Understanding NFTs as commodities calls for a more nuanced analysis than what their “non-fungible” label might suggest at first glance.

By Yvette D. Valdez

The appropriate regulatory characterization of cryptocurrencies and digital assets for US legal purposes has spawned many pages of analysis and occupied many hours of industry, law firm, and regulatory consideration. Significant amounts of commentary, and later government and judicial attention, have been devoted to determining whether fungible cryptocurrencies and digital assets constitute securities for purposes of

A comprehensive guide to the new rule, which largely supersedes prior CFTC guidance that had informed market practice for over seven years.

By Yvette D. Valdez, Adam Bruce Fovent, and J. Ashley Weeks

On November 13, 2020, the US Commodity Futures Trading Commission’s (CFTC’s) final rule on the cross-border application of aspects of the swaps regulatory regime under the Commodity Exchange Act (CEA) (the Cross-Border Rule) became effective.

The Cross-Border Rule addresses (i) the cross-border application of the registration thresholds for swap dealers (SDs) and major swap participants (MSPs) and (ii) the categorization and cross-border application of certain regulatory requirements applicable to those entities and previously addressed in CFTC guidance. The Cross-Border Rule also addresses key definitions, such as the terms “US person” and “guarantee,” and replaces the previous “conduit affiliate” category with a new “significant risk subsidiary” concept. Additionally, the Cross-Border Rule formalizes a process and standard of review for the CFTC’s grant of comparability determinations regarding a foreign jurisdiction’s regulation of SDs/MSPs for substituted compliance purposes.