2020年加密資產交易平臺風險和監管報告 - 國際證券組織委員會（英文版）.pdf

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1、 Issues, Risks and Regulatory Considerations Relating to Crypto-Asset Trading Platforms Final Report BOARD OF THE INTERNATIONAL ORGANIZATION OF SECURITIES COMMISSIONS FR02/2020 FEBRUARY 2020 ii Copies of publications are available from: The International Organization of Securities Commissions websit

2、e www.iosco.org International Organization of Securities Commissions 2020. All rights reserved. Brief excerpts may be reproduced or translated provided the source is stated. iii Foreword On May 28, 2019, the Board of the International Organization of Securities Commissions (IOSCO) published a Consul

3、tation Report, Issues, Risks and Regulatory Considerations Relating to Crypto-Asset Trading Platforms (Consultation Report), and encouraged the public to comment on the identified issues, risks, key considerations and related toolkits by July 29, 2019. In response to the request for comments, twenty

4、-eight comment letters were received and were carefully considered by IOSCO in the preparation of this Final Report, Issues, Risks and Regulatory Considerations Relating to Crypto-Asset Trading Platforms (Final Report). Annex C describes and addresses the major comments. iv Contents Chapter Page 1.

5、Executive summary 1 2. Introduction 3 3. Regulatory Approaches to Crypto-Asset Trading Platforms 6 4. Key Considerations 10 5. Cross Border Information Sharing 26 6. Conclusion 28 Annex A 29 Annex B 37 Annex C 45 1 Chapter 1 - Executive Summary The emergence of crypto-assets is an important area of

6、interest for regulatory authorities, including those with authority over secondary markets and the trading platforms that facilitate the secondary trading of crypto-assets (Crypto-asset Trading Platforms or CTPs). The aim of this Final Report is to assist IOSCO members in evaluating the issues and r

7、isks relating to CTPs. Published in February 2017, the IOSCO Research Report on Financial Technologies (Fintech),1 (the Fintech Report) discussed distributed ledger technologies (DLT) and the role of tokenization of assets and fiat money. In the Fintech Report, IOSCO noted that “Tokenization is the

8、process of digitally representing an asset, or ownership of an asset. A token represents an asset or ownership of an asset. Such assets can be currencies, commodities or securities or properties.” For this Final Report, crypto-assets are a type of private asset that depends primarily on cryptography

9、 and DLT or similar technology as part of its perceived or inherent value, and can represent an asset such as a currency, commodity or security, or be a derivative on a commodity or security. Where a regulatory authority has determined that a crypto-asset or an activity involving a crypto-asset fall

10、s within its jurisdiction, IOSCOs Objectives and Principles of Securities Regulation2 (IOSCO Principles) and the Assessment Methodology3 (the Methodology) provide useful guidance in considering the novel and unique issues and risks that arise in this new market. The IOSCO Principles and Methodology

11、also facilitate the promotion of IOSCOs core objectives of securities regulation,4 which include protecting investors and ensuring that the markets are fair, efficient and transparent. The Final Report, prepared by Committee 2 on the Regulation of Secondary Markets (Committee 2),5 is based in part o

12、n the information gathered by Committee 2 related to the operation of CTPs and the regulatory approaches that are currently applied or are being considered in Committee 2 member jurisdictions or in member jurisdictions that participate in IOSCOs ICO Consultation Network (ICO Network).6 1 https:/www.

13、iosco.org/library/pubdocs/pdf/IOSCOPD554.pdf 2 Published at: https:/www.iosco.org/library/pubdocs/pdf/IOSCOPD561.pdf 3 Published at: https:/www.iosco.org/library/pubdocs/pdf/IOSCOPD562.pdf 4 In the IOSCO Principles and Methodology, the words “securities markets” are used, where the context permits,

14、to refer compendiously to the various market sectors. In particular, where the context permits, they should be understood to include reference to the derivatives markets. The same applies to the use of the words “securities regulation”. (See IOSCO By-Laws, Explanatory Memorandum). 5 Chaired by Ontar

15、io, C2 members include representatives of regulatory authorities from: Abu Dhabi, Australia, Brazil, Canada (OSC, AMF Quebec, IIROC), China, Dubai, France, Germany, Hong Kong, India, Ireland, Italy, Japan, Republic of Korea, Kuwait, Malaysia, Mexico, The Netherlands, Nigeria, Romania, Russia, Saudi

