Metaverse. Economic entropy and market regulation processes

by C. Alessio Mauro* and Valerio Lemma**

ABSTRACT: The essay investigates the metaverse considering its features and the need for a protection that goes beyond the safeguards set forth by the Consumer Code, concluding that a new model of market regulation should protect the rights and interests related to savings and investments.

SUMMARY: 1. Metaverse and protection needs – 2. Continued: the new economic models of regulation – 3. Distance financial services in the Consumer Code: outline – 4. Continued: metaverse and application problems of the existing legislation also in the light of the evidence emerging in the international literature – 5. Metaverse and need of protection: the controls over cryptoassets and digital financial instruments – 6. Metaverse and distributed ledger technology: the rules set forth by EU DLT Pilot Regime – 7. Conclusive remarks.

1. A new environment where agreements entailing the circulation of wealth can be stipulated for both consumption and savings purposes emerges, and this is witnessed by all information sources. From such evidence stems a need to verify whether the current protection rules for the provision of financial services at a distance adequately respond to specific needs of protection or whether traditional needs are simply manifesting in new forms[1].

At present, the notion of metaverse is descriptive of the distinct words “meta” and “verso”, an abbreviation of the latin “universus”, coexisting as a single meaning. Indeed, the idiom mèta, deriving from the Greek prefix μετά, is used to designate a phenomenon of “transfer”, «with, after, beyond», which, in modern language, has kept the function of a prefix within the most structured words[2]. As a consequence, at the semiotic level, the reference to the concept of “meta” takes on a transversal meaning in the declinations of transformation, passage, crossing (“beyond something”), also in the scientific sphere (chemistry, medicine, biology and philosophy, etc.).

On a more general level, the metaverse is part of the constant change in human behaviour and daily habits compared to the original archetypes, in a context that has now changed in the light of digital innovation and due to the evolution of information systems. About twenty years having passed since the “premonistic” landing of second life in the sphere of the three-dimensional multi-user virtual environment – better known as the acronym MUVE, coined on 23 June 2003 by US physicist Philip Rosedale’s company Linden Lab – such phenomenon continues to receive current attention.

Defined by Mark Zuckerberg as an ‘immersive version of the internet, where instead of looking at something through the screen we will be in it, as if we were experiencing it in person’, the stock market crash of Meta, formerly Facebook, does not seem to have halted the debate on the subject[3]. Indeed, in echoing the contents of Neal Stephenson’s 1992 novel Snow Crash, the space virtual metaverse seems to participate to the new challenges of the market, whose effects do not, however, appear to be ponderable in terms of their eventual development.

On the international front, it is indeed current news that Dubai’s Virtual Assets Regulatory Authority has landed in the metaverse, as the first regulator to enter this field. Moreover, the Principality of Monaco is preparing to give life to the first Virtual City, intending to create “a community and a parallel economy where every economic sector is connected to the platform: Retail, Real Estate, Tourism, Events, Yachting, Art, Sport, and much more[4]“^. Evocative of the advent of the Internet in society, the metaverse also postulates the need to “revisit” certain regulatory models that are no longer adequate to discipline future market scenarios in subiecta materia.

The need to decode innovative regulatory instruments[5], as mentioned, implies a comparison with recent reform instances spreading about digital financial services[6]. In this context, it is necessary, first and foremost, to transpose the principles of the ethics of finance and solidarity within the new virtual systems[7], namely bearing in mind the instances by the premonistical doctrine in relation to the risk of adopting solutions that do not conform to the principles contemplated in the Fundamental Charter[8] and the need to adapt the regulatory system to the primary values of the economy[9]. The sacredness of humanity is therefore confirmed in the context of virtual models, echoing the vision of man of Friedrich Nietzsche in Zarathustra[10].

2. Not infrequently an innovative paradigm of the space and place of the economy emerges[11] exploring the legal literature on economic and financial matters[12]. In such environment the complex presence of “general” issues gives back to the law the task of regulating market developing phenomena.

