Contributing Editors Angus Mclean and Penny Miller Simmons & Simmons
Total Page:16
File Type:pdf, Size:1020Kb
GETTING THROUGH THE DEAL Fintech Fintech Contributing editors Angus McLean and Penny Miller 2019 2019 © Law Business Research 2018 Fintech 2019 Contributing editors Angus McLean and Penny Miller Simmons & Simmons Reproduced with permission from Law Business Research Ltd This article was first published in September 2018 For further information please contact [email protected] Publisher Law The information provided in this publication is Tom Barnes general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does James Spearing Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. The Senior business development managers London, W11 1QQ, UK information provided was verified between July and Adam Sargent Tel: +44 20 3780 4147 August 2018. Be advised that this is a developing [email protected] Fax: +44 20 7229 6910 area. Dan White © Law Business Research Ltd 2018 [email protected] No photocopying without a CLA licence. Printed and distributed by First published 2016 Encompass Print Solutions Third edition Tel: 0844 2480 112 ISBN 978-1-78915-024-7 © Law Business Research 2018 CONTENTS Introduction 5 Netherlands 90 Angus McLean and Penny Miller Jeroen Bos, Aron Berket and Marline Hillen Simmons & Simmons Simmons & Simmons Australia 7 Norway 98 Peter Reeves Espen Tøndel, Morten Wilhelm Winther, Sunniva Kinsella, Gilbert + Tobin Marit Stubø, Cecilia Orheim, Erik Martinius Klevmo and Christian Svensen Advokatfirmaet Simonsen Vogt Wiig AS Belgium 16 Vincent Verkooijen and Jérémie Doornaert Simmons & Simmons LLP Russia 105 Anastasia Didenko, Anton Didenko, Valeria Ivasikh and Svetlana London China 24 CIS London & Partners LLP Jingyuan Shi Simmons & Simmons Singapore 112 Damian Adams, Jason Valoti, Gurjoth Kaur, Zixiang Sun and Czech Republic 30 Benedict Tan Loebl Zbyněk, Ditrych Jan, Linhartová Klára, Frolík Martin Simmons & Simmons JWS Pte Ltd and Kalíšek Jindřich PRK Partners s.r.o., Attorneys at Law Spain 120 Alfredo de Lorenzo, Ignacio González, Carlos Jiménez de Germany 35 Laiglesia, Álvaro Muñoz, Juan Sosa and María Tomillo Felix Biedermann, Lennart Dahmen, Carolin Glänzel, Simmons & Simmons Christopher Götz, Martin Gramsch, Sascha Kuhn, Janine Manke, Khanh Dang Ngo and Elmar Weinand Simmons & Simmons LLP Sweden 128 Emma Stuart-Beck, Caroline Krassén, Lave Nilsson, Henrik Schön, Nicklas Thorgerzon and Maria Schultzberg Hong Kong 43 Advokatfirman Vinge Ian Wood Simmons & Simmons Switzerland 135 Michael Isler and Thomas Müller India 50 Walder Wyss Ltd Stephen Mathias and Anuj Kaila Kochhar & Co Taiwan 143 Abe T S Sung and Eddie Hsiung Indonesia 57 Lee and Li, Attorneys-at-Law Abadi Abi Tisnadisastra, Yosef Broztito and Raja S G D Notonegoro AKSET Law United Arab Emirates 150 Raza Rizvi, Muneer Khan and Samir Safar-Aly Simmons & Simmons Japan 64 Ryuichi Nozaki, Yuri Suzuki, Hiroyuki Sanbe, Ryosuke Oue, Takafumi Ochiai and Kenichi Tanizaki United Kingdom 159 Atsumi & Sakai Angus McLean, Penny Miller, George Morris, Darren Oswick, Peter Broadhurst, Kate Cofman-Nicoresti and Ben Player Simmons & Simmons Korea 73 Jung Min Lee, Joon Young Kim and Kwang Sun Ko Kim & Chang United States 171 Matthew Kluchenek and Samuel Kramer Baker McKenzie Malta 81 Olga Finkel, Ruth Galea, Gaby Zammit and Erika Micallef WH Partners 2 Getting the Deal Through – Fintech 2019 © Law Business Research 2018 PREFACE Preface Fintech 2019 Third edition Getting the Deal Through is delighted to publish the third edition of Fintech, which is available in print, as an e-book and online at www.gettingthedealthrough.com. Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross- border legal practitioners, and company directors and officers. Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com. Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editors, Angus McLean and Penny Miller of Simmons & Simmons, for their continued assistance with this volume. London August 2018 www.gettingthedealthrough.com 3 © Law Business Research 2018 Simmons & Simmons INTRODUCTION Introduction Angus McLean and Penny Miller Simmons & Simmons Since its emergence into the public eye a few years ago, the fintech sec- and technologies and work out whether they should be regulated under tor has captured the interest and imagination of entrepreneurs, inves- any existing regimes or if new regulations are required. tors, governments and regulators, not to mention incumbent financial The extent and patchwork nature of these regulatory initiatives is services institutions. Lawyers and regulators around the globe have now such that they are difficult to keep on top of. The latest develop- been grappling with the novel issues thrown up by these new disruptive ment in this area is the announcement, days before this edition went technologies and business models ever since. The sector is now show- to print, of the creation of the Global Financial Innovation Network ing increasing signs of maturity. As the sector evolves so does the com- (GFIN) of regulators. The initiative builds on the UK FCA’s proposal in plexity of the legal and regulatory questions that arise. February 2018 to create a ‘global sandbox’ and is intended to provide a more efficient way for innovative firms to interact with regulators, help- What is fintech? ing them navigate between countries as they look to scale their busi- The term ‘fintech’ is used to describe a very broad range of business nesses. It will also create a new framework for cooperation between types. Peer-to-peer (or marketplace) lending, equity crowdfunding, regulators on innovation-related topics, sharing different experiences remittance, payments, digital currency, personal finance and wealth and approaches. The founder members of the GFIN include regulatory management (including ‘robo-advice’) businesses are all commonly bodies in Abu Dhabi, Australia, Bahrain, Canada, Dubai, Guernsey, captured under the banner. The term ‘fintech’ is also used to refer to Hong Kong, Singapore, the UK and the US. This initiative is a power- start-up and digital-only banks and software businesses that provide ful indication of the growing maturity of the fintech sector because it technology solutions to the financial services industry. This includes reflects the increasing demand from fintech businesses to understand a growing number of ‘regtech’ businesses that offer software to assist the regulatory frameworks in jurisdictions outside their home country financial services businesses in complying with their growing regula- as they look to expand their businesses internationally. tory obligations, and ‘insurtech’ businesses that provide insurance products and technology solutions. Crypto assets The term ‘fintech’ is also increasingly synonymous with the pleth- We commented in the forward to the second edition of this guide ora of businesses and consortia that are investigating ways in which about the novel legal and regulatory issues thrown up by the explosion distributed ledger (or blockchain) technology (the software system that in activity in digital currencies in the first half of 2017. This includes underpins digital currencies such as bitcoin) and artificial intelligence the emergence into the mainstream of initial coin offerings (ICOs) and can be applied to the financial services industry. other digital tokens (‘crypto assets’). The unprecedented level of inter- est in crypto assets during the course of 2017 led to a spectrum of regula- Regulatory impact tory responses. These ranged from bans of crypto exchanges and ICOs Each of these ‘verticals’ has its own unique set of legal issues, but there in China to the enactment of crypto-specific legislation in jurisdictions are important commonalities too; in particular, the impact of financial such as Gibraltar and Malta to encourage the development of crypto- services regulation on the fintech industry. Despite many adopting related businesses in those countries. the stereotypical trappings of Silicon Valley ‘tech’ start-ups (eg, jeans, Crypto assets also made it onto the agenda at the G20 summit in trainers and the odd ping-pong table), fintech businesses are complex Buenos Aries in July 2018. To reflect these developments, we have and very often operate in (or very close to) regulated areas. The burden included two new crypto-specific questions in this edition of the guide of regulatory compliance is difficult for any business to manage, even (see questions 26 and 27) and adapted other questions to