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WP/20/75 Fintech and Payments Regulation: Analytical Framework by Tanai Khiaonarong and Terry Goh IMF Working Papers describe research in progress by the author(s) and are published to elicit comments and to encourage debate. The views expressed in IMF Working Papers are those of the author(s) and do not necessarily represent the views of the IMF, its Executive Board, or IMF management.2020 International Monetary Fund WP/20/75 IMF Working Paper Monetary and Capital Markets Department Fintech and Payments Regulation: Analytical Framework Prepared by Tanai Khiaonarong and Terry Goh* Authorized for distribution by Jihad Alwazir May 2020 Abstract Financial technology (Fintech) has prompted authorities to consider their potential financial stability benefits, risks, and effective regulation. Recent developments suggest that regulatory approaches and their legal foundations need to augment entity-based regulation with increasing focus on activities and risks as market structure changes. This paper draws on recent international experiences in modernizing legal and regulatory frameworks for payment services. An analytical framework based on a four-step process is proposed(i) identifying payment activities; (ii) licensing entities and designating systems; (iii) analyzing and managing risks, and (iv) promoting legal certainty. As payment activities evolve and potential systemic risks heighten, adherence to international standards and additional regulatory requirements should be warranted. JEL Classification Numbers: E42 E58 E59 G28 K20 O38 Keywords: Fintech, payment services, central bank, regulation Authors E-Mail Address: tkhiaonarongimf; *Terry Goh was formerly with the Monetary Authority of Singapore. We thank Wouter Bossu, Jess Cheng, Simon Gray, Dong He, Kathleen Kao, Aditya Narain, Harish Natarajan, Kristel Poh, Alexandre Stervinou, Jan Vermeulen for helpful comments and suggestions. An earlier version was presented at the Joint European Central BankNational Bank of Belgium Retail Payments Conference in Brussels on November 27, 2019. Karen Lee helped with research and Wifianni Wirsatyo provided editorial assistance. IMF Working Papers describe research in progress by the author(s) and are published to elicit comments and to encourage debate. The views expressed in IMF Working Papers are those of the author(s) and do not necessarily represent the views of the IMF, its Executive Board, or IMF management. Disclaimer: This document was prepared before COVID-19 became a global pandemic and resulted in unprecedented economic strains. It, therefore, does not reflect the implications of these developments and related policy priorities. We direct you to the IMF Covid-19 page that includes staff recommendations with regard to the COVID-19 global outbreak3 Contents Page Abstract .2 Glossary .5 I. Motivation for Analytical Framework .6 II. Step OneIdentifying Activities as Payment Services .8 A. Payment Services .8 B. Mobile Money and Payments .11 C. Digital Payment Tokens .12 III. Step TwoLicensing Entities and Designating Systems .13 A. Licensing Entities for Prudential Supervision .14 B. Designating Payment Systems for Oversight .16 IV. Step ThreeAnalyzing and Managing Risks .19 A. Funds Protection .20 B. Financial Integrity .21 C. Cyber and Data Security .22 D. Access to Payment Systems .23 E. Interoperability .25 V. Step FourPromoting Legal Certainty .25 VI. Policy Issues for Central Banks .29 A. Payments Stability.29 B. Financial Stability .30 C. Monetary Stability .31 VII. Conclusion .32 References .33 Tables 1. Big Tech Payment Activities .10 2. Licensing of Payment-Related Activities .16 3. Payment Infrastructures and Regulation .19 4. Risk MapRating Payment Activities by Their Potential Impact .19 Figures 1. Analytical Framework for Payments Regulation .8 2. Taxonomy of Payment Services .9 3. Global Mobile Money Transaction Values by Activity and Region in 2018 .11 4. Licensing and Designation of Nonbank Payment Service Providers .13 5. Key Considerations for Promoting Legal Certainty .264 Boxes 1. European UnionPayment Activities of Telecom Operators .12 2. Regulation of Digital Payment Tokens in Selected Jurisdictions .14 3. Licensing and Threshold Values in Selected Jurisdictions .17 4. CanadaLegal Reforms for Retail Payments Oversight .26 5. European UnionKey Legislations for Payment Related Activities.28 Appendix 1. Licensing Practices for Mobile Network Operators by Region .365 GLOSSARY AI Artificial Intelligence AML Anti-Money Laundering API Authorized Payment Institution BCBS Basel Committee on Banking Supervision BIS Bank for International Settlements CBR Correspondent Banking Relationship CPMI Committee on Payments and Market Infrastructures CPSS Committee on Payment and Settlement Systems EC European Commission ELMI Electronic Money Institution (in the European Union) EMI Electronic Money Institution (in the United Kingdom) EU European Union EUR Euro FATF Financial Action Task Force