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As FinTech promises to increase competition for both banks and investment firms, we consider the market failures that emerge from its existence, particularly as they relate to issues of financial stability and investor protection. This chapter discusses the wave of technology-enabled disintermediation of financial services, asking how regulation should cope with the risks associated with disintermediating finance.

While regulation of financial intermediaries has been embraced because the industry is particularly prone to market failures, disintermediation has the potential to make current frameworks obsolete. The law & economics problem is twofold: 1) potential market failures, and 2) the issue of enforcement. This chapter discusses the foundations of financial intermediation and the traditional regulatory approaches to both banks and other providers of financial services. Our analysis establishes a distinction between FinTechs working outside and inside the blockchain. For the former, the crucial regulatory trade-off is between efficiency gains from innovation and regulatory arbitrage. For the latter, our analysis suggests that regulating the convertibility of cryptocurrencies into fiat money is a promising strategy not only to safeguard financial stability, but also to attract financial services to the regulatory perimeter, whenever it is efficient to do so.

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Forthcoming as a chapter in The Routledge Handbook of Financial Technology and Law edited by Iris Chiu and Gudula Deipenbrock

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