Introduction
The rapid growth of the stablecoin market — reaching a global capitalisation exceeding $150 billion by early 2024 — has forced regulators to confront a fundamental tension: how to protect consumers holding assets that function like deposits or e-money, while preserving the innovative potential that distributed ledger technology brings to payments and financial services. In the United Kingdom, this tension crystallises around the safeguarding framework that HM Treasury and the Financial Conduct Authority (FCA) have proposed for fiat-backed stablecoins under the phased regulatory regime announced from 2023 onwards. Safeguarding, in essence, requires issuers to hold customer funds in segregated, identifiable assets so that, upon insolvency, those funds can be returned to holders rather than absorbed into the general estate of the issuer (HM Treasury, 2023a).
This essay argues that the safeguarding model, as currently proposed for UK-regulated stablecoins, provides a meaningful but ultimately incomplete layer of consumer protection. Its principal deficiency lies not in the concept of asset segregation itself, but in three structural weaknesses: the absence of a statutory trust or deposit-guarantee equivalent that would grant holders priority in insolvency with certainty; the unresolved interaction between safeguarding requirements and the innovative reserve-management models that stablecoin issuers employ; and the regulatory gap created by applying an e-money-derived safeguarding paradigm to tokens whose economic function increasingly resembles that of bank deposits. At the same time, the risk of stifling innovation is real but overstated, because proportionate safeguarding requirements can be designed to accommodate technological variation without mandating a single business model. The deeper challenge is institutional: whether the UK’s regulatory architecture, split between HM Treasury, the FCA, the Bank of England and the Payment Systems Regulator, can deliver a coherent regime quickly enough to capture innovation within a protective framework rather than driving it offshore.
The Regulatory Architecture: From Consultation to Phased Implementation
Understanding whether safeguarding rules are “enough” requires first identifying precisely what has been proposed. The UK’s approach to stablecoin regulation has developed through a series of consultations and legislative steps. The Financial Services and Markets Act 2023 (FSMA 2023), s 69, granted HM Treasury the power to bring certain cryptoassets — including fiat-backed stablecoins used for payment — within the existing regulatory perimeter by amending the Financial Services and Markets Act 2000 (FSMA 2000) and the Payment Services Regulations 2017. HM Treasury’s consultation and response papers of 2023 confirmed a phased approach: Phase 1 addresses fiat-backed stablecoins issued in the UK and used as a means of payment, while Phase 2 will deal with broader cryptoasset activities (HM Treasury, 2023a; HM Treasury, 2023b).
Within Phase 1, safeguarding sits at the centre of the consumer-protection model. Drawing on the existing e-money safeguarding framework under the Electronic Money Regulations 2011 (EMRs 2011), reg 20–22, the proposal requires stablecoin issuers to ensure that funds received in exchange for stablecoins are safeguarded either by placing them in a segregated account with an authorised credit institution, or by investing them in secure, liquid, low-risk assets, with an insurance or guarantee arrangement covering any shortfall. The FCA’s Discussion Paper DP23/4 and subsequent consultations have explored how these requirements should be adapted, recognising that the e-money safeguarding model was not designed for tokens that circulate on public blockchains and may be held through complex custodial chains (FCA, 2023a).
The critical point is that safeguarding, under both the existing e-money framework and the proposed stablecoin regime, does not create a deposit-guarantee scheme. It does not grant holders the protection of the Financial Services Compensation Scheme (FSCS), which covers bank depositors up to £85,000 under the Depositor Protection provisions of FSMA 2000, Part 15A. Nor does it, without further legislative intervention, necessarily create a statutory trust over the safeguarded assets. This distinction is fundamental to evaluating the adequacy of the regime.