FINMA Swiss Financial Market Supervisory Authority FMI Financial Market Infrastructure FSB Financial Stability Board GSC Global Stablecoin GSMA Groupe Speciale Mobile Association IADI International Association of Deposit Insurers ICO Initial Coin Offering IMF International Monetary Fund ML Machine Learning MNO Mobile Network Operator MPI Major Payment Institution (in Singapore) ORPS Other Retail Payment Systems OTC Over the Counter PFMI Principles for Financial Market Infrastructures PI Payment Institution PIRPS Prominently Important Retail Payment Systems PPS Postal Payment Service PS Act Payment Services Act of Singapore PSD2 Payment Services Directive 2 of the European Union PSP Payment Service Provider SGD Singapore Dollar SIPS Systemically Important Payment System SPI Standard Payment Institution (in Singapore) SPI Small Payment Institution (in the United Kingdom) SWIPS System-Wide Important Payment Systems TA Technical Assistance UNCITRAL United Nations Commission on International Trade Law VA Virtual Asset VASP Virtual Asset Service Provider6 I. MOTIVATION FOR ANALYTICAL FRAMEWORK Financial technology (Fintech) has prompted authorities to consider their potential financial stability benefits, risks, and effective regulation. 1 Payments, clearing and settlements is one area where material fintech developments and experimentations have rapidly evolved. This spans across large-value, retail, and cross-border payments. Changes in the retail payment services landscape is among the most visible so far. Motivations have been varied, including promoting cashless-ness, competition, financial inclusion, financial integration, and innovation to addressing correspondent banking relationship (CBR) withdrawals (IMF, 2017). While there are no compelling financial stability risks given the small size of fintech relative to the financial system, growth in such activities and the supervisory and regulatory issues have merited authorities attention (IMF, 2019; FSB, 2017a). Authorities regulate payment systems and payment service providers (PSPs) for many reasons. They include: to maintain the integrity of the monetary system, safeguard financial stability by ensuring final settlement of monetary transfers, and protect consumers with regards to non-currency money (commercial bank book money and e-money) that entail credit risks. Fintechs impact on financial stability may also change quickly with the market entrance and expansion of large technology firms into payment services. Fintech developments suggest that regulatory approaches and their legal foundations need to augment entity-based regulation with increasing focus on activities-based approaches, as market structure changes. Financial regulation has been traditionally based on the regulation of types of entities or intermediaries performing broad functions such as payment systems (He et al., 2017). Licensing regimes will need to be redesigned to bring new types of service providers within the regulatory perimeter, where appropriate, including fintech and large technology firms, or Big Tech (BIS, 2019; FSB, 2019a; Frost et al., 2019; Restoy, 2019). Some jurisdictions have modernized their legal and regulatory framework for payment services, using an activity-based and risk-focused approach. 2 Modernization efforts have aimed to foster safety, efficiency, innovation and competition. New business models for payment services have blurred the lines of payment related products that may for example, require licensing as an electronic money issuer and a money remittance business, leading to overlapping regulation; or gaps in regulation if the product is licensed as one but not the other. In modernizing the oversight framework, there is thus a need to align relevant 1 The Bali Fintech Agenda proposed a framework that focused on 12 relevant elements, including financial sector resilience, risks, and international cooperation (IMF/World Bank, 2018). Payments and settlement systems, and central bank digital currency were among the key issues identified as meriting further attention (IMF/World Bank, 2019). 2 For illustration, this has included the European Union and Singapore. Canada has also initiated reforms to the oversight framework for retail payments (Department of Finance Canada, 2019).7 regulations and amend the scope of regulated activities to facilitate new business models and payment entities. At the same time, these new business models present emerging risks which may not be addressed, or adequately addressed, under current regulatory regimes. This paper proposes an analytical framework for regulating retail payment services and is aimed at strengthening their oversight and supervision. This is particularly relevant for countries whose retail payment oversight frameworks are evolving in response to the changing financial landscape. While there is currently a lack of international standards, there are emerging best practices. 3 Recent experiences are largely drawn from the European Union, Singapore, the United Kingdom and other relevant jurisdictions. 