Cryptocurrencies and market abuse risks: It’s time for self-regulation

With quite a bit of emphasis put on the value of the crypto-currencies, or some would say the lack thereof, and the regulatory oversight on the offering of such crypto-currencies to the public, namely the process called Initial Coin Offering (ICO), the risks of market abuse have been far less discussed.

In the modern age of financial markets, new kinds of cybernetic market manipulation, driven by artificial intelligence, digital technology and social media, are not exclusive to cryptocurrency markets and could cause massive and instantaneous distortion of information and prices.

In a 2016 report, the UK prudential regulator found that possible insider trading could have occurred in as many as 30% of takeovers in the UK in the four years prior to 2009 and in around a fifth of takeovers in 2015.

In the US, the Commodity Futures Trading Commission has concluded that the Flash Crash of 6 May 2010, which resulted in a trillion-dollar stock market crash during only half an hour on that day, has been at least significantly provoked by market manipulation.

Distributed ledger technology (“DLT”) has been pitched as a way to improve transactions transparency, mitigate systemic risk and strengthen financial stability. Experts of the regulatory technology industry (known as “RegTech”) have even described blockchain as having the potential effect to create compliance partnerships between regulators and market participants, by directly inputting compliance rules inside the blockchain (i.e. via a smart contract) and therefore facilitating an almost real-time access, analysis and processing of data.

Nevertheless, in reality, market abuse risks have not been eliminated by DLT, and, given the nature of unregulated ICOs or crypto-currencies investments, such risks are, in many ways, far greater. A lack of information on price formation and order execution, central order book manipulation, or price manipulations such as “pump and dump” and “spoofing” practices represent only some of the potential issues for investors in crypto-currencies.

A quick survey of current regulations shows that most countries have taken broad legal measures to allow regulators to intervene in any market abuse, provided they can identify its existence. In European Union (“EU”) member states, the key regulation related to market manipulation and insider trading is the Market Abuse Regulation No 596/2014 of 14 April 2014 (“MAR”), which replaced the EU Market Abuse Directive of 28 January 2003 and entered into effect on 3 July 2016.

In addition to several disclosure requirements, the MAR regulation outlaws in the EU three types of abuse on financial, commodity and related derivatives markets:

1. Market manipulation (i.e. disseminating false or misleading information or securing the price of one or several financial instrument(s) at an abnormal or artificial level);

2. Insider dealing (i.e. use of inside information by a person in possession of such information: (a) by transacting in financial instrument(s) to which that information relates, on his own account or for the account of a third-party, directly or indirectly; or (b) by recommending or advising a third-party to engage in insider dealing), and;

3. Unlawful disclosure of non-public information (i.e. abnormal disclosure of inside information to a third-party by a person in possession of such information).

However, the application of the MAR regulation to crypto-currencies appears to be limited, due to the fact that these rules only apply to financial instruments under the definition of the MIF Directive 2014/65/EU (“MIF”).

According to several EU member states (e.g. Austria, France, Czech Republic, Poland), most existing crypto-currencies do not meet the characteristics of a financial instrument under the current state of law. Only the German financial regulator has classified the virtual currencies, including Bitcoins, as financial instruments, in accordance with section §1(11) of the German Banking Act (Kreditwesengesetz). Yet this decision by the German regulator has not been completed by the publication of the precise legal implications of such classification.

Similarly, the Israeli Securities Act prohibits the use of various market manipulations, such as insider trading and unlawful disclosure of information. The Israeli Securities Authority ("ISA") has been vested with investigative and enforcement powers to enforce such misconducts. The Act applies to the use of various securities, however, as in most EU countries, there is currently no clear interpretation that securities under Israeli law include crypto-currencies. Therefore, one would argue that both the sale and trade of cryptocurrencies under Israeli law are not regulated by the securities law, and market manipulation is therefore not clearly prohibited.

Even if the regulators adopt a broader view of existing legislation and apply existing prohibitions under the law to market manipulations, they would face a significant barrier to identifying such manipulations and their sources. One thing that stands out when dealing with cryptocurrencies is their anonymous nature. Crypto-currencies move from one digital wallet to another at a fast pace without real names or IDs, using cryptographic (private) keys as the only identification.

While blockchains register every single transaction, making and proving the connection between a certain misconduct and the person behind it can turn into a very complicated issue. One explanation for this is because the industry lacks the technological tools that can be used to spot and identify certain illegal actions, like the one’s regulators and market participants use for the regulated markets (e.g. the stock exchanges).

Furthermore, unlike controlling the trading in stock exchanges, when it comes to cryptocurrencies there is no single public authority officially in charge of enforcing market manipulations. Indeed, crypto-currencies are usually not registered as securities, derivatives and/or financial instruments and therefore are traded over various platforms spread around the world. Many regulators would find it hard to claim responsibility and legal powers to enforce such misconduct, where in reality the exchange platform is located in a foreign jurisdiction, and the actual misconduct was committed over the internet, by using social platforms, like Slack, Telegram, Twitter, and Facebook.

Despite the obvious challenges of enforcing crypto-market-manipulation sanctions, there are early signs of change. One example was pointed out by the Polish Deputy Finance Minister who said publicly in 2014 that options, futures and swap instruments denominated in cryptocurrencies (or whose underlyings are related to cryptocurrencies) may be considered as derivatives and thus potentially as financial instruments.

In Israel, the ISA published in December 2017 a draft amendment to the Israeli Stock Exchange articles suggesting banning from its indexes companies whose main business is investing, holding or mining crypto-currencies. This announcement was a quick reaction to an unusual trade in an Israeli company capital stock which was a direct result of the company’s announcement of its intentions to get involved in the crypto mining business. The director of the ISA has expressed his deep concerns to Israeli investors in the share market, where there is little-to-no correlation between the real economic value of the company and the price of its shares.

Yet, most regulators tend to move slowly, especially in uncharted territory. In contrast, exchange platforms and investments can move faster. Overall, as the cryptocurrency markets rapidly shift from ‘avant-garde’ to ‘mainstream’, exchanges will be pressured to install more controls and tools designed to prevent and stop market manipulations.

One such control may very well be the use of blockchain, and require the creation of a structure which would permit the storage of immutable regulatory data communicated by companies through public, consortium or fully private distributed ledgers. Under such a storage structure, discussions should emerge to use smart contracts for regulatory control automation and to include financial market regulators directly into the information integrity validation and verification process.

This form of ‘self-regulation’, which means automated compliance and monitoring by market participants represents strategic development on mitigating market abuse risks. As the public statement by cryptocurrency exchange platform Bittrex showed on 25 November 2017, cryptocurrency exchanges would be wisely advised to provide general statements to their clients discouraging market manipulation tactics and providing legal wording in their terms and conditions as well as internal processes and technical alert rules (to efficiently analyze unusual price movements, order-to-cancel ratios, pumps and dumps etc.) and harsh policies with the established violations.

To face these issues, ICO funders, cryptocurrency exchanges and wallet providers would also need to actively and regularly train their personnel on market abuse risks and compliance with regulations. Finally, beyond the constraints and legal burdens, the emergence of regulatory compliance via the use of DLT and smart contracts could represent a significant opportunity for financial institutions from a cost perspective.

Special Counsel Roy Keidar, of law firm Yigal Arnon & Co, and Legal Counsel Stephane Blemus, of Kalexius law firm,  examine the regulatory difficulties in the burgeoning cryptocurrency markets.