Safeguarding as a Consumer-Protection Mechanism: Strengths and Structural Limits
The protective logic of segregation
The core strength of safeguarding lies in asset segregation. If an issuer becomes insolvent, funds held in a properly segregated account should not form part of the issuer’s general estate and should therefore be available for return to stablecoin holders. This model has a longstanding pedigree in financial regulation: it underpins the Client Assets Sourcebook (CASS) rules for investment firms, the safeguarding requirements for payment institutions under the Payment Services Regulations 2017, reg 23, and the e-money regime (Ellinger, Lomnicka and Hare, 2011). The economic intuition is straightforward: by preventing commingling, safeguarding reduces the risk that consumers lose value when the issuer fails.
In the stablecoin context, this has direct practical significance. The collapse of TerraUSD in May 2022, an algorithmic stablecoin with no meaningful reserve backing, demonstrated what happens when stablecoin value is not supported by segregated, identifiable assets. While TerraUSD was not a fiat-backed token and would not have fallen within the proposed UK safeguarding regime, its failure — which wiped out approximately $40 billion of value — powerfully illustrated the consumer harm that arises when there is no reliable redemption right supported by adequate reserves (FSB, 2023). The proposed safeguarding rules directly target this risk for fiat-backed tokens by requiring issuers to maintain reserves that correspond to the aggregate value of outstanding stablecoins.
The insolvency gap: safeguarding without statutory trust
Nevertheless, the protective force of safeguarding depends critically on the legal characterisation of the safeguarded assets in insolvency. Under English law, whether stablecoin holders would have proprietary rights — enabling them to recover their funds ahead of unsecured creditors — turns on whether a trust or other proprietary arrangement has been created over the reserve assets. The e-money safeguarding regime illustrates the difficulty. In Re Ipagoo LLP [2022] EWCA Civ 302, the Court of Appeal held that the EMRs 2011, properly construed, did create a statutory trust over safeguarded funds in favour of e-money holders, meaning those holders had proprietary priority in insolvency. This was a significant clarification, but the reasoning depended on the specific wording of the EMRs 2011 and its interaction with the Payment Services Directive.
The question is whether the proposed stablecoin safeguarding rules will produce an equivalent outcome. If the regime simply replicates the EMRs 2011 framework, there is a reasonable basis — following Ipagoo — for expecting that a trust will arise. However, HM Treasury’s consultations have noted the complexity of applying trust concepts to tokens that may be held by multiple intermediaries and transferred on-chain without a centralised register of beneficial ownership (HM Treasury, 2023a). The FCA has likewise acknowledged that the distribution of stablecoins through decentralised channels complicates the identification of who, precisely, holds the beneficial interest in safeguarded funds at any given moment (FCA, 2023a). If the safeguarded assets cannot be clearly matched to identifiable holders, the trust analysis becomes strained, and the protective force of segregation weakens.
This is not an abstract concern. Gullifer and Payne (2020) have argued persuasively that the effectiveness of client asset protection in financial regulation depends not merely on the existence of a segregation requirement, but on the clarity of the proprietary rights that beneficiaries hold. Where those rights are uncertain — as they were for many years in the investment fund context before Lehman Brothers International (Europe) [2012] UKSC 6 — consumers face the risk of prolonged insolvency litigation and delayed recovery, even where assets have nominally been safeguarded. Applying this analysis to stablecoins, the safeguarding model is protective in principle but potentially unreliable in practice unless the legislation expressly creates a statutory trust and addresses the identification problem for on-chain token holders.
The absence of FSCS coverage
A further structural limit is the absence of deposit-guarantee protection. Bank deposits in the UK are protected up to £85,000 per eligible depositor per institution under the FSCS, funded by levies on deposit-takers. This provides a safety net that operates even where the bank’s assets are insufficient to repay depositors in full. Stablecoin holders, by contrast, are reliant entirely on the adequacy of the safeguarded reserves. If those reserves suffer a shortfall — for instance, because the issuer invested in assets that lost value, or because of fraud or operational failure — holders bear the loss directly.
