The American dispute over the legal status of cryptocurrencies, or how the SEC and CFTC understand cryptocurrencies

Bibliogr. s. 85-89

The American legal system is experiencing a competence dispute between the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) whose essence boils down to the question of which agency is competent in the supervision of the cryptocurrency market. The dispute is positive, as both agencies recognize their jurisdiction over this market, but the sources and scope of jurisdiction are different. The SEC derives its authority by recognizing cryptocurrencies as securities under the Securities Act of 1933, while the CFTC treats them as commodities under the Commodity Exchange Act of 1934. The jurisdiction of both bodies is not based on the literal wording of the cited legislation. Rather, it results from a functional interpretation of the terms "security" and "commodity". The analysis of the acts of application of the law issued by the SEC shows that the adopted classification largely violates the postulate of legal certainty, introducing many ambiguities for market participants. The aim of this article is to present the essence of the competence dispute between both agencies and the scope of their supervisory powers, which seem to be expanding with each subsequent case examined by them.