Banking and Finance Law Commons^™

Book Review - Beyond Banks: Technology, Regulation And The Future Of Money, Dan Awrey, (Princeton And Oxford: Princeton University Press, 2024), 292 + Viii Pp., $48 Cad, Benjamin Geva

Articles & Book Chapters

No abstract provided.

Property Rights In Digital Assets Under Uniform State Laws In The United States, Benjamin Geva

Articles & Book Chapters

No abstract provided.

The Digitization Of Money: Stablecoins And Cbdc, Benjamin Geva, Mohammed Muraj

Articles & Book Chapters

Whether tokens are transferable peer to peer or via third party intermediation, through automation, tokenization could deliver gains by greatly speeding up settlement and increase efficiency by ensuring all parts of a transaction occur simultaneously, in what is called atomic settlement. This article addresses only the first model, that of the digital bearer instrument transmitted from a payer to a payee typically in a discharge of a debt. [...]a digital currency transferable under a decentralized protocol - such as (but not only) over a distributed ledger and yet issued centrally - is considered to operate in a "hybrid" scheme. The …

Failure Of Mobile Money Services: Standards For Systemic Risk, Jonathan Greenacre, Benjamin Geva

Articles & Book Chapters

Against an overview analyzing the mobile money system, this article provides a preliminary criterion for determining potential systemic risk of collapse of a mobile money firm (MM firm). The article has two main components: first, defining systemic risk, it clarifies that systemic risk is likely to arise through a delay in returning customers’ funds from an MM firm in insolvency proceedings. Second, the article points out that determining whether this delay will have systemic consequences ought to consider diverse elements, particularly, the range of components of the economy which could be impacted by the failure of an MM firm, the …

The Multimodal Electronic Transferable Transport Record (Ettr) : A Survey Of Laws And Basic Concepts, Benjamin Geva

Articles & Book Chapters

A transport document is a receipt issued by the carrier of goods upon taking possession of them under a contract for their carriage. It is a document of title when its transfer may facilitate not only the transfer of the right to claim the goods from the carrier but also the transfer of title to the goods. Particularly in relation to the carriage of goods other than by sea, and by reference to banking and commercial practices, this study surveys the current legal position of both digitization and negotiability of transport documents. This is done with a view to preparing …

Digital Euro, Monetary Objects, And Price Stability: A Legal Analysis, Corinne Zellweger-Gutknecht, Benjamin Geva, Seraina Neva Grünewald

Articles & Book Chapters

The Eurosystem is mandated to safeguard price stability according to article 127 of the Treaty on the Functioning of the European Union (TFEU). Based on a theoretical and policy-oriented approach, this article sheds light on a second public good with enormous practical relevance both for financial markets and institutions as well as for the general public that the Eurosystem, and ultimately the European Central Bank (ECB), must safeguard according to article 128 TFEU: the availability of ideal monetary objects for the public.While monetary policy constitutes the instrument used to keep prices stable, the availability of ideal monetary objects is ensured …

Digital Euro And Ecb Powers, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht, Benjamin Geva

Articles & Book Chapters

The use of cash in the euro area is declining. Accordingly, the EuropeanCentral Bank is exploring options for the design of a digital euro as a form of central bank money available to the public. This article addresses the key question of whether the Eurosystem is empowered to issue a digital euro and, if so, in what form. Based on a historical, teleological, and systematic interpretation, it argues that Article 128(1) TFEU serves as both a source of competence for the Eurosystem to issue a digital euro and a limitation to that competence. The Eurosystem’s powers are necessarily exclusive and …

Climate Change As Systemic Risk, Barnali Choudhury

Articles & Book Chapters

Hindsight tells us that COVID-19, thought by former President Trump and others to have come out of nowhere, is more aptly labelled a “gray rhino” event, one that was highly probable and preventable. Indeed, despite considerable evidence of the impending threats of pandemics, for the most part, governments failed to prepare for the pandemic, resulting in wide-scale social and economic losses.

