Ask an Expert: Dr. Carsten Lösing
In this issue of our Ask an Expert series, we invited Dr. Carsten Lösing, Local Partner of White & Case Hamburg, Banking & Finance, to talk about FinTechs and financial regulation, from his point of view.
It is no secret that the German FinTech scenery is undergoing some changes due to the European âlegal reformationâ and its reflections on the German lawmakers. The new laws started circulating a lot of terms (open banking, API, XS2A, TPPs etc.) unfamiliar with us mortals along with a lot of new concepts one doesnât know how to interpret precisely. Will it be good? Will it be bad? Are the banks ready to push the green button on January 2018 for PSD2? Will AMLD4 limit the independence of the FinTech start-ups and make them dependable on the banks? Are the current FinTech services GDPR compliant? We all have guesses but honestly, nobody can tell for sure. They say it takes two lawyers in the same room to come up with three opinions however this time each lawyer in the room has at least four opinions about what is going to happen. Thatâs why we thought it is the right time to get an independent opinion from an expert who is positioned close enough to understand whatâs going on but far enough to observe from a safe distance, and we contacted Carsten to pick his brain.
Just a short introduction: after graduating from Bucerius Law School, Carsten worked as a consultant until he joined White & Case, where he specialised on financial institutions, project finance and regulatory law. I know that most people in the FinTech scene had an unpleasant experience with the market lawyers once or twice but I assure you that Carsten is not like these stereotypical big law firm lawyers you know; I was amazed by the calm, serious yet friendly harmony of the whole Banking & Finance team at White & Case Hamburg when I was working there during my master studies, which very much contradicts the âSuitsâ kind of experience I had during my legal practice back home, burning the midnight oil with artificial urgencies most of the time.
· Thank you for agreeing to this Carsten! I know that you are quite busy. Can you please briefly introduce yourself for our FinTech audience? Also, what I always find interesting is the start of a story â how did you find yourself wrapped up in banking and finance law?
Carsten: Sure. Elif, and many thanks for being able to speak to you on the various issues that are now affecting the financial services world. Actually, I was working in banking and finance already in my very early twenties during my international business studies. I was working for Börsen-Zeitung, Commerzbank and SocGen and followed this path after graduation when I advised banks as a business consultant at zeb/. It was at the time that I have really felt the significance and importance of regulation on the financial services industry. This was also one of the reasons why I then decided to get a deeper understanding of the law and decided to study law. After graduation at Bucerius and the following two state exams, it then just seemed a logical step to extend the legal expertise and combine it with my former bank/finance experience.
· I have realised that you are quite up-to-date with the FinTech market and the regulatory developments. What is your stand on FinTechs? We all know that banks think they will conquer the technology whereas FinTechs argue that they will make the banks redundant. What do you think about the future of FinTechs as a part of an independent industry player?
Carsten: The FinTech market is developing intensively and there are many interesting ideas, developments and FinTech companies out there. It is really exciting! It is a rapidly evolving area and there is a real digital transformation of the financial services industry. I think Bill Gates, back in 1995, said something along the line that banking is necessary, but banks are not. Certainly, there is also some exaggeration and hype around certain FinTechs, but banks should and do take this threat serious and react to these developments. On the other side there will be several FinTechs who will struggle to sufficiently scale up their size and grow sufficiently fast within the respective windows of opportunities â in particular those without the support of private banks or other networks. We will see further and increased collaboration between banks and FinTechs. However, FinTechs that have developed as a part of an independent industry player like PayPal, Alipay or others will play an increasingly significant role. The digital economy will support players with strength in areas like data mining and artificial intelligence.
· Letâs speak a bit about the elephant in the room: PSD2 and AMLD4. Whatâs your general opinion on these?
Carsten: PSD2 and AML4 are EU directives heavily affecting the financial services sector. In particular, PSD2 and the regulatory technical standards (RTS) on strong customer authentication are currently heavily discussed. PSD2 and what is called open banking will foster change and innovation. The difficulties in agreeing on a definite form of RTS and the corresponding delays are regarded by many FinTechs as the result of bank lobbying. However, the cornerstones are set in PSD2, and even if it will take some time to agree on standards, the path to âopen bankingâ is set. There are people developing use cases and new business models in anticipation of some of the regulatory changes.
· To be more specific, do you think the banks will be able to accelerate the innovation through open banking as expected by the lawmakers?
Carsten: For banks, real innovation might be a challenge because these are grown organisations with established systems, cultures, policy agendas and established ways of working. I have heard a lot of bankers considering open banking and the application programming interface as a threat to their current business model. It will depend on who and how many people are embracing and fostering real change. PSD2 can support this, but will not be the main driver to overcome resistance.
· In this scope, is open banking a real remedy for slow digitalisation progress or will it create chaos since it will probably take ages to settle on a system that is compatible for all the market players?
Carsten: Open banking is no real remedy for innovation. You have to start at the customer, not at the regulation, if you want to develop interesting innovations. There are delays with respect to the regulatory technical standards. However, I donât think it will take indefinitely for the standards to develop. And I guess, to a certain extent, itâs probably best to leave it open to the market to develop the best API standards. The issue has been around for a while now and certainly there is much lobbying by the various players and interest groups around the API standard. At some point in time, there will be a political decision on the regulatory standards.