16、Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States of America (CFTC, SEC). 6 The ICO Network was established by IOSCO in January 2018 and facilitates sharing experiences and concerns with fellow regulators. Jurisdictions in the ICO Network that are not

17、 in Committee 2 are: Argentina, Abu Dhabi, the Bahamas, Belgium, Canada (Alberta, British Columbia), Chile, Gibraltar, European Union (ESMA), Isle of Man, Israel, Jersey, Liechtenstein, New Zealand, Poland, Serbia, Thailand, Trinidad and Tobago and the United States (FINRA). 2 The Final Report descr

18、ibes issues and risks identified to date that are associated with the trading of crypto-assets on CTPs. In relation to the issues and risks identified, it describes key considerations and provides related toolkits that are useful for each key consideration. These key considerations and toolkits are

19、intended to assist regulatory authorities who may be evaluating CTPs within the context of their regulatory frameworks.7 The key considerations relate to: Access to CTPs; Safeguarding participant assets; Conflicts of interest; Operations of CTPs; Market integrity; Price discovery; and Technology. Th

20、e operational model adopted by a CTP and the existing regulatory framework may determine the extent to which issues or risks exist, are relevant or have already been mitigated. IOSCO recognizes that this market is new and rapidly evolving. As a result, the key considerations and toolkits put forward

21、 in the Final Report are not intended to suggest or mandate any particular regulatory action or requirement. They represent specific areas that IOSCO believes jurisdictions could consider in the context of the regulation of CTPs. The toolkits are examples of measures that can be used by regulatory a

22、uthorities to address the key considerations and the associated risks and issues. For any particular IOSCO member there may be other considerations not highlighted in this report that it views as relevant to its legal and regulatory framework. IOSCO will continue to monitor the evolution of the mark

23、ets for crypto-assets, with a view to ensuring that the issues, risks and key considerations identified in this report remain relevant and appropriate. Finally, this Final Report does not include an analysis of the criteria that are used by regulatory authorities to determine whether a crypto-asset

24、falls within its remit. Rather, it focuses on the trading of crypto-assets on CTPs when the regulatory authority has determined that it has the legal authority to regulate those assets or the specific activity involving those assets. 7 In some jurisdictions, the existing regulatory framework for the

25、 trading of derivatives on exchanges may apply to the trading of crypto-asset derivatives (e.g., United States). Consideration of such frameworks may entail a separate review from those contemplated in this Final Report. 3 Chapter 2 Introduction 1. Background For this Final Report, crypto-assets are

26、 a type of private asset that depends primarily on cryptography and DLT8 or similar technology, as part of its perceived, or inherent value.9 Crypto-assets can represent an asset or ownership of an asset, such as a currency, commodity, security, or a derivative on a commodity or security. Regulatory

27、 authorities globally are examining the issues surrounding crypto-asset trading, including whether these assets are securities or other financial instruments, whether they fall within their regulatory jurisdiction, and, if so, how to address the novel and unique issues and risks that may be associat

28、ed with these assets and the CTPs where they trade. The G20 Ministers of Finance and Central Bank Governors acknowledged in the Communiqu following their March 2018 meeting in Buenos Aires that crypto-assets are not a material risk to financial stability, but stated that they “raise issues with resp

29、ect to consumer and investor protection, market integrity, tax evasion, money laundering and terrorist financing.”10 They called on international standard setting bodies “to continue their monitoring of crypto-assets and their risks, according to their respective mandates, and assess multilateral re

30、sponses as needed.”11 IOSCO members have raised concerns about crypto-assets in areas ranging from trading, custody, clearing and settlement, accounting, valuation, and intermediation, to the exposure of investment funds to crypto-assets. In January 2018, IOSCO issued a statement on concerns related

31、 to Initial Coin Offerings (ICOs),12 noting that there are clear risks associated with ICOs, including the targeting of retail investors through online distribution channels by parties often located outside of an investors home jurisdiction. IOSCO also announced the establishment of the ICO Network1

32、3 through which IOSCO members could discuss and share their experiences and concerns with fellow regulators. Committee 2 began examining issues relating to secondary market trading of crypto-assets on CTPs in early 2018. Initially, Committee 2 identified several issues that could be considered by re