The lessons from COVID-19, however, should remind us of the perils of ignoring gray rhino risks. Nowhere is this more apparent than with climate change, a highly probable, high impact threat that has largely been ignored to date. Despite …

The E-Banknote As A ‘Banknote’: A Monetary Law Interpreted, Benjamin Geva, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht

Articles & Book Chapters

This article discusses whether electronic banknotes can properly be characterised as ‘banknotes’, their design as such and what architectural models are available for their issuance by central banks. Issues are addressed under general principles governing the interpretation of monetary laws in the context of evolving technologies and institutional arrangements. The article proposes a clear terminology to address the concepts underlying digital currencies and access to central bank money, and argues that a banknote may be ‘written’ electronically. The stance adopted in the article is critical of both account-based retail central bank digital currency and cryptocurrencies, and highlights the salient features …

Supreme Court Clarifies Risk Of Loss Due To Fraudulent Efts, Christopher Richter, Benjamin Geva, Matthew Angelus, Eli Monas

Articles & Book Chapters

The Supreme Court of Canada released a short

decision on December 10 confirming unanimously that

it is the bank’s customer who bears the risk of loss of an

amount that the bank transferred by electronic payment

order from the customer’s account to a third party as

a result of a phishing scam. The decision adopts the

reasoning of the Québec Court of Appeal and specifies

that it would not have been different if the customer’s

account had been in positive balance. In this case, the

customer’s account was in a debit position.

Ai, Consumer Credit, And Discrimination: A Comparative Look At Canada And The United States, Stephanie Ben-Ishai, Mandy Bedford

Articles & Book Chapters

No abstract provided.

The E-Banknote As A 'Banknote' : A Monetary Law Interpreted, Benjamin Geva, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht

Articles & Book Chapters

The article discusses whether an electronic banknote is a ‘banknote’. The issue is dealt with as a matter of general statutory interpretation in the context of evolving technologies and institutional arrangements. The article proposes a clear terminology to address concepts underlying digital currencies and access to central bank money and argues that a banknote may be ‘written’ electronically. The article is critical of both account-based Central Bank Digital Currency (CBDC) and cryptocurrencies and highlights features of nonblockchain token-based alternatives. It sheds light on considerations affecting the selection of a design which is appropriate from both a functional and legal perspective …

Title Iv: Rights And Obligations In Relation To The Provision And Use Of Payment Services (Chapter 3, Arts 78-93): Execution Of Payment Transactions, Benjamin Geva

Articles & Book Chapters

PSD2 Title IV Chapter 3, consisting of arts 78 – 93, addresses rights and obligations between the payment service user and the payment service provider in connection with the execution of payment transactions. It innovates in providing for the liability of a payment initiation service, a newly defined payment service provider.

Section 1 deals with receipt, refusal and irrevocability payment orders as well as with amounts transferred. By references to all currencies, Section 2 covers execution time and value date. Addressing liability, Section 3, contains rules allocating responsibility in cases of non-execution or defective execution.

Discussion in this book chapter …

Title I: Subject Matter, Scope And Definitions (Art. 1 - Art. 4): The Regulated Field (Object And Subject), Benjamin Geva

Articles & Book Chapters

The PSD2 regulates ‘payment services’ provided within the European Union by ‘payment service providers’ (PSPs). PSPs are identified in art 1(1). ‘Payment services’ are set out in Annex I, to which art 4(3) directs.

Title I, consisting of arts 1 to 4, provides for the subject matter, scope and definitions of the PSD2. In addition to identifying the payment institutions to which the PSD2 applies, art 1 states that the Directive establishes PSPs’ disclosure and contractual framework requirements. Art 2 both provides for and finetunes coverage by addressing currencies and exemptions. Art 3 provides for exclusions. Art 4 sets out …

Book Review - The Legal Concept Of Money, Benjamin Geva

Articles & Book Chapters

If A accepts X in payment from B, in the expectation that he will be able to give it to C in payment ... he almost certainly not make an explicit agreement with C in advance to accept X in payment ... [...]in any society, the question of whether a particular thing is "money" or not can only be answered by examining social behaviour and social norms.4 Accordingly, the author asserts, there is no clear distinction between "money" and "not money". [...]the author addresses monetary sovereignty. [...]under Gersham's law, between coins with lower and higher metallic value, people will prefer …

The Ecb And € E-Banknotes, Corinne Zellweger-Gutknecht, Benjamin Geva, Seraina Neva Grünewald

Articles & Book Chapters

No abstract provided.