4 The analytical framework is organized around four key steps (Figure 1). Although laid out in a sequential manner, certain steps in the framework may need to occur contemporaneously. That is, promoting legal certainty could be generally applicable throughout, and identifying and addressing regulatory gaps could be an exercise that is specifically sequenced. The remainder of the paper discusses each step. Section II identifies activities that are considered payment services. Section III discusses licensing and designation. Section IV examines the major risks and their management. Section V considers legal certainty. Section VI discusses policy issues for central banks. Section VII concludes. 3 International principles and guidance of relevance have focused on systemically important payment systems (CPSS, 2001), oversight of payment and settlement systems (CPSS, 2005), national payment system development (CPSS, 2006), international remittance services (CPSS/World Bank, 2007), financial market infrastructures (CPMI/IOSCO, 2012), and payment aspects of financial inclusion (CPMI/World Bank, 2016). 4 Nearly half of the regulatory agencies surveyed by the Basel Committee on Banking Supervision have considered new regulations or guidance related to Fintech (BCBS, 2018).Figure 1. Analytical Framework for Payments Regulation Source: Authors. II. STEP ONEIDENTIFYING ACTIVITIES AS PAYMENT SERVICES A. Payment Services The first step of the framework is to identify if an economic activity undertaken by the entity is a payment service. Their identification helps to design effective oversight and supervisory frameworks, while avoiding unnecessary overlaps and/or duplication of regulatory efforts. International experiences suggest that such activities could be organized into 6 groups, including: (i) account issuance; (ii) electronic money issuance; (iii) domestic funds transfer; (iv) cross-border funds transfer; (v) merchant acquisition; and (vi) digital9 payment tokens (Figure 2). 5 These mainly relate to services delivered to payment service users, and are not focused on payment systems. Figure 2. Taxonomy of Payment Services Source: Adapted from EU Payment Services Directive 2 and Singapore Payment Services Act. See full details in the legal instruments. Explicit payment service laws help provide clarity on the activities. The EU Payment Services Directive 2 (PSD2) of 2015 (Article 4) provides a definition for payment services as any business activity associated with 8 types of activities annexed to the Directive. 6 5 This list is not exhaustive and could differ by jurisdiction. Some jurisdictions have introduced regulatory sandboxes, which is not in the scope of this paper. For illustration, see IMF (2019). Other new forms of payment services have included third party initiation, tokenization, payment gateways, payment aggregators, and white label ATM/POS providers, which are not in the scope of this paper. Digital payment token services are included based on recent market and regulatory developments. 6 The EU PSD2 (Annex 1) groups payment services as: (i) services enabling cash to be placed on a payment account as well as all the operations required for operating a payment account; (ii) services enabling cash withdrawals from a payment account as well as all the operations required for operating a payment account; (iii) execution of payment transactions, including transfers of funds on a payment account with the users PSP or with another PSP; (iv) execution of payment transactions where the funds are covered by a credit line for a payment service user; (v) issuing of payment instruments and/or acquiring of payment transactions; (vi) money remittance; (vii) payment initiation services; and (viii) account information services.10 Singapores Payment Services Act (PS Act) of 2019 defines payment activities into 7 categories for the purpose of licensing (Part 2, Section 6; Part 1 of the First Schedule). 7 Certain payment activities could be excluded from payment service laws. The EU PSD2 (Article 3) determines its non-applicability to 15 payment activities such as cash, paper-based payment instruments (checks, drafts, vouchers, postal money orders), and ATM cash withdrawal services in the EU. 8 The Singapore PS Act (Part 2, Section 13) exempts certain persons and entities from the requirement to have in force a license to carry on a business of providing any payment service, and describes clearly activities that are not considered payment services (Part 2 of the First Schedule) in Singapore. Big Techs also handle payment services as part of e-commerce with some offering them as independent business units. Their business models leverage on their data analytics, network externalities, and interwoven activities, coupled with distinct platforms that process and settle payments, including: (i) overlay system (using third-party infrastructures such as credit
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