In the context outlined above, the interpreter is required to be able to emancipate from traditional dogmatics, through a constant change in the systems of exchange of goods and services also confronted with the traditional spheres of circulation. In this regard, it is worth considering that the idea of natural law subject to changes in time and space can be traced back to Aristotle’s Nicomachean Ethics. Even in the later evolutions of the doctrines of legal rationalism, the idea of natural law has kept the notion of a unique law for all ages.

In this context, it should also be recalled that the evolution of legal culture has developed different theoretical reconstructions in the reference geopolitical declinations. The same inputs given by the legislator to the regulation of banking and financial matters has, from the outset, ensured the adjustment of the regulatory path with respect to phenomena naturally developing in markets. Also, in the exegesis of Montesquieu the law was, more generally, brought back into the paradigm created by “human reason” to regulate and “govern all the peoples of the earth; and the political and civil laws of each nation shall be but the particular cases to which it applies”[13].

At present, a constant deflagration of the “spaces” of the free market emerges, with the economic-financial community tending to favour the use of innovative safeguards, compared to the past, and the authorities intending to regulate their use. The need to ensure uniform and regulated models of the various branches of the economy, nonetheless, stems from the choice of the EU legislator to channel the new forms of public intervention within the framework of a system suitable for safeguarding social values as essential pillars of common action. The shared conduct of the Union, therefore, ensures to the evolution of national, EU and even international economic systems the “revolution of the cultural consciousness” foreseen by Hans Kelsen in Das problem der Souveränität as the ideal affirmation of the civitas maxima, in the sense of the “infinite task that must be place to any political effort”[14].

The idea of guaranteeing at a generalised level an adequate system of market regulation in the emerging sectors of the economy is, moreover, confirmed by the Governor of the Bank of Italy also in relation to the new digital payment instruments and the respective regulation processes, due to the need to “introduce in the European Union the pilot scheme for market infrastructures based on DLT (Pilot Regime for Market Infrastructures based on DLT Regulation). These technologies are used for issuing and exchanging cryptocurrencies”[15]. On the other hand, the entry into force of Decree-Law No. 2517 of 17 March 2023[16] on the issue of circulation of certain financial instruments in digital form and simplification of FinTech experimentation are matters of few days ago[17].

Furthermore, on 18 December 2022, the provisional agreement was reached between the Parliament and the Council of the European Union on the reform of the European Union Emissions Trading System, better known by its acronym ETS, and on the establishment of a new Special Climate Change Fund[18]. On the sidelines of this intervention – aimed at ensuring that ETS (Emission Trading System) can be adequately geared towards achieving the goal of zero emissions in 2050[19] – the so-called carbon leakage risk[20] had to be faced.Even in this context, has emerged a need for uniform regulation of the sector concerned so as to offset possible market-distorting phenomena. Indeed the CBAM, carbon border adjustment mechanism, was intended to preserve the industry of the Member States in the decarbonisation phase from areas not subject to the same, and strict, climate health rules[21].

Thus, a willingness arises to profoundly rethink the canonical forms of codification and to introduce appropriate forms of regulation while taking into account the inadequacy of existing mechanisms with respect to the innovative features in the markets and bearing in mind the modest ability of traditional rules to regulate the spaces reserved to the modern economic era.

3. Ever since the earliest forms of regulation of digital financial services, the recurring deployment of innovative exchange systems has attracted the attention of the legislator. The latter, in fact, has introduced increasingly sophisticated regulatory safeguards compared to the traditional forms already known to the legal system for the relations established on the simultaneous presence of the parties. On the one hand, there has always been a desire to guarantee the development of private and public economic initiative for the purposes of Articles 41 et seq. in connection with Article 117 of the Constitution, in conjunction with Articles 26 (internal market), 49-55 (right of establishment) and 56-62 (services) of the Treaty on the Functioning of the European Union (TFEU); on the other hand, there is a desire to ensure adequate safeguards in favour of end users.

As of today, the words of Ursula von der Leyen confirm that the metaverse calls for comprehensive regulation, as she expresses herself in terms of “world leadership in regulating the digital space to make it more secure and open. We will continue to examine new digital opportunities and trends, such as the metaverse”[22]. Similar worries have been expressed by Consob Chairman Paolo Savona in terms of appropriate regulation of the metaverse[23].

