CFTC's 'Actual Delivery' Test For Digital Assets Misses Mark

Law360 (May 7, 2020, 6:43 PM EDT) -- After years in the making, the Commodity Futures Trading Commission has issued its final interpretative guidance regarding the term "actual delivery" set forth in Commodity Exchange Act's retail commodity provision.[1]

However, while the CFTC designated the guidance as final, we argue that the guidance should not be regarded as final, as the CFTC — while making large strides in addressing the concept of actual delivery in the context of virtual currencies — has missed the mark. In fact, the CFTC seemingly hit the mark in discussing the actual delivery exception framework in the final guidance, but then shot wide when articulating the...

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