HM Treasury has explicitly stated that FSCS protection will not extend to stablecoin holders under the Phase 1 regime, on the basis that stablecoins are not deposits and issuers are not banks (HM Treasury, 2023b). This position is legally coherent: extending FSCS coverage would require either characterising stablecoins as deposits — which would bring issuers within the banking authorisation regime — or creating a bespoke compensation scheme funded by stablecoin issuers. Either approach would have significant consequences for the competitive position of stablecoin issuers relative to banks and e-money institutions.
However, from a consumer-protection perspective, the absence of a guarantee mechanism is a material gap. As the Bank of England’s Financial Policy Committee has observed, if stablecoins achieve widespread use in retail payments — which is the scenario the UK regime is designed to facilitate — then a failure of a major issuer without adequate compensation arrangements could have systemic consequences for consumer confidence in digital payments (Bank of England, 2023). The safeguarding model assumes that reserves will always be sufficient, but history — from the collapse of Northern Rock to the failure of payment institutions such as Wirecard — suggests that reserve adequacy is not guaranteed, particularly in stress scenarios.
The Innovation Dimension: Does Safeguarding Constrain Technological and Business-Model Development?
Reserve composition and the tension with yield-generation
One of the central objections from the cryptoasset industry to strict safeguarding rules is that they constrain the ability of issuers to generate yield on reserves, thereby undermining the economic viability of stablecoin issuance and discouraging innovation. If issuers are required to hold reserves exclusively in cash at authorised credit institutions or in highly liquid, low-risk government securities, the return available on those reserves is limited. For issuers that do not charge transaction fees or that operate on thin margins, this may make the business model unviable — particularly if competing jurisdictions permit a broader range of reserve investments (Auer, Cornelli and Frost, 2023).
This concern has some force. The EU’s Markets in Crypto-Assets Regulation (MiCA), which entered full application in June 2024, imposes detailed reserve requirements on stablecoin issuers (termed “asset-referenced tokens” and “e-money tokens” under Arts 36 and 54 of Regulation (EU) 2023/1114), but permits a degree of investment of reserves in highly liquid financial instruments with minimal market risk, credit risk and concentration risk. The MiCA framework thus allows some yield generation within defined risk parameters. If the UK regime is materially more restrictive — for instance, by requiring 100 per cent cash-backing with no investment flexibility — there is a plausible risk that issuers will choose to operate under MiCA rather than seeking UK authorisation.
However, the innovation argument should not be overstated. The purpose of safeguarding is to ensure that reserves match the value of outstanding tokens, not to guarantee issuer profitability. As Awrey (2023) has argued in a broader analysis of money and payment systems, the social function of payment instruments is to provide certainty of value. If issuers invest reserves in riskier assets to generate yield, they introduce exactly the maturity and liquidity transformation risks that safeguarding is designed to eliminate. Permitting broad reserve investment would, in economic substance, turn stablecoin issuers into narrow banks — taking short-term liabilities (redeemable stablecoins) and investing in longer-term or less liquid assets — without subjecting them to prudential banking regulation. This is the regulatory arbitrage concern that the Bank of England has repeatedly identified (Bank of England, 2023).
The more sophisticated version of the innovation argument is not that issuers should be free to invest reserves in risky assets, but that the safeguarding framework should be technology-neutral and permit innovative custodial arrangements — such as smart-contract-based escrow, on-chain proof of reserves, and real-time auditing — that may provide equal or superior consumer protection compared to traditional segregated accounts. This is a compelling point. If the UK regime mandates specific custodial arrangements (for example, requiring reserves to be held at authorised credit institutions) without recognising functional equivalents, it risks privileging incumbents over innovators. The FCA has shown some awareness of this issue, noting in DP23/4 that the regime should be “technology-neutral” and “outcomes-based” (FCA, 2023a), but the detailed rules have not yet been finalised, and the practical application of technology neutrality in a safeguarding context remains to be tested.
