Law and Practice of Crowdfunding and Peer-to-Peer Lending in Australia, China and Japan

ISBN-13: 9789811938368 / Angielski / Miękka / 2023

Pelma Rajapakse;Yinxu Huang;Hatsuru Morita

Opis

The revolution in financial technology (FinTech) has created many advancements in the lending and investment space across the world. Law and Practice of Crowdfunding and Peer-to-Peer Lending in Australia, China, and Japan is a timely publication as FinTech grows up and moved into the mainstream of finance in the last decade. Financial services is a highly regulated industry as it is the lifeblood of a modern economy. Pelma Rajapakse, Hatsuru Morita, and Yinxu Huang have done very solid work blazing a new trail in what is a new industry and how to regulate it properly instead of stifling innovation. They have carried out a deep exploration and a thorough compilation of research that will bring everyone up to date on what Australia, China, and Japan are planning and doing in the field of crowdfunding and peer-to-peer lending. In addition to peer-to-peer lending, the book focuses on laws and practices related to Central Bank digital currencies, cryptocurrency, Bitcoin, and Initial Coin Offerings (ICOs) which is very meaningful and forward-looking.   The authors presented their thoughts in such clarity that, even those who lack familiarity with Asia-Pacific, will see how FinTech was growing in various ways driven by different factors. For example, peer-to-peer lending in Japan is mostly for small and medium enterprises. It was popular in China but cracked down by the authorities for a few years. It provides an alternative fundraising channel for the capital market in Australia. We also see a set of regulatory approaches among jurisdictions. Some countries draft new regulations, while others amend existing laws. The mechanism of the regulatory sandbox was introduced. As we know, one size does not fit all. What kind of best practices or lessons learned can we apply to our own jurisdiction? This book covers all available answers to date. This volume speaks highly of the quality and foresight of Pelma Rajapakse and her co-authors.

Spis treści

PART 1

LAW AND PRACTICE OF CROWDFUNDING AND P2P LENDING IN AUSTRALIA

 

CHAPTER 1:  MARKETPLACE LENDING AND ITS DEVELOPMENT IN AUSTRALIA

1.1          Types of Crowdfunding and Peer-to-peer Lending Models

1.2          Development of the Industry

                        1.3       P2P Lending Process

                                    1.3.1    Application process

                                    1.3.2    Matching an investor with the borrower

                                    1.3.3    Account set-up and on-going management

                        1.4       Operating Models

                                    1.4.1    Managed investment funds model

                                    1.4.2    Securities model

                                    1.4.3    Derivatives model

                                    1.4.4    Financial market model

                        1.5       International Comparison: UK and USA

                        1.6       P2P Lending Product Lines

                        1.7       Interest Rate and Fees

                                    1.7.1    Fees

                                               

CHAPTER 2:  KEY PARTICIPANTS IN AUSTRALIA AND COMPARISON OF PEER-TO-PEER LENDERS WITH TRADITIONAL BANKS

                        2.1       Key Participants in Australia

2.2        Role of the Industry

2.3        Future of P2P Lending

2.4        Advantages and Disadvantages of Offerings

 

 

CHAPTER  3: CHALLENGES FOR PEER-TO-PEER LENDING BUSINESS MODELS AND BANKS

                        3.1       Regulatory, Technological, Innovation and Marketing

3.2       Challenges the Marketplace Lending may Pose to Traditional  Intermediation

 

CHAPTER 4:   DEVELOPMENT OF VIRTUAL CURRENCY AND ICOs IN AUSTRALIA

4.1       Digital Currency, Virtual Currency and Cryptocurrency Bitcoin and Virtual Currency           

                        4.2       Digital Currencies: Risks and Opportunities

                        4.3       The Bitcoin

                        4.4       Initial Coin Offerings (ICOs)

                                    4.4.1    Some issues pertaining to ICOs

                        4.5       Regulation of ICOs in Australia

                        4.6       Bitcoin and other Cryptocurrencies in Australia: Tax Treatment 

                        4.7       Summary

 

