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Abstract

964The current EU regulatory regime of Central Counterparties (CCPs) falls short of addressing adequately the potential misalignment of incentives of CCPs' shareholders on the one hand and clearing members on the other hand.Thus, according to the European Market Infrastructure Regulation (EMIR), while clearing members contribute substantially to the default waterfall of a CCP, they do not enjoy substantial governance rights: they merely participate in the risk committee of the CCP, whose role is only advisory.By contrast, although shareholders are vested with substantial governance rights, such as the right to appoint the members of the board which sets the CCP's risk profile, they do not bear final losses first, as in ordinary companies: the shareholders' contribution to a CCP's default waterfall is limited and, in case the CCP enters resolution, they only bear losses, in principle, after the clearing members.It is however clear that when the owners of a firm are not the ones bearing the risks first, the firm may be inclined to excessive risk-taking. The objective of this article is therefore to discuss a number of ways to improve the corporate governance of CCPs, in particular the incentive setting for shareholders.965

In only one decade, cryptocurrencies have witnessed significant growth, with Bitcoin being the most dominant one. They are not efficient payment methods, although they bring some benefits linked to the underlying technology they use (Blockchain). In reality, they function more as investment assets than as payment instruments and pose various risks, which are very similar to those encountered on capital markets (price volatility, fraud, market manipulation). In order to deal with these risks, regulation should apply to intermediaries who provide services in relation to cryptocurrencies, such as crypto wallets, operation of crypto exchanges and brokerage. To this end, the European legislator should consider two options. It could, on the one hand, bring cryptocurrency service providers within the scope of the existing financial services regime and thus modify MIFID II in order to include cryptocurrencies in the list of financial instruments. The European legislator could also, on the other hand, aim at creating a new appropriate and proportionate regime that draws on the existing one. Insofar as the existing regulatory framework was not designed with cryptocurrencies in mind and as some of the current rules may not be tailored to the specificities of these assets, the second option is preferable.