Interoperability, programmability and the limits of the e-money analogy
A deeper innovation concern relates to the functional characteristics of stablecoins that distinguish them from traditional e-money. Stablecoins can be programmable: issuers or third parties can embed conditions into the tokens themselves, enabling automated payments, escrow arrangements, and integration with decentralised finance (DeFi) protocols. They can also operate across multiple blockchains and be held through non-custodial wallets, where the holder controls the private key directly without an intermediary.
The safeguarding model, derived from the e-money framework, assumes a relatively simple relationship: the issuer receives fiat currency, issues electronic value, and safeguards the corresponding funds. Redemption occurs through the issuer. This model maps imperfectly onto a stablecoin ecosystem where tokens may be transferred multiple times on secondary markets, held in smart contracts controlled by decentralised protocols, or fragmented across chains through bridging mechanisms. As Allen, Auer and Frost (2024) have observed, regulating stablecoins through existing payment-service frameworks may fail to capture the full range of risks and functionalities that arise in decentralised token ecosystems.
The risk of stifling innovation arises if safeguarding rules are interpreted to require issuers to track and identify every token holder in real time — a requirement that would be functionally incompatible with pseudonymous, permissionless blockchains. HM Treasury has indicated that issuers will bear responsibility for ensuring that holders can redeem stablecoins at par, but the mechanics of redemption in a decentralised environment remain unclear (HM Treasury, 2023b). If the regime effectively requires issuers to restrict stablecoin transfers to permissioned networks or to maintain centralised registries of holders, this would significantly limit the technological advantages of blockchain-based payments, including composability, interoperability and peer-to-peer transfer without intermediation.
Conversely, if issuers are permitted to issue tokens on permissionless blockchains without maintaining a reliable record of holders, the safeguarding regime’s effectiveness in insolvency is undermined, because the trust beneficiaries — the holders — cannot be identified. This is the genuine dilemma at the heart of the regulatory design, and it has no easy resolution within the existing safeguarding paradigm.
Comparative Perspectives: Lessons from MiCA and the United States
The EU and US approaches offer instructive comparisons. MiCA, as noted, imposes reserve requirements, custody rules and redemption rights for stablecoin issuers, but does so within a bespoke regulatory framework rather than by extending existing e-money rules. Notably, MiCA Art 37 requires issuers of significant asset-referenced tokens to hold reserves in custody with credit institutions and to ensure that reserve assets are operationally segregated. MiCA also imposes governance and disclosure requirements on reserve management, and grants holders a direct claim against the issuer for redemption at market value (Regulation (EU) 2023/1114, Art 39). This combination of prudential, conduct and insolvency protections is more comprehensive than safeguarding alone, though its practical effectiveness remains untested.
In the United States, the regulatory position remains fragmented. Multiple Congressional proposals — including the Clarity for Payment Stablecoins Act, which advanced through the House Financial Services Committee in 2023 — have sought to establish federal reserve requirements for stablecoin issuers, but none had been enacted at the time of writing. State-level regulation, particularly New York’s BitLicense framework administered by the New York Department of Financial Services (NYDFS), imposes reserve-backing and audit requirements on issuers operating in New York (NYDFS, 2022). However, the absence of a uniform federal framework has created regulatory uncertainty, and several commentators have argued that this uncertainty itself deters responsible innovation (Jackson and Schwarcz, 2023).
The comparative lesson for the UK is twofold. First, safeguarding rules alone — without complementary governance, disclosure, prudential and insolvency provisions — are unlikely to provide adequate consumer protection. MiCA’s more holistic approach, whatever its other shortcomings, recognises that reserve adequacy is necessary but not sufficient. Second, regulatory fragmentation and delay are themselves harmful to innovation, because firms cannot plan business models around uncertain rules. The UK’s phased approach, while sensible in principle, carries the risk that Phase 1 rules will be outdated or misaligned by the time Phase 2 is finalised, particularly given the speed at which stablecoin use cases are evolving.