· Do you think the lawmakers were able to make a thorough observation before âreleasing the beastâ? My two cents about the topic is that the Member States have such different market operability rules that it will be very hard to find common ground anyway (i.e., in some Member States like Croatia you have to ask for an official approval before cooperating with any FinTech). Also, technical infrastructure varies from Member State to Member State, let alone the differences between the banks.
Carsten: It is true that the current situation is quite different in the various Member States. I donât think we have know-it-all law makers, but if you look, for example, at the extensive research that EBA has exercised during the course of the hearing process in advance of the adoption of the RTS, my feeling is that a lot of concerns have been taken into account and that in the end the general line of the law makers to open banking will prevail. There are â for sure many difficulties around various issues, but discussions in the US and Asia as regards to open banking show that the EU is at the forefront on this issue and that, at the end, the overall result will foster innovation.
· What do you think about the New AML Law *(1)? Do you think it will create a partner bank dependency for some FinTechs? How is this supposed to help the âmarket disruptionâ?
Carsten: Based on AML4, the new German law changes the AML landscape quite significantly. The law for the implementation of the AMLD4 has come into effect on 26 June 2017. The core issue of the law is the introduction of a new so-called transparency register and accompanying extensive disclosure requirements associated therewith regarding the beneficial owners of the companies. The requirements are considered to be fulfilled if these companies are listed at an organised market, or if the required information results from certain public registers (especially the commercial register). Furthermore, it will allow for a risk-based approach. It will clarify some formerly unclear terminology and bring some new requirements for a large number of companies. The new law wonât create a partner bank dependency, but it will certainly require that the broad and complex and requirements are fulfilled. That can be done internally, if there is sufficient capacity and resources or otherwise by using banking know-how and processes or by co-operating with specialised service provider. Some legal requirements, however, will need to be complied with, even if external support is used.
· Letâs talk a bit about RegTech - do you find it realistic that lawyers will be replaced by AI soon? Does White & Case Hamburg have any RegTech cooperations or use any RegTech solutions?
Carsten: RegTech is a very interesting area for us. White & Case is developing RegTech in a very fast pace, because we think that everything that can be done by a computer will be done by a computer. However, we do not operate such systems on an office-by-office basis, for example, in Hamburg, but have a common set of tools and solutions across our global network. Our Chief Knowledge Officer Oz Benamram has presented four new tools at our Spring Town Hall by our global technology service. He and his team are systematically looking at tools in legal research, e-discovery and due diligence, drafting assistance, practice analytics, matter management, predictive and expert systems. Speech recognition does already and will play an even more important role in the future. Regarding document drafting, we now have systems in place that go far beyond the traditional spell and grammar check, but check for definitions, cross-references and the like. Lawyers wonât be replaced by artificial intelligence any time soon, but some old forms of lawyering work such as screening of mass documents for certain keywords will certainly be automated and replaced by RegTech systems.
· Do you think RegTech will help companies to automate the rather routine compliance tasks and reduce operational risks? In the end, the subject technology will need to stay up-to-date with current regulatory developments; wouldnât this turn the application into a human risk again?
Carsten: Yes, operational risks can and will help companies automating their compliance tasks. In the banking industry, for example the German Regulatory Authority BaFin has just recently published a circular that requires the use of certain risk management tools, including tools that track chats and messages on trading platforms. There are also many providers that now offer smart ways of screening payment transactions that might be suspicious in terms of money laundering or terrorist financing based on a dynamic set of input factors.
· I know we took a lot of your time so I would like to switch to a lighter topic for my last question â have you been introduced to some really interesting FinTech ideas so far? Was there one that particularly impressed you personally?
Carsten: Yes, I have seen a few of some very interesting ideas, some of which really seem to have the potential to be disruptive for many players in the market. I really like working with creative people â irrespective of their age. There is a lot of technological and scientific expertise in so many people and companies. This is really great fun to see those ideas developing. Personally, I was most impressed by certain real innovations in the payments area, some driven by technological change, but there also a few new ideas based on out-of-the-box thinking that use existing technology in new business or contractual structures.
If youâd like to reach Carsten for professional purposes or debate this interview, please feel free to contact him through â[email protected]â. In case you have any regulatory topics to discuss, alternatively, I could personally suggest you drop by the White & Case office in Hamburg, overlooking the beautiful Binnenalster for quick cup of coffee. Carsten is always very helpful, and they have a very good coffee machine in the office (best office coffee Iâve had so far).
*(1) Gesetz zur Umsetzung der Vierten EU-GeldwĂ€scherichtlinie, zur AusfĂŒhrung der EU-Geldtransferverordnung und zur Neuorganisation der Zentralstelle fĂŒr Finanztransaktionsuntersuchungen (adopted from the draft called "Referentenentwurf eines Gesetzes zur Umsetzung der Vierten EU-GeldwĂ€scherichtlinie, zur AusfĂŒhrung der EU-Geldtransferverordnung und zur Neuorganisation der Zentralstelle fĂŒr Finanztransaktionsuntersuchungen") http://www.bundesfinanzministerium.de/Content/DE/Downloads/Gesetze/2017-06-24-G-z-Umsetzung-Vierte-Geldwaescherichtlinie.pdf?__blob=publicationFile&v=8]