With the US Securities and Exchange Commission (SEC) overseeing investment vehicles and securities assets and the CFTC regulating trading in commodity derivatives, Dan Berkovitz said this could leave a regulatory gap for digital assets. Therefore, he believes that minor amendments need to be made to the securities and commodities laws regarding the supervision of the cryptocurrency market.
“Current commodity and securities laws are sufficient to regulate the derivatives and securities markets. These laws are flexible enough to accommodate emerging technologies such as cryptocurrencies and blockchain. However, some clarifications need to be made to them,” Berkowitz said.
He is confident that there is not a big “gap” between the CFTC and the SEC in regulating digital assets. Congress should only give agencies additional authority to oversee crypto assets in the spot market. According to a former CFTC commissioner, the two agencies coordinate on cryptocurrency issues just as they do on other issues where their powers overlap. Berkowitz acknowledged that the CFTC and SEC do not always have the same views regarding crypto assets, but this is not a big disagreement.
However, the CEO of blockchain analysis company Merkle Science, Mriganka Pattnaik, is confident that the development of cryptocurrency legislation in the United States will not be a panacea. Hastily adopting half-baked policies to regulate crypto assets will do more harm than good. The powers of agencies could overlap, creating confusing precedents that would hamper innovation, Pattnaik worries.
He believes it is critical that legislation clearly defines the role of the CFTC and SEC in regulating cryptocurrencies. This means that any asset subject to securities laws should not be subject to CFTC authority. Still, the CFTC must evaluate whether the asset meets its listing, disclosure, and fundamental principles criteria.
In May, Berkowitz suggested that ETH could be dual-regulated, being classified as both a security and a commodity, since both definitions overlap. Late last year, Berkowitz left the SEC over alleged informal connections with the former head of the bankrupt crypto exchange FTX, Sam Bankman-Fried.
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