The Regulatory Gap: Stablecoins as Functional Deposits
Perhaps the most fundamental criticism of the safeguarding model is that it addresses the wrong regulatory question. If stablecoins achieve the scale and ubiquity envisaged by proponents — replacing or supplementing bank-account-based payments for retail consumers — then they will function, from the consumer’s perspective, as money. Holders will treat stablecoins as stores of value and means of payment, not as investments or speculative instruments. In that scenario, the relevant comparator is not e-money but bank deposits, and the relevant regulatory question is not whether reserves are safeguarded but whether holders have the same level of protection as depositors.
This argument has been advanced by the Bank of England in its discussion paper on a potential digital pound, where it observed that any form of widely held digital money must meet standards equivalent to those applicable to commercial bank money, including capital adequacy, liquidity and loss-absorption (Bank of England, 2023). The Financial Stability Board’s high-level recommendations for global stablecoin arrangements similarly emphasise that regulatory standards should be proportionate to the risks posed and should provide equivalent protection to that available for comparable financial functions (FSB, 2023).
Applying this “same risk, same regulation” principle, safeguarding rules are insufficient if stablecoins perform a deposit-like function but are regulated under a payment-services framework. The gap is not merely the absence of FSCS coverage; it extends to the absence of prudential requirements such as capital adequacy, leverage ratios and stress testing that apply to banks under the Capital Requirements Regulation (as retained and amended in UK law) and the PRA’s rulebook. Stablecoin issuers, under the proposed regime, will face safeguarding obligations but not the comprehensive prudential supervision that applies to deposit-takers. If the functional equivalence argument is accepted, this represents a material gap in consumer protection — and, paradoxically, a competitive advantage for stablecoin issuers that could destabilise the banking sector by enabling regulatory arbitrage (Awrey, 2023).
The counterargument is that fiat-backed stablecoins, if properly safeguarded, do not engage in the maturity transformation that makes banking inherently fragile. A stablecoin issuer that holds 100 per cent of reserves in cash or short-dated government securities is, in economic terms, a narrow bank: it does not lend out deposited funds and therefore does not face the same liquidity risk as a fractional-reserve bank. On this view, requiring stablecoin issuers to meet full banking prudential standards would be disproportionate and would indeed stifle innovation by imposing costs that are not justified by the risk profile of the activity. This argument has considerable force, provided that the safeguarding regime genuinely prevents issuers from engaging in reserve transformation — a condition that depends on the strictness of the reserve composition rules and the effectiveness of supervisory enforcement.
Toward a More Robust Framework: Calibrating Protection and Innovation
If safeguarding alone is insufficient, but full banking regulation is disproportionate, the question becomes what additional protections are needed to close the gap without extinguishing the innovative potential of stablecoins. Several reforms merit consideration.
First, the legislation should expressly create a statutory trust over safeguarded assets in favour of stablecoin holders, building on the Ipagoo precedent but removing the residual uncertainty about whether the trust analysis extends to novel token structures. This would not stifle innovation; it would simply clarify the proprietary position and reduce litigation risk in insolvency. The Law Commission’s 2023 report on digital assets, which recommended that English law can accommodate digital assets as objects of personal property rights (Law Commission, 2023), provides a doctrinal foundation for recognising stablecoin holders’ proprietary interests in reserve assets.
Second, the regime should require regular, independent attestation of reserve adequacy — ideally in real time or near-real time, leveraging the transparency advantages of blockchain technology. Proof-of-reserves mechanisms, where an issuer cryptographically demonstrates that on-chain liabilities are matched by verified off-chain or on-chain assets, offer a technological complement to traditional audit that could enhance consumer confidence without imposing disproportionate compliance costs (Auer, Cornelli and Frost, 2023). The FCA should develop technical standards for acceptable proof-of-reserves methodologies, drawing on industry best practice while maintaining supervisory discretion to reject inadequate approaches.
Third, consideration should be given to a bespoke compensation mechanism for stablecoin holders, funded by levies on issuers, that provides a backstop analogous to the FSCS but calibrated to the risk profile of stablecoin issuance. This need not replicate the full FSCS infrastructure; it could operate as a prefunded loss-absorption buffer, held in trust, that supplements the safeguarded reserves. Such a mechanism would address the residual risk of reserve shortfalls without requiring stablecoin issuers to obtain banking authorisation.