Law No. 127, the so-called European Delegation Law 2021, published in the Official Gazette last August 26^th, contains the Delegation to the Government for the transposition and implementation of certain directives and regulatory acts of the European Union[24]. In particular, are worth mentioning the so-called Omnibus Directive, i.e., Directive 2019/2161/EU, which came into force on 7 May 2020 and is aimed at modernizing the Union’s provisions in the field of consumers, amending Directive 93/13 EEC on unfair terms, Directive 98/6/EC on the indication of the prices of products offered to consumers, Directive 2005/29/EC on unfair commercial practices and Directive 2011/83/EU on consumer rights.

This regulatory ferment is indeed part of the need to regulate the digital market space, in continuation of the process already started with the First Directive No. 2002/65/EC on distance marketing of consumer financial services.

There is a general need to decode a uniform regulatory apparatus within the framework of the European Union, having already implemented Directive No. 2002/65/EC through Legislative Decree No. 190 of 19 August 2005, as well as in 2007 the same legislator gave impetus to the transposition of the rules contained therein into the Consumer Code (which was followed by the repeal of Legislative Decree No. 190/2005).

What needs to be considered, therefore, is the content of such special framework, in order to verify its compliance with the need for protection indicated at the beginning of this work.

Hence, it should be considered that the Consumer Code, i.e. Legislative Decree No. 206 of 6 September 2005, already regulates the distance marketing of financial services to consumers.  Pursuant to Article 67-bis of the Consumer Code the scope of application of such discipline is delimited, ensuring that the law is also applicable in the event that an intermediary participates in the transaction. Moreover, the adoption of Law No. 238 of 23 December 2021 on “Provisions for the fulfilment of the obligations arising from Italy’s membership of the European Union – European Law 2019- 2020” is recent. Such legislation, inter alia, regulates the reform of the Consolidated Law on Finance on abuse of market[25].

As will be seen, this is a regulatory compendium that focuses on distance, but does not contemplate the ‘immersiveness’ distinctive of the metaverse[26], hence the need to deal with its content, since, pursuant to the aforementioned provision of the Consumer Code (Art. 67-bis), two distinct types of negotiation are relevant: (a) one presupposing an upstream agreement already entered into between the consumer and the trader (and which has been followed by further implementation activities); (b) another one in which such initial agreement does not occur. In the first case, the protection offered by the legislator consists in having ensured full application of the safeguards enshrined in the law with regard to the initial agreement; in the second case, with regard to the distance marketing of financial services, the regulatory choice of anticipating the safeguard and information obligations from the moment of the first negotiation transaction[27] pursuant to Article 67-quater et seq.

Turning, as far as is possible here, to the definitions contained in the Consumer Code, reference should be made to Article 67-ter, in the reference it makes to the broader concept of “techniques of distance communication” with “means of distance communication”. The legislation in question thus gives rise to a broad notion of financial services, inspired by the principle of the effectiveness of the relevant protection, by which is meant any “service of a banking nature, credit, payment, investment, insurance or individual retirement provision” [28].

Therefore, the intention of the legislator to ensure full regulatory coverage to the cases at issue is fully confirmed, by availing itself of non-rigid paradigms of regulatory technique to incorporate broader financial service entities, as it is set out in the fourteenth recital of the preamble to Directive 2002/65/EC[29]  is in line with the scope of consumer protection, aimed at encompassing every activity of a financial nature.

For the concept of investment, on the other hand, reference is made to Article 1(5) of the same Consolidated Law on Finance, also considering the amendments made pursuant to Legislative Decree No. 129 of 3 August 2017 in transposition of the Mifid II Directive[30]. Moreover, in addition to the financial services themselves, under Article 67-ter, banking, credit and payment services are also highlighted in the subsequent Article 67-quater et seq. as to the principles of information and transparency (Article 67-sexies).

In particular, on the level of correct consumer information, