what follows…] where the concept is accepted by persons as a means of payment for goods or services, a unit of account, a store of value or a commodity”, 
Most definitions of a ‘currency’ require all these criteria to be met, not just any one of them. Imagine what would happen to the US Dollar, for example, if suddenly it was not accepted as meeting just one of the above criteria...  Indeed, for this reason many people disagree that Bitcoin - the most widely used form of 'crypto-currency' - is still nothing more than a commodity.

In addition, none of the typical exemptions under payment services regulations seem to be imported here. To take but one relevant example: consumer loyalty/rewards programmes are typically exempt on the basis that the rewards are only accepted as a means of payment within a 'limited network'. Do the local authorities really want every business participating in a loyalty scheme on the Isle of Man to register and apply AML controls just because the scheme involves distributed ledger technology? Maybe so...

2.  Similarly, the list of activities that trigger the relevant compliance obligations would seem to cover a vast array of potential services and their providers/users - recognising that these are distributed ledgers to which all computers running the protocol have the same access. Again, just think of consumer loyalty programmes as you go through the list:
the business of issuing, transmitting, transferring, providing safe custody or storage of, administering, managing, lending, buying, selling, exchanging or otherwise trading or intermediating...
Even payment services regulation, for instance, exempts technology services that support transactions without the service provider handling funds. And the whole point of the ledger is that no intermediary is actually handling funds - its all happening peer-to-peer amongst machines - indeed perhaps everyone's device is handling the funds. Furthermore, there will be instances where access to a distributed ledger is just one element of a wider system - as in the car-rental example, or tracking shipping containers - and it may not be clear to everyone that a distributed ledger is involved if it's just to share the location or state of a vehicle or container.

Still, the Isle of Man's approach might at least be useful in demonstrating how regulation in this area can go too far...



Thursday, 19 November 2015

P2P #ISAs: FCA's Approach

Although we are yet to see the legislative changes required to include peer-to-peer loans in the new Innovative Finance ISA from April 2016 and regulate advice on P2P loans, the Financial Conduct Authority has helpfully set out its proposed approach for when the law does change. We have until 31 December to respond. Broadly, the FCA proposes to:
  • give guidance on how disclosure rules will apply to including P2P loans in an IFISA - particularly where the P2P platform only has interim permission (pre-April 2016) and risks arising if the firm does not get full authorisation;
  • consult on applying suitability rules to advice on P2P loans, including changing the application of the rules and banning the payment or receipt of commission in relation to making P2P loans (note that the regulation of advice generally is being reviewed, so those rules could also change in due course anyway); however, because direct holdings of shares and other investment instruments are not included in the list of products that independent financial advisers must consider when making recommendations, P2P loans will also be excluded from that list; and
  • ensure any risks related to IFISA inclusion are disclosed, like whether they can be transferred or sold (the FCA considers P2P loans to be "a much higher-risk alternative to buying an annuity" but doesn't mention the risk compared to buying a Lamborghini other types of investment that also compete with annuities).

Thursday, 15 October 2015

Keeping Humans At The Heart Of Technology: Conference Wrap

This is a long overdue summary of my closing remarks at the SCL Technology Law Futures Conference on whether humans can survive the advent of super-intelligent machines. The podcasts for each session are available on the SCL site.

I am confident that we can keep humans at the heart of technology during the current era of artificial narrow intelligence.  It seems we are a long way into the process of coping with computers being better than us at certain things in some contexts. The sense was that the dawn of artificial general intelligence, where computers can do anything a human can, is 20-40 years away. It's also possible, of course, that the machines may never completely exceed human capabilities - more a matter of faith, in any event, as it would only be us who judged that to be the case. 

There are clear signs that humans are using computers to enhance the human experience, rather than replace it. E-commerce marketplaces for everything from secondhand goods, to lending and borrowing, to outsourcing household tasks and spare rooms show that humans are working together directly to remove intermediaries by relying on faciltators who add significant value to that human-to-human experience. 

This underscores the fact that computers' lack of 'common sense' will severely limit their ability to replace us – not just rationally speaking but also in terms of a shared understanding of our own five senses, and how we co-operate and use that shared understanding with each other in subtle yet important and uniquely human ways, for example, simply to summon the smell of freshly cut grass. 

Misuse of machines by humans - to constrain choice, for example - will also hold back development or lead humans to develop alternatives. We have worked around technology-based monopolies in various industries, such as music, but we also heard how the few major mobile 'app stores' are not only becoming the preferred distribution platforms for software, but also choke points to throttle competition. Such attempts at control will prove futile if those platforms do not give us what we want or are not aligned with how we behave or fail to reinforce the shared sense of community that is a feature of, say, peer-to-peer marketplaces and the new distributed ledgers.

The point was also made that we should recognise the value in our freedom to make mistakes or to simply forget or fail to do something – indeed the fact that someone else has forgotten or failed presents an opportunity for someone else. Perhaps this is the key driver of competition and innovation in the first place. [So, would machines evolve to be so efficient that change would no longer be necessary? Superintelligence could be a dull experience!]

Yet it is human fallibility, not that of machines, which is behind most online fraud. Turns out that it's simpler and cheaper to hack the human operating system with confidence tricks than it is to cut through the security systems themselves. Ironically, in this context, it seems there’s more a role for machines to help us avoid being fooled by other humans into giving out sensitive information, rather than to evolve ever more sophisticated encryption, for example.

A key issue is that the evolution of machine ability and interoperability is adding vast complexity to the rules and contracts that govern their use. Layers and layers of rules, terms and conditions must knit together to ensure effective governance of even the humble home entertainment network. Of course, the earlier the lawyers, legislators and regulators are involved in this, the easier it is for governance infrastructure to keep up.  That point is often made by lawyers, but it was also very heartening to hear the direct invitation for more lawyers to be involved directly with engineers in the step-by-step development of driverless cars, so they are aligned with how we humans want them to work on our roads. 

Yet the speed of technological development versus the speed at which the law moves make it unlikely that the law and rules alone will be effective in directly controlling the development of machines, whereas incentives such as commission, fees and fines will likely prove more useful in nudging behaviour in the right direction and keeping interests aligned. How the economic models evolve is therefore critical - and a good area for less direct legal control of machines, particularly through the apportionment of liability and theregulation of markets and competition.

Economically speaking, however, it was pointed out that we are prone to overstating the impact of technology has had in the past, and overestimating its effect in the future. In terms of GDP growth, for example, it turns out there was no industrial 'revolution' but merely a steady increase in output in parallel with various technological improvements. Tech booms and busts are also evidence of this.

We also tend to get hung up on globalisation and the need for harmonious rules across regions, yet much of the benefit of the internet, for example, has actually occurred at local level, and most of us use our phones and email to stay in touch with local people. 

Against this background, the conference keynote speech provided an entertaining overview of artificial intelligence and the community behind it, finishing nicely with a list of the top priorities for urgent human attention. The 'Internet of things' - 50 billion connected devices by 2020 - clearly covers a vast area, so it's important to bring it down to specific scenarios, such as the home, the car, the streets and how sensors, software and machines in each context inter-operate. Other critical developments and scenarios deserving our attention are driverless cars; the use of drones in the context of both civil surveillance and warfare; and applications that control or monitor our health.

More on those fronts in due course, no doubt.

Thanks again to all the speakers for such a thought provoking series of presentations.

Friday, 9 October 2015

Can It Really Be #PSD2?!

The new Payment Services Directive (PSD2) has been approved by the European Parliament. Following the Parliament’s vote, in order to take effect, the Directive must be formally adopted by the EU Council of Ministers and published in the Official Journal of the EU. This is explained by the European Commission here. I understand that should be done by sometime in November. In the meantime, the official version is published by the European Parliament here. From that date of publication in the Official Journal, Member States will have two years to introduce the necessary changes in their national laws in order to comply with the Directive.

I have updated my note for SCL on PSD2 accordingly.

Monday, 5 October 2015

PSD2 - EU Sleight of Hand?

True to form, the EU Parliamentary process threw up an amended proposal for the new Payment Services Directive last Tuesday, leaving everyone two business days to consider it before this week's Parliamentary session. Conspiracy theorists will wonder what last minute lobbying victories were secured and what might have been different with a few weeks to consider them.

It seems pointless to review the draft, let alone summarise any changes, since further changes may well emerge this week from lurking MEPs. Who knows what will finally pop out in the Journal? Only those swimming in the primordial soup.