Following the recent approval by the United States Securities and Exchange Commission (SEC) of spot Bitcoin exchange-traded funds (ETFs), SEC Commissioner Mark Uyeda has expressed significant reservations regarding several aspects of the approval process.
While Uyeda voted in favor of the groundbreaking decision to approve these Bitcoin ETF applications, he voiced concerns about the underlying analytical approach adopted by the commission.
One of Uyeda’s primary concerns revolves around the potential long-term repercussions of the SEC’s reasoning in the approval order.
He worries that the flawed rationale and legal analysis employed in this case may serve as a precedent for future decisions, impacting the crypto industry for years to come.
Uyeda’s foremost objection centers on the SEC’s differentiation between Bitcoin and other commodities.
He believes that Bitcoin should be treated on par with other commodities and criticizes the commission’s use of the “significant size” test as a unique benchmark for spot Bitcoin ETP (exchange-traded product) applications.
According to Uyeda, spot Bitcoin ETPs should have been approved much earlier under this standard, and he questions why they continue to be treated differently than Bitcoin futures ETPs under the “significant market” test.
Although none of the Bitcoin ETF applicants met the SEC’s significant market test, the approval cited “other means” that satisfied the requirements.
Uyeda contends that the SEC’s decision to introduce a new standard after applicants spent years pursuing the significant market requirement was unjust.
He argues that the commission should have communicated its expectations more clearly to applicants, rather than forcing them to make multiple attempts with uncertain criteria.
Furthermore, Uyeda suspects that the SEC’s motivation for expediting the approval of spot Bitcoin ETFs was to gain a competitive advantage.
He points out a lack of analysis concerning how the cash-only creation and redemption feature might prevent fraudulent activities.
He emphasizes the importance of transparency in the analysis and reasoning behind approval orders.
In a somewhat contradictory stance, Uyeda ultimately supports the issuance of the approval order, despite his objections to the legal analysis presented in it.
He cites independent reasons for concluding that the applications met the approval standards outlined in the Exchange Act.
Nonetheless, his critique underscores the need for greater clarity, consistency, and fairness in the SEC’s approach to regulating cryptocurrency-related financial products.
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