Fourth, the regime must achieve genuine technology neutrality. The safeguarding rules should specify outcomes — asset segregation, identifiability of holders, redemption at par, adequacy of reserves — rather than mandating specific custodial technologies. If smart-contract escrow can deliver equivalent segregation to a traditional trust account, it should be permitted. If on-chain identity solutions can establish holder claims without requiring centralised registries, they should be recognised. The FCA’s supervisory approach should focus on the effectiveness of the arrangement in achieving the regulatory objective, not on conformity with pre-blockchain custodial models.
Assessing the Innovation Risk: Is Overregulation the Real Danger?
The concern that safeguarding rules will stifle innovation is frequently asserted but rarely tested rigorously. Innovation in the stablecoin market takes several forms: technological innovation in payment infrastructure (speed, cost, programmability); business-model innovation in financial services (DeFi integration, cross-border remittances); and competitive innovation in challenging incumbents’ market power in payments. Safeguarding rules primarily affect business-model innovation, because they constrain how issuers can deploy reserve assets. They have limited direct impact on technological or competitive innovation, provided that they do not mandate specific technology choices or restrict the environments in which stablecoins can operate.
Empirically, the jurisdictions that have imposed clearer regulatory frameworks — including the EU under MiCA and New York under the NYDFS BitLicense — have not experienced a collapse in stablecoin innovation. Major issuers such as Circle (issuer of USDC) have actively sought regulatory compliance and have cited regulatory clarity as a competitive advantage in attracting institutional users (Circle, 2023). Conversely, jurisdictions with no clear framework — or with hostile regulatory postures — have seen stablecoin activity migrate to less regulated environments, increasing rather than decreasing consumer risk.
The genuine innovation risk lies not in safeguarding requirements per se, but in regulatory uncertainty, delay and fragmentation. If the UK fails to finalise its Phase 1 rules promptly, or if the rules are so prescriptive that they cannot accommodate evolving technology, firms will establish themselves in the EU or other jurisdictions with clearer frameworks. The risk is one of execution, not of principle: well-designed safeguarding rules, appropriately calibrated, should facilitate rather than impede responsible innovation by establishing a credible regulatory environment that attracts compliant issuers and gives consumers confidence to adopt stablecoins for everyday payments.
Conclusion
Stablecoin safeguarding rules, as currently proposed in the UK, provide a necessary but insufficient layer of consumer protection. Their core strength — asset segregation — addresses the most immediate risk of issuer insolvency, but the regime’s effectiveness depends on the resolution of several structural weaknesses. The absence of an express statutory trust over safeguarded assets introduces proprietary uncertainty that could undermine consumer recovery in insolvency. The lack of FSCS-equivalent protection leaves holders exposed to reserve shortfalls that safeguarding alone cannot eliminate. And the application of an e-money-derived framework to tokens that circulate in decentralised environments creates unresolved tensions between the identification requirements inherent in trust-based protection and the pseudonymous, intermediary-free characteristics of blockchain-based payments.
At the same time, the argument that safeguarding rules will stifle innovation is, on balance, overstated. The principal threat to UK stablecoin innovation is not regulatory strictness but regulatory delay and prescriptiveness. A regime that specifies protective outcomes rather than mandating custodial technologies, that incorporates real-time reserve attestation alongside traditional audit, and that provides a calibrated compensation backstop can accommodate technological evolution while maintaining robust consumer protection. The safeguarding model is a reasonable starting point, but it must be supplemented by express statutory trust provisions, enhanced disclosure requirements, a bespoke loss-absorption mechanism and a genuinely technology-neutral supervisory approach. Without these additions, the UK risks a regulatory framework that is neither protective enough to justify consumer confidence nor flexible enough to attract the innovation it seeks to capture.
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