Regulators are Coming for the DeFi Goose and Its Golden Eggs
There are two big sources of ambiguity: one is conceptual and linguistic, and the other relates to international consistency. DeFi’s survival is “guaranteed” by the fact that it’s much too lucrative for governments to completely hobble it.
Regulation is becoming a very hot topic in the crypto industry as governments try to understand how they should respond to this still relatively new phenomenon. With United States-based crypto companies now fighting the infrastructure bill battle in the House after a defeat in the Senate, the industry could potentially look very different in a few years, after recently proposed rule changes have been implemented.
Various sub-sectors within crypto will likely be affected in different ways by incoming regulation, but one area that may be affected more than most is decentralized finance (DeFi). This is largely because, due to its arguably decentralized nature, it would potentially be very hard to carry out know-your-customer (KYC) and anti-money laundering (AML) checks on users if it becomes truly decentralized.
According to industry figures who spoke to Cryptonews.com, DeFi is currently dogged by vagueness, ambiguity and inconsistency in the application of existing rules, as well as proposed new laws. However, while most observers agree that DeFi will likely suffer from ongoing regulatory uncertainty in the short-to-medium term, they also say that regulators will ultimately choose to adopt guidelines that nurture – rather than nuke – the fledgling sector.
Ambiguity...and more ambiguity
The aforementioned infrastructure bill provides a good example of the kind of minefield that current and incoming regulations present to the DeFi world.
The original draft of the bill included decentralized exchanges and peer-to-peer marketplaces in its definition of “broker,” thereby encompassing much of DeFi with its proposal to subject all “brokers” to the requirement to report large transactions to the Internal Revenue Service (IRS).
Coin Center executive director Jerry Brito celebrated an amendment that sought to remove both decentralized exchanges and peer-to-peer marketplaces from the scope of the bill. However, a subsequent proposed amendment proposed altering the language yet again, so that only proof-of-work mining appeared to be excluded by the new definition of “broker.”
This isolated example illustrates just how tricky it will be for DeFi players to navigate future regulations.
But there are plenty more examples of this kind of lack of clarity and certainty. It’s a common feature of pretty much all laws and regulations that will affect the DeFi sector, from the European Commission’s recent anti-money laundering proposals to the Financial Action Task Force (FATF)’s soon-to-be-revised guidelines.
There are two big sources of ambiguity: One is conceptual and linguistic, and the other relates to international consistency.
Anndy Lian, the Chairman of the crypto exchange BigONE and the Chief Digital Advisor to the Mongolian Productivity Organization, said,
“At the FATF recent Plenary meeting in June this year, a key takeaway was the concern around the apparent lack of consensus across different jurisdictions and between industry players regarding the best way to comply with the Travel Rule. And while the private sector has led the way in developing solutions to enable implementation of the Travel Rule, ‘a majority of jurisdictions have not yet implemented the FATF’s requirements.’”
For Lian, the real issue and challenge for the DeFi sector is the uneven compliance with the Travel Rule across jurisdictions, which “poses real headaches for both DeFi businesses and their customers.”
But in terms of incoming and future regulation, there’s also a big problem related to semantics and conceptual clarity. According to the MakerDAO (MKR) community member PaperImperium, technical terms aren’t used consistently by regulators and the crypto industry, making it unclear as to what exactly policymakers want.
PaperImperium told Cryptonews.com:
“A great example of this is the debate around stablecoins. As the Gorton-Zhang paper from a few weeks ago makes clear, later confirmed by private discussions, even a term as simple as ‘stablecoin’ has a different meaning in policy circles than in the cryptoverse.”
Most people working within crypto would use the term “stablecoin” to signify any token that is purposefully trying to remain in a price band around a given benchmark. However, PaperImperium said, “policymakers and regulators are generally talking about redeemable-upon-demand-for-fiat tokens to the exclusion of algorithmically managed tokens.”
This creates a big headache for stablecoins such as DAI, which is generated by MakerDAO. In fact, prior to the recent infrastructure bill, the Democratic Representative Don Beyer has put forward a draft bill that would effectively outlaw all stablecoins that don’t meet certain regulatory criteria and aren’t registered by their issuer. The latter condition is something that DAI, for instance, could never meet.
Still, most people working within DeFi claim that regulation is not only inevitable, but good for the sector in the long term.
Layerzero, a member of MakerDAO’s Sustainable Ecosystem Scaling Core Unit Team, explained:
“I believe regulation is necessary and a sign that the industry matures. Not having legal certainty is a risk that hinders future growth.”
And Layerzero added,
“I welcome good regulation that provides legal certainty to market participants and that doesn’t hinder innovation, but of course, this is hard to achieve. The problem is that the current regulatory framework is outdated and was not designed for decentralized ledger technology.”
DeFi’s golden eggs
New proposals are coming thick and fast at the moment, and it’s uncertain what regulatory hurdles the DeFi ecosystem will have to clear in the months and years to come. It’s also uncertain whether all soon-to-be-imposed hurdles will actually be clearable, and whether further growth in DeFi sector might become somewhat restricted as a result.
Still, DeFi industry players estimate that the sector will endure for a long time to come, even if its mature form may be somewhat different from how it is now.
For Skirmantas Januškas, the CEO and Co-founder of DappRadar, DeFi’s survival will be guaranteed by the fact that it’s much too lucrative for regulators and governments to completely obliterate.
He told Cryptonews.com:
“The sheer amount of wealth generated and locked into our industry – especially now, at a time when governments inject trillions into the economy by way of rescue packages to the detriment of, say, infrastructure and other long-term needs that must also be met – makes us the proverbial goose that laid the golden eggs. And the act of laying golden eggs is a potentially taxable event.”
Given that DeFi went from USD 1 billion in total value locked in to around USD 90 billion in just under a year (according to DeFi Pulse), most governments will want to extract a portion of the value it has generated for tax and public spending. In other words, they will seek to avoid imposing too-stringent regulation.
“Regulators worldwide will likely seek to capitalize on our industry, just as we crypto natives have, and this places us in a very strong position in a dialogue that is only just starting. And while it may take years of regulations being proposed, effected, repealed, before we come to a solution that safeguards consumers’ and governments’ interests and still harbors innovation, the regulations that do come into force will likely work to DeFi’s advantage in the long run.”
Anndy Lian agreed that DeFi will be too profitable to simply kill off with regulation, regardless of how that regulation will end up looking in a few years. In his view (as someone who actually does advise governments), DeFi poses both opportunities and challenges for governments and regulators emerging from the coronavirus pandemic.
“The task for the DeFi sector is to carry on educating governments and regulators on the benefits of DeFi especially in parts of the world where banking is hard to access, and in promoting crypto entrepreneurship for the future. Nevertheless, governments are trying to know more to get themselves fitted with the new DeFi trends.”
The question is: how long will DeFi need to wait until authorities produce the clear regulations the sector needs to grow sustainably?
“In some areas, like tax or AML, it’s a matter of months. In some others, it’s unrealistic to expect full regulatory clarity even within years,” said Jacek Czarnecki, the Global Legal Counsel at MakerDAO.
Given the likely lengths of time involved, Czarnecki suggested that new DeFi projects should definitely engage in dialogue with regulators and policymakers.
Czarnecki told Cryptonews.com,
“We have pioneered such activities at Maker, and have been meeting with both multiple national regulators (including central banks) as well as international organizations (e.g. the OECD, FATF, the Financial Stability Board) since 2018. That has helped us gain trust and awareness among the regulatory community.”