Financial Law And Technology: Book Reviews On Mobile Payments And Digital Innovation, Benjamin Geva

Articles & Book Chapters

No abstract provided.

Payment In Virtual Currency, Benjamin Geva

Articles & Book Chapters

By reference to an analysis of the operation of payment in traditional forms of money, this essay explores the meaning of ‘virtual currency’ and the mechanism for payment in it. Endeavoring to identify directions in which events will unfold, the essay sets the stage for a future detailed analysis of pertaining legal aspects.

Breaking The Code: Cryptocurrency And Programming Proposal, Allan C. Hutchinson

Articles & Book Chapters

The problem to be faced in regulating cryptocurrency is the general thrust of the ‘governance paradox’—how do you regulate an innovative scheme that demands some regulation in the public interest, when you know that any regulation will transform the very features of that scheme that not only makes it what it is, but also makes it especially useful and attractive to that same public? More specifically, how do you regulate an off-the-grid, decentralized and distributed scheme without making it into an on-the-grid, centralized and undistributed scheme? This is the challenge to be met in devising any kind of proposal to …

Electronic Payments: Guide On Legal And Regulatory Reforms And Best Practices For Developing Countries, Benjamin Geva

Articles & Book Chapters

Electronic payments (e-payments) occur whenever payment instructions, initiated by a device such as a computer or mobile phone, enter a payments system via the Internet or any other telecommunications network. E-payments can be assisted by non-banking channels. They enhance the speed, efficiency and safety of payments. However, to reap all such benefits, e-payments require new legal and regulatory solutions to accommodate both the promise and risks inherent in the quickening pace of development. This Guide sets out a general framework addressing e-payment systems in a broad international/cross-border context, as well as addresses regulatory principles, risk of legal uncertainty and e-payments …

Consumer Protection Issues And Non-Banks: A Comparative Analysis, Stephanie Ben-Ishai

Articles & Book Chapters

The same millennials who spend all their money on avocado toast might not be looking to traditional banks to obtain mortgages or invest their limited funds because they don't have the requisite credit scores or resources to save money. This generation has also seen too many movies about Wall Street disasters and may have decided they don't want to give Leonardo DiCaprio money to "buy wolves." They've been working any number of jobs that don't offer pensions or benefits; they often live paycheck to paycheck; and the prospect of borrowing money from or depositing money at a mainstream bank when …

Payment Transactions Under The E.U. Second Payment Services Directive – An Outsider’S View, Benjamin Geva

Articles & Book Chapters

In its proposal for a Directive on payment services in the internal market (hereafter: the Proposal), the Commission of the European Communities (“the Commission”) purported to provide for “a harmonised legal framework” designed to create “a Single Payment Market where improved economies of scale and competition would help to reduce cost of the payment system.” Being “complemented by industry’s initiative for a Single Euro Payment Area (SEPA) aimed at integrating national payment infrastructures and payment products for the euro-zone,” the Proposal was designed to “establish a common framework for the Community payments market creating the conditions for integration and rationalisation …

Non-State Community Virtual Currencies, Benjamin Geva, Dorit Geva

Articles & Book Chapters

Community currencies are means of payment issued other than by the State, for voluntary use side by side with State-issued (that is, national) currency, either in a particular geographical area or by a group of users. This chapter deals with them as their media have been transforming from paper to digital. Discussing legal aspects of digital community currencies as monetary objects, this chapter combines an analysis general to the law of community currencies, as applied to community currencies regardless of the media in which they are embodied, with an analysis of the general law governing digital currencies as applied to …

Cryptocurrencies And The Evolution Of Banking, Money And Payments, Benjamin Geva

Articles & Book Chapters

This paper explores cryptocurrencies against the backdrop of the history of monetary, banking and payment systems, from a legal perspective. Providing a historical overview beginning in Antiquity, it explores just how today’s cyber revolution compares against some key predicate operations, and situates cryptocurrencies in the context of the long-running evolution of bank payment intermediation and monetary development.