33、gulatory authorities, including: (1) transparency; (2) custody, clearing and settlement; (3) trading; and (4) cyber security and systems integrity. Committee 2 has continued its work since May 2018 and, in October 2018, the IOSCO Board supported Committee 2 in the development of this Final Report. 8

34、 The October 2018 FSB report Crypto-asset markets: Potential channels for future financial stability implications defines DLT as a means of saving information through a distributed ledger, i.e., a repeated digital copy of data available at multiple locations. Available at: http:/www.fsb.org/wp-conte

35、nt/uploads/P101018.pdf. 9 Ibid. 10 https:/back-g20.argentina.gob.ar/sites/default/files/communique_-_finance_and_central_banks_- _march_2018.pdf. 11 Ibid. 12 https:/www.iosco.org/news/pdf/IOSCONEWS485.pdf. 13 See supra note 7. 4 Building on previous work and preparing this Final Report, Committee 2

36、relied on information received in response to a survey (the Survey) sent to its member jurisdictions and participants in the ICO Network. The Survey requested details about the types of CTPs that are operating (not necessarily licensed or authorized) and how CTPs are accessed by participants. The Su

37、rvey also sought comment on the identification of associated risks or issues by regulatory authorities, and what regulatory approaches were in place, or being contemplated to address any concerns. IOSCO and other international bodies, along with national regulatory authorities, continue to monitor t

38、he growth and development of crypto-assets, including the trading of such assets on CTPs and other areas relevant to the global financial markets.14 2. Scope For this Final Report, a Crypto-Asset Trading Platform is defined as a facility or system that brings together multiple buyers and sellers of

39、crypto-assets for the purpose of completing transactions, or trades. While CTPs perform functions that are similar to Trading Venues,15 they may also perform functions that are more typically performed by intermediaries, custodians, transfer agents and clearing houses. The Final Report focuses on th

40、e approaches taken or being considered by regulatory authorities in Committee 2 member jurisdictions and jurisdictions in the ICO Network, where the regulatory authority has determined that it has legal authority to regulate crypto-assets and/or instruments based on, or specific activities involving

41、, crypto-assets. For example, in some jurisdictions, legal authority is based on the classification of the crypto-asset as a security, a financial instrument, an asset, a commodity or a derivative.16 The Final Report focuses on the issues and risks related to CTPs that have been identified to date.

42、The Final Report does not include an analysis of the criteria that is used by regulatory authorities to determine whether a crypto-asset falls within its remit. Finally, the Final Report focuses on secondary market trading of crypto-assets on CTPs and it does not discuss issues related to ICOs. 3. P

43、urpose IOSCO believes that fostering innovation should be balanced with the appropriate level of regulatory oversight. Accordingly, while aspects of the underlying technology and operation of CTPs may be novel, if a CTP trades a crypto-asset that is a security and it falls within a regulatory author

44、itys jurisdiction, the basic principles or objectives of securities regulation 14 Board Priorities IOSCO Work Program for 2019. See: https:/www.iosco.org/library/pubdocs/pdf/IOSCOPD625.pdf 15 In this Final Report, the term Trading Venue refers to traditional exchanges, alternative trading systems (A

45、TSs), multilateral trading facilities (MTFs) or other regulated trading venues. We recognize, however, that the concept of a “trading venue” is evolving in a number of Committee 2 jurisdictions. For example, the concept may, at the discretion of individual members for their jurisdictions, also inclu

46、de swap execution facilities (SEFs) in the United States or organized trading facilities (OTFs) in the European Union. 16 Depending on jurisdictional authority, the scope of this Final Report could be useful to a variety of CTPs that trade different types of crypto-assets, including those marketed a

47、s stablecoins. 5 (investor protection, ensuring fair, efficient and transparent markets and investor confidence in markets) should apply. Based on the findings of the Survey and prior Committee 2 work, the Final Report highlights some of the unique issues associated with CTPs and provides key consid

48、erations to assist regulatory authorities. The key considerations, issues and risks identified in the Final Report may not always be relevant and may currently be mitigated or addressed by existing regulatory frameworks. IOSCO believes they are important areas for regulatory authorities to consider

49、in the context of the regulation of CTPs. The Final Report also references the relevant IOSCO Principles and the Methodology that are useful for analyzing the potential issues and risks identified. The IOSCO Principles are the overarching core principles for securities regulation that guide IOSCO in the development and implementation of internationally recogniz