CHAPTER 5:  REGULATORY AND POLICY REFORMS IN P2P LENDING IN AUSTRALIA

                        5.1       Managed Investment Funds Model and P2P Lending

                                    5.1.1    MIS regime for P2P lending

                                    5.1.2    Operating requirements

5.1.3    Disclosure obligations

                        5.2       Australian Financial Service (AFS) Regime and P2P Lending

                                    5.2.1    Disclosure obligations

                                    5.2.2    Operating requirements

                        5.3       Consumer Credit Regime and P2P Lending

                                    5.3.1    Responsible lending obligations

                                    5.3.2    Disclosure obligations

                                    5.3.3    Operating requirements

                        5.4       Securities Model and P2P Lending

                                    5.4.1    Securities regime

                                    5.4.2    Disclosure obligations

                                    5.4.3    Operating requirements

                                    5.4.4    AFS Regime for securities issuers

                                    5.4.5    Consumer credit regime for securities issuers

                        5.5       Derivatives Model and P2P Lending

                                    5.5.1    Derivatives regime

                                    5.5.2    Operating requirements

                                    5.5.3    AFS regime for derivatives issue

                                    5.5.4    Consumer credit regime for derivatives issue

                        5.6       Financial Market Model

                                    5.6.1    Consumer credit regime for financial market operators

                        5.7       Comparative Regulatory Frameworks

                                    5.7.1    Regulatory approach in the United Kingdom

·         Loan-based crowdfunding

·         Investment-based crowdfunding

·         Collective investment schemes

2              5.7.2    Regulatory approach in the United States

·         Securities regulations

3              5.7.3    Regulatory approach in Australia for crowd-sourced equity funding

                        5.8       Moving Forward

                       

 

PART II

LAW AND PRACTICE OF CROWDFUNDING AND P2P LENDING IN CHINA 

 

CHAPTER 6:  MARKETPLACE LENDING AND ITS DEVELOPMENT IN CHINA

6.1 Relevant Background: Perspective of History and Market

6.2 Types of Crowdfunding and Peer-to-peer Lending Models

6.2.1 Donation-based crowdfunding

6.2.2 Reward-based crowdfunding

6.2.3 Loan-based crowdfunding (P2P lending)

6.2.4 Equity-based crowdfunding

6.3 Scenarios of Typical Fraud by P2P Lending in China

6.3.1 Case analysis: Ezubao

6.3.2 Analysis of fraud cases

6.4 Summary

 

CHAPTER 7:  VIRTUAL CURRENCIES, ICOs AND CENTRAL BANK DIGITAL

CURRENCIES IN CHINA

7.1 Virtual Currencies in China

7.1.1 The development of virtual currencies in China

7.1.2 The risks of virtual currencies and China's policies and laws

7.2 ICOs in China

  7.2.1 The chaos brought by ICOs in China

7.2.2 China's laws and policies prohibiting ICOs

7.2.3 STO and NFT in China

7.3 Central Bank Digital Currencies（Digital RMB）in China

7.4 Summary

 

CHAPTER 8:  NEW FINANCIAL REGULATORY MODE AND REGULATORY TECHNOLOGY IN CHINA

8.1        Background: Emergence of FinTech

8.2        Challenges: Characteristic and Risks of FinTech

                                    8.2.1    New characteristic of FinTech

                                    8.2.2    New risks of FinTech

                        8.3       Response: Two Dimensional Supervision with Chinese Characteristic

                                    8.3.1    Chinese style RegTech and technology driven supervision

                                    8.3.2    Regulatory sandbox and supervision pilot of FinTech in China

8.3.3    Characteristic of pilot work of financial science and technology innovation supervision

                        8.4       Cases: State of RegTech Development In China

8.5       Optimization: An Improvement Plan for China’s New Regulatory Model and RegTech

                                    8.5.1    Macro top-level design

                                    8.5.2    Micro operational mechanism

                                    8.5.3    Consumer protection mechanism

                                    8.5.4    Data protection specification

                        8.6       Conclusion

 

 

PART III

LAW AND PRACTICE OF CROWDFUNDING AND P2P LENDING IN JAPAN 

 

 

CHAPTER 9:  MARKETPLACE LENDING AND ITS DEVELOPMENT IN JAPAN

9.1 Types of Crowdfunding and Peer-to-Peer Lending Models

9.1.1 Donation-type crowdfunding

9.1.2 Purchase-type crowdfunding

9.1.3 Loan-type crowdfunding (P2P Lending)

9.1.4 Equity-type crowdfunding

 

9.2 Development of Crowdfunding and P2P Lending in Japan

9.2.1 General background

9.2.2 The rise of social lending (P2P Lending)

9.2.3 From social lending to purchase type crowdfunding

9.2.4 The beginning of equity-type crowdfunding

9.2.5 Different popularity of crowdfunding

9.2.6 COVID-19 and crowdfunding

 

CHAPTER 10: REGULATION OF CROWDFUNDING AND P2P LENDING IN JAPAN

10.1 Regulation for Donation-Type Crowdfunding

10.2 Regulation for Purchase-Type Crowdfunding

10.3 Regulation for Loan-Type Crowdfunding/P2P Lending

10.3.1 Two regulatory frameworks

10.3.2 Financial scandals and regulatory flaws

·           MINNANO CREDIT case

·           Maneo case

·           Self-regulation of industry group

10.3.3 Civil liability of platform

10.3.4 Other challenges

10.4 Regulation for Equity-Type Crowdfunding

10.4.1 Equity-type crowdfunding

10.4.2 The 2014 reform

10.4.3 Self-regulation

10.4.4 Further deregulation

10.5 Summary: Future of Crowdfunding Business and Regulation

 

CHAPTER 11: REGULATORY AND POLICY REFORMS IN JAPAN

11.1 Bitcoin and Virtual Currency

11.1.1 Virtual currency

11.1.2 Reform of Payment Services Act

·           Definition of virtual currencies

·           Regulation of virtual currencies

·           Scandals of virtual currency exchanges

·           Hard law or soft law?

11.2 Private Law Issues

11.2.1 Bankruptcy of virtual currency exchanges

11.2.2 Unauthorized access to exchange accounts

11.2.3 Duty of exchanges

11.2.4 Hard fork of virtual currencies

11.3 Initial Coin Offerings

11.3.1 ICO

11.3.2 ICO regulation in Japan

11.4 Central Bank Digital Currency (CBDC)

 

CHAPTER 12:   UNIQUE FEATURES OF CROWDFUNDING AND P2P LENDING

   REGULATION IN AUSTRALIA, CHINA AND JAPAN

 

BIBLIOGRAPHY

O autorze

Pelma Rajapakse

Dr Pelma Rajapakse is an adjunct Senior Lecturer in Business and Corporations Law in the  Department of Accounting Finance and Economics, Griffith University, Brisbane, Queensland. She holds a PhD in Law from Griffith University, a Master of Laws from Monash University (Victoria), a Master of Economics from the University of Waterloo, Canada, and a Bachelor of Commerce (Honours) from the University of Sri Jayawardenapura, Sri Lanka. She is an Attorney-at- law of the Supreme Court of Sri Lanka.

 Pelma is a co-author of the book entitled ‘Commercial Law Aspects of Mortgage Securtisation’ published by Palgrave Macmillan (London) in 2019.  Her research combines socio-legal, doctrinal analysis, and qualitative methods. Her research and writing have encompassed a range of topics such as fraud in fund management in Australia and overseas, legal aspects of residential mortgage securitisation, mortgage lending, crowd funding, pay-day lending, professional negligence of accountants and auditors, procedural fairness in immigration law, racial and gender discrimination in employment.  Her articles have  appeared in a number of prominent peer-reviewed law journals, including the Competition and Consumer Law Journal, Common Law World Review, Law and Financial Markets Review, Business Law Review, University of New South Wales Law Journal, Monash University Law Review, University of Queensland Law Journal, Journal of Law and Financial Management, University of Tasmania Law Review, and Global Jurist among others.

She has received several research grants, including a grant from the Australian Centre for Financial Studies, Melbourne, Victoria, Mortgage Housing Corporation, Ontario, Canada, Certified Practising Accountants (Singapore) and the Socio Legal Research Centre at Griffith Law School. She currently focuses on a research project on recently enacted new disclosure regime for Superannuation fund management in Australia. 

Hatsuru Morita 

Hatsuru Morita is a Professor at the School of Law, Tohoku University, Japan. He has also served as a research fellow at Financial Services Agency, Japan, and a visiting associate professor at the University of Chicago Law School. He holds an LL.B from the University of Tokyo, Japan.

His main research area is economic analysis of law and empirical legal studies. He has published several books in Japan, including the law of financial transactions, the law of payment systems, and empirical legal studies. He has also contributed to a book ‘Selection and Decision in Judicial Process around the World: Empirical Inquires’ published by Cambridge University Press (Cambridge) in 2019. He has also written many articles on corporate law, financial regulation, environmental law, tort law, criminal law, and Artificial Intelligence, among others. His articles have appeared in peer-reviewed international journals, such as International Review of Law and Economics, Asian Journal of Law and Society, and Zeitschrift für Japanisches Recht (Journal of Japanese Law).

He has received a number of research grants, including grants from the Ministry of Education, Culture, Sports, Science and Technology, Japan and (MEXT), and the Japan Society for Promotion of Science (JSPS).

Yinxu Huang  

Yinxu Huang is a Ph.D. in Law candidate of Renmin University of China, and a Research Fellow in Renmin Law and Technology Institute. He had also served as the Editor-in-chief of Renmin University Law Review from 2019 to 2021.He holds a Master of Law and a Bachelor of Law from Renmin University of China.

His research and writing focus on China's digital economy regulation, such as e-commerce, FinTech and RegTech, and antitrust in emerging markets. He has published papers in prestigious Chinese journals, including Journal of Renmin University of China, Oriental Law, Securities Law Review, China Finance, Shandong Social Sciences, Journal of Soochow University (Philosophy & Social Science Edition).

He has received several research grants, including grants from the Research Funds of Renmin University of China, the Development Research Centre of Shanghai and Beijing Law Society.