Jurisdictional arbitrage: combatting an inevitable by-product of cryptoasset regulation

Abstract

Purpose This paper aims to provide an overview of different issues related to jurisdictional arbitrage found in general regulatory arbitrage literature and their projection to the specific area of cryptoasset regulation. Design/methodology/approach By distinguishing any parallel, analogous and neighbouring concepts, this paper attempts to clarify the notion of jurisdictional arbitrage. By discussing certain aspects and effects of three regulatory regimes, BitLicense, 5th Anti-Money Laundering Directive (AMLD5) and the European Commission’s Proposal for a Regulation on Markets in Crypto-assets (MiCa), it makes clear that national/State/regional policymakers have already failed to create arbitrage-proof regulatory frameworks by acting exclusively within their jurisdictional limits. Against this background, this paper discusses briefly regulatory competition and international harmonisation as alternative solutions to inappropriate and ineffective national/regional legislative approaches. Findings Based on a structured theoretical analysis, this paper reaches three important findings. First, academics, international bodies and other commentators use inaccurately the general concept of “regulatory arbitrage” to refer to the specific problem of jurisdictional arbitrage creating in this way an interpretative confusion; second, commentators confuse jurisdictional conflicts with jurisdictional arbitrage; third, the solutions to this regulatory problem can actually be found in its underlying causes. Originality/value To the best of the author’s knowledge, this is the first specific-issue paper on jurisdictional arbitrage in the context of cryptoasset regulation and aims to trigger further academic discussion on this evolving phenomenon and inform the development of future cryptoasset regulation combatting this problem.

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