Impacts Of Investment Treaties On Health And Human Rights, Gus Van Harten

Articles & Book Chapters

While investment treaties could help protect health and promote human rights, they are rather often used as a means to discourage governments from taking action. The treaties allow foreign investors to initiate investor-state dispute settlement (or ISDS) proceedings against states for their legislative, executive, administrative, and judicial decisions at any level. Thus, they provide a powerful tool for “foreign” investors to frustrate state action in virtually any area, including health and human rights. This article describes how ISDS provisions have impacted health-related decision- making by states and, in so doing, weakened their abilities to fulfill their human rights obligations.

Can Soft Regulation Prevent Financial Crises?: The Dutch Central Bank's Supervision Of Behavior And Culture, John M. Conley, Cynthia A. Williams, Lodewijk Smeehuijzen, Deborah E. Rupp

Articles & Book Chapters

Financial regulation has traditionally been “hard”: national legislatures and regulators (and sometimes international bodies) require certain kinds of behavior and forbid others, on pain of business sanctions, fines, or even criminal penalties. When a financial crisis happens, the usual after-the-fact response is more hard regulation. That pattern goes back at least to the 1929 market crash that precipitated the Great Depression.

But financial crises still occur, leading many observers to wonder if what the financial world needs is a way to identify those pathological risk-takers in advance and, perhaps more importantly, to make sure that the financial institutions that employ …

Is Cryptocurrency Money And Why Does It Matter?, Benjamin Geva

Articles & Book Chapters

The emergence of Bitcoin heralded the era of crypto and digital currencies designed for use in the general economy. But are these new currencies considered money and is current Canadian law adequate to accommodate them as money?

What You Need To Know

• Cryptocurrency denotes a digital currency in which encryption techniques are used to regulate the generation of units of currency and verify the execution of payment transactions on a decentralized network.
• "Money" is an element in definitions that determine the scope of a few statutes. As well, unlike property in general, money passes to a taker in good faith …

Is Cryptocurrency Money And Why Does It Matter?, Benjamin Geva

Articles & Book Chapters

No abstract provided.

Leaders In The Expansive And Restrictive Interpretation Of Investment Treaties: A Descriptive Study Of Isds Awards To 2010, Gus Van Harten

Articles & Book Chapters

This article provides an empirical analysis of interpretive discretion in investor–state dis- pute settlement (ISDS). Since the late 1990s, foreign investors have brought hundreds of investment treaty claims against states, leading to numerous awards in which arbitrators have interpreted investment treaties. Arbitrators may resolve ambiguities in the treaties in expansive or restrictive ways, thereby affecting the compensatory promise of ISDS for foreign investors and corresponding risks for states. Which arbitrators have contributed most to expansive or restrictive approaches? To examine this question, data was analysed on arbitrators’ resolutions of contested legal issues, such as the permissibility of parallel or minority …

Central Bank Digital Currencies: The New Era Of Mondern-Day Banking, Benjamin Geva

Articles & Book Chapters

An internal report submitted in March to the Committee on Payments and Market Infrastructures (CPMI) of the Bank for International Settlements (BIS), presents an initial analysis of Central Bank Digital Currency (CBDC).

What You Need To Know

• The report poses no immediate legal implications.
• Lawyers and policy makers ought to be prepared to engage in discussions which lead to decision making as to such developments as well as to address the developments as they arise.
• The introduction of a CBDC in one jurisdiction could adversely affect others. Central banks that have introduced or are seeking to introduce a CBDC should …