{"id":26337,"date":"2018-06-29T08:41:32","date_gmt":"2018-06-29T06:41:32","guid":{"rendered":"https:\/\/www.getsmarter.com\/blog\/?p=26337"},"modified":"2019-11-27T08:28:36","modified_gmt":"2019-11-27T06:28:36","slug":"when-regulations-meet-fintech-regtech-is-born","status":"publish","type":"post","link":"https:\/\/www.getsmarter.com\/blog\/when-regulations-meet-fintech-regtech-is-born\/","title":{"rendered":"When Regulations Meet Fintech – Regtech is Born"},"content":{"rendered":"\n
\"\"<\/figure>\n\n\n\n

Small startup companies driving the pace of innovation in the financial services sector have commonly characterised the fintech landscape. However, the incumbents are no longer sitting on the sidelines.<\/p>\n

Legacy systems are still very much in use and have not been fully disintermediated.1<\/sup><\/a>\u00a0\u00a0These incumbents \u2013 in order to keep pace with the new, more consumer-centric2<\/sup><\/a>innovations pushed into the market by disruptors \u2013 are expanding their own investment and transformation initiatives. In recent years there has also been an upswing in partnerships with, and outright acquisitions of, fintech startups.3<\/sup><\/a><\/p>\n

With national regulators now fully alerted to these new developments, they are clambering to understand the space and provide forward-looking regulatory reforms on fintech compliance. The last three years has seen a plethora of regulatory changes in all major financial markets \u2013 largely to keep pace with the fintech evolutions and disruptions taking place in their regions. This changing environment further accentuates the opportunity for new and old companies, big and small, to seize a piece of this rapidly growing pie!<\/p>\n

What is fintech?<\/strong><\/h4>\n

Fintech, a portmanteau of \u201cFinancial Technology\u201d4<\/a><\/sup>, describes an emerging financial sector focused on the innovative application of technology to design and deliver financial services and products. It\u2019s a broad definition that includes a wide range of innovative technologies (e.g. mobile, P2P, API, AI, blockchain) applied to multiple spheres of financial services (e.g. payments, lending, wealth management, advisory).5<\/a><\/sup><\/p>\n

Financial services have been innovating and evolving for centuries. From clay tablet promissory notes used in ancient Babylon to Collateralised Debt Obligations (CDO\u2019s) that many hail as a key contributing factor in the 2008 financial crisis. It is also not the first time that \u2018technology\u2019 is used as the driver of financial innovation. The abacus was used thousands of years ago and the ATM changed the face of consumer banking in the late 60\u2019s and early 70\u2019s. Financial services and technology have always intersected and evolved. In the past 10 years however, fintech has become not just a buzzword but also a multi-billion dollar industry \u2013 why? \u00a0Schindler.6<\/a><\/sup>\u00a0ascribes fintech\u2019s meteoric rise as a result of two key factors.<\/p>\n

Firstly, changes in the supply and demand of financial products, driven by changes in regulatory, technological and macroeconomic conditions. The financial crisis, for example, introduced new rules that made existing financial products less attractive. Technological advancements are allowing alternative solutions to be more easily developed. \u00a0At the same time, the world (specifically younger generations) has lost faith in the banking sector.<\/p>\n

Secondly, Schindler describes the\u00a0depth\u00a0<\/i>of innovation brought about by fintech solutions as being \u201cgenuine\u201d and \u201cfoundational\u201d.7<\/a><\/sup>\u00a0In other words, these are not just digitisations of legacy systems, but often involve a totally new approach to solving problems by delivering new technologically driven solutions that were not available until now.<\/p>\n

What is the role of regulation?<\/strong><\/h4>\n

New innovative technologies are driving fundamental changes in the financial ecosystem. As with any new idea, there is the potential for things to go wrong \u2013 inadvertently as well as intentionally \u2013 and this is what drives the need for regulatory oversight. Road safety laws, which were created in response to the first motor cars, have resulted in an normative expectation and a sense of safety when using the roads. In the same way, regulators in the financial ecosystem play an important role in establishing safety and trust in the financial system, and the products and players that are active in that system, in an effort to maximise opportunities and ensure fintech compliance.<\/p>\n

Financial regulators have four main goals: to establish a trusted marketplace; to ensure that markets run fairly and effectively; to ensure the solvency of financial institutions and protection of consumer assets; and to protect consumers and investors though business conduct legislation.8<\/a><\/sup><\/p>\n\n\n\n

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In the fintech space however, regulatory authorities are struggling to keep up with the rapid pace of technological disruption.\u00a0Fintech regulation\u00a0is traditionally targeted at institutional players (banks, insurance companies, asset managers, etc.) and mostly predates the fast-paced technological development synonymous with fintech startups. Most fintech startups are also not full-fledged financial services providers and, as such,\u00a0fintech compliance\u00a0can be far easier as they\u00a0are not subject to all the same regulations that govern the established players.9<\/a><\/sup><\/p>\n

Regulators must play a careful balancing act to find a goldilocks zone between stability and efficiency.10<\/sup><\/a>\u00a0Over-regulating will stifle innovation, but a lack of regulation can lead to uncertainty, damages and missed opportunities. How then does one limit the risks that new technologies bring (cyber attacks, money-laundering terrorist financing, etc.) without completely stifling innovation through over enforcement of\u00a0fintech compliance?<\/p>\n

Finding the Goldilocks zone<\/strong><\/h4>\n

Regulators around the world are choosing a number of different approaches to designing fintech regulation. Some have adopted a \u201cwait-and-see\u201d11<\/a><\/sup>\u00a0approach, allowing innovation to progress while constantly measuring its impact, and only stepping in when needed. Others seek to actively partner with the disruptors in\u00a0fintech sandboxprogrammes12<\/a><\/sup>\u00a0in order to establish a clear and structured regulatory framework for\u00a0fintech compliance. Then there are those who enforce outright bans, like in the case of cryptocurrencies in Bolivia, and Bangladesh.13<\/a><\/sup><\/p>\n

When designing regulation for\u00a0fintech compliance, there are fundamentally two schools of thought \u2013 rules based vs. principles based.14<\/a><\/sup>\u00a0Rules-based\u00a0fintech regulationattempts to set clear\u00a0fintech laws\u00a0that govern an entity\u2019s behaviour.15<\/a><\/sup>\u00a0It is prescriptive and seeks to provide clear guidelines16<\/a><\/sup>, but is also often viewed as being excessively restrictive and costly to comply with. On the other hand, the principles-based approach aims to provide general standards that describe a desired outcome.17<\/a><\/sup><\/p>\n

In reality most jurisdictions have elements of both extremes of this continuum \u2013 the goal is to find the sweet spot. As Burgemeestre, Hulstijn and Tan states18<\/sup><\/a>, \u201cRules may become more principle-like through the addition of qualifications and exceptions , whereas principles may become more rule-like by the addition of best-practices and requirements\u201d<\/p>\n\n\n\n

Rules may become more principle-like through the addition of qualifications and exceptions, whereas principles may become more rule-like by the addition of best practices and requirements<\/p>Burgemeestre, Hulstijn and Tan <\/cite><\/blockquote><\/figure>\n\n\n\n

The approach and positioning of the presiding regulatory authority, along the rules-based vs principles-based continuum, impacts the ability of market players to innovate, develop, and test new ideas without losing\u00a0fintech compliance.19<\/sup><\/a><\/p>\n

Navigating regulatory waters<\/strong><\/h4>\n

Given the disruptive nature of fintech solutions, simultaneous compliance to multiple regulatory bodies is often required to regulate\u00a0fintech compliance. In a Wall Street Journal article Bruce Wallace, chief digital officer of SCB Financial Group, mentioned that often the biggest problem for startups is finding out which regulatory agencies govern them. He mentions that [in the USA] \u201cin addition to the Federal Reserve, you have the Consumer Financial Protection Bureau, the Financial Industry Regulatory Authority , Securities and Exchange Commission, Office of the Controller of Currency, Federal Deposit Insurance Corp., Financial Crimes Enforcement Network, etc. along with the 50 state regulators.\u201d20<\/sup><\/a><\/p>\n

Beyond\u00a0fintech regulation,\u00a0there are also cybersecurity\u00a0fintech laws\u00a0and data protection standards to abide by. The World Bank reports that cyber attacks on the financial sector are increasing and that authorities are responding by improving security measures.21<\/a><\/sup>\u00a0Some regions (like New York) necessitate the appointment of an Information Security Officer as part of an organisation\u2019s\u00a0fintech compliance\u00a0to ensure a that a secure process is adopted and risk assessments are conducted.22<\/a><\/sup>\u00a0Other regions require that financial institutions develop an ICT strategy and risk management frameworks to mitigate risk and exposure in the event of a data breach.23<\/a><\/sup><\/p>\n

To compound the issue further, this complex regulatory minefield often has to be navigated by a small team sans the army of compliance officers traditional financial institutions frequently field.24<\/sup><\/a>\u00a0The potential make-or-break nature of non-compliance penalties, and the different regulatory approaches taken by\u00a0fintech lawmakers around the world have resulted in many startups carefully considering their options before selecting a regulatory jurisdiction.<\/p>\n

Choosing the right regulatory environment<\/strong><\/h4>\n

Factors like business competitiveness, governance principles, intellectual property protection, the tax regime, access to human talent and high quality infrastructure, and quality of life all tie into the decision on where to launch a venture.25<\/a><\/sup>\u00a0In the fintech setting, assuming that these services are generally aimed at a global audience, the decision on where to incorporate is heavily impacted by the regulatory benefits offered and limitations set by different regions. There are a number of locations being punted as \u201cthe best\u201d place to launch a fintech startup, ranging from Beijing to Boston26<\/a><\/sup>\u00a0but, as it ultimately boils down to the specific risks and benefits of each venture, there is no one-size-fits-all to\u00a0fintech compliance.27<\/a><\/sup><\/p>\n

That said, there are some key regulatory environments which are worth being aware of. The regulatory positions of the US, the UK and Singapore, as it relates to fintech, are particularly interesting.28<\/a><\/sup><\/p>\n

In the US, fintech companies are regulated at the federal and state level,29<\/sup><\/a>\u00a0with a number of states recently taking the decision to standardise their approach to\u00a0fintech regulation\u00a0and\u00a0fintech compliance.30<\/a>.<\/sup>\u00a0The overarching policy is to promote innovation whilst maintaining the same level of protection under the law\u00a0for the public. While fintech entities are, in most cases, subject to the same\u00a0fintech regulation\u00a0as other traditional businesses, some state level regulators have created additional licenses for specific industries (e.g. Bit Licence in New York31<\/sup><\/a>). The US were slow to adopt a regulatory\u00a0fintech sandbox, with Arizona becoming the first state to launch a regulatory sandbox in mid 2018.32<\/a><\/sup>\u00a0There appears to be no specific exemptions from the laws that apply to fintech entities in the USA, however legislators are looking into the creation of further licences tailored to fintech businesses (e.g. the JOBS Act that allows crowdfunding as a means to raise capital).33<\/a><\/sup>\u00a0It is expected that the US government will continue partnering with the private sector to promote a innovation-friendly atmosphere in the fintech environment.<\/p>\n

By consciously aiming to provide a regulatory environment where fintech businesses can compete and grow34<\/sup><\/a>, the UK supports the development of new business models, innovative solutions and disruptive technologies. Stimulating financial-sector innovation, to maintain its status as a global financial center, is reportedly an even higher priority post-Brexit. Generally speaking, fintech companies in the UK are subject to the same\u00a0fintech legal issues\u00a0as traditional firms and will need to obtain authorisation from one of the UK\u2019s financial regulators (i.e. the Financial Conduct Authority, FCA, or the Prudential Regulation Authority, PRA).35<\/sup><\/a>\u00a0The FCA seeks to work with new organisations to remove regulatory hurdles where possible. The FCA also runs a\u00a0fintech sandbox\u00a0programme \u2013 called Project Innovate36<\/sup><\/a>\u00a0\u2013 that launched in May 2016. This facility allows companies to test products and services in a controlled environment, reduces time to market, supports and identifies consumer protection safeguards, and allows better access to financing.37<\/a><\/sup>\u00a0There are a number of exemptions for fintech companies.38<\/a><\/sup>\u00a0and these are primarily provided for under the\u00a0fintech sandbox\u00a0programme.39<\/a><\/sup>\u00a0As one of the global financial capitals, the UK was one of the first regulators to implement fintech-specific policy initiatives, but the rest of the world is quickly closing the gap.<\/p>\n\n\n\n

By consciously aiming to provide a regulatory environment where fintech businesses can compete and grow, the UK supports the development of new business models, innovative solutions and disruptive technologies.<\/p><\/blockquote><\/figure>\n\n\n\n

In Singapore, the financial authority MAS (Monetary Authority of Singapore) is the primary regulator of fintech businesses\u00a040<\/a><\/sup>, is an avid promoter of fintech initiatives, and oversees all\u00a0fintech compliance\u00a0and\u00a0fintech legal issues. The MAS has indicated that their stance is that\u00a0fintech regulation\u00a0should follow innovation and not dictate it.41<\/sup><\/a>\u00a0The goal is to balance the risks of new technologies by developing new\u00a0fintech regulations\u00a0as specific risks become significant.42<\/sup><\/a>\u00a0Given that fintech entities may be engaged in a wide range of activities, additional regulatory oversight will depend on the specific activities in which the fintech company participates. For example, securities crowdfunding is regulated under the Securities and Futures Act, cross-border remittances are regulated under the Money-Changing and Remittance business Act, and businesses that are active in the lending space have to comply with the Moneylenders Act.43<\/a><\/sup><\/p>\n

The MAS also runs a regulatory\u00a0fintech sandbox44<\/a><\/sup>\u00a0with the aim of encouraging fintech experimentation and is working with the disruptors to develop the necessary licensing requirements, specific to the activities of the business. The\u00a0fintech sandbox\u00a0allows participants to access a controlled environment, consisting of a limited number of people, in order to test their ideas in a more relaxed regulatory setting where the authorities have oversight.45<\/sup><\/a>\u00a0This testing period allows for risks arising from the disruptive solution to be assessed and mitigated. \u00a0<\/p>\n

Navigating the near-future of fintech<\/strong><\/h4>\n

Traditionally fintech companies have maintained that they are not financial institutions \u2013 that they are instead technology firms disrupting traditional financial institutions. A not-so-subtle difference to attempt to evade the worst of\u00a0fintech compliance\u00a0issues. This has allowed them some safeguard from the regulatory requirements placed on banks and other financial services (like insurance and wealth management). However, the\u00a0fintech future\u00a0might see the definitions of fintechs and banks align more closely.<\/p>\n

A number of tech companies are considering obtaining bank charters that will grant them broader access to the market while limiting the individual regulatory requirements across different regions of operation.46<\/a><\/sup>\u00a0On the other side, to address the increasingly consumer-centric demands, banks are increasingly starting to partner with and buy up fintech companies to acquire access to the disruptive technologies developed by these startups.47<\/a><\/sup><\/p>\n

Other key developments include the proliferation of \u201cOpen Banking\u201d, a global trend in banking regulation with a focus on security, innovation and competition.48<\/sup><\/a>\u00a0In January 2018 the EU\u2019s Second Payment Services Directive (PSD2) came into effect and permanently changed the nature of retail banking and\u00a0Fintech compliance\u00a0in general.49<\/a><\/sup>\u00a0The aim of the open banking initiative is to accelerate digital innovation and to create seamless customer experiences.50<\/sup><\/a>\u00a0The\u00a0fintech regulation\u00a0requires that banks grant automated access to customer accounts for qualified third parties \u2013 this levels the playing field somewhat and will allow smaller fintech companies to compete more directly with larger banking institutions.\u00a051<\/a><\/sup><\/p>\n

Similarly, data protection has recently become a hot-button topic with the EU\u2019s GDPR (General Data Protection Regulation) coming into effect \u2013 legislation which not only applies to EU organisations, but to any entity that does business in Europe.52<\/a><\/sup>\u00a0According to the official GDPR website, the body of legislation is designed to enforce stronger rules on data protection to give people more control over their personal data, and to benefit businesses by providing a more level playing field.53<\/a><\/sup>\u00a0Non-compliance with GDPR will result in hefty fines of up to 4% of global turnover!54<\/a><\/sup><\/p>\n

Ultimately, these new standards will bring significant changes to the consumer banking space \u2013 additional regulatory considerations, increased pressure on traditional players\u2019 margins due to increased competition, and more control for citizens over their digital identities.<\/p>\n

A new frontier<\/strong><\/h4>\n

The broader challenges associated with\u00a0fintech regulation\u00a0and compliance are also being tackled with new disruptive tech solutions. Constantly evolving regulation, along with the increasing demand for reporting and data oversight, has created a demand for alternative\u00a0fintech compliance\u00a0solutions, and a number of tech startups have already stepped up to tackle this problem.55<\/sup><\/a>\u00a0Hailed by some as \u201cthe new fintech\u201d56<\/sup><\/a>, this budding industry is promising to deliver advanced solutions to the challenging task of compliance within the financial services industry.<\/p>\n

The cost of\u00a0fintech compliance\u00a0has traditionally been high and is continually rising.\u00a057<\/a><\/sup>\u00a0The cost of non-compliance is even greater, with ever-increasing penalties enforced by authorities. Regtech solutions aim to address these rising costs by engineering alternative, more efficient means of providing oversight. Regtech solutions are commonly data acquisitive and often make use of real time data, through the use of advanced algorithms and analytics, to develop new approaches to compliance checks.58<\/a><\/sup><\/p>\n

Similar to fintech, regtech is open-ended in nature. The Deloitte report,\u00a0RegTech Universe<\/i>, identifies over 240 active RegTech companies across multiple spheres of activity, ranging from regulatory reporting and risk management, to identity control, compliance, and transaction monitoring.59<\/sup><\/a>\u00a0Tech solutions can be effectively leveraged to facilitate the development of a secure and trusted financial services environment; however, governance needs to be strengthened, through the development of rules and standards, to ensure that this data and these services are secure and safe to use. Furthermore, legal principles have to be updated to clarify individual rights and obligations in this new global financial landscape.\u00a060<\/sup><\/a><\/p>\n

As with all of fintech, regtech is in a state of rapid evolution, disruption, and fundamental change. Many of the regulatory principles that got us here are simply too slow and costly to sustain us into the\u00a0fintech future. As regulations evolve to match the changing landscape, many of the fundamental rules governing the financial industry will need to be reviewed, altered, or outright changed. Informed and forward-looking fintech businesses and employees will find opportunities to leverage these changing rules to address old problems, in new markets, in fundamentally new ways.<\/p>\n","protected":false},"excerpt":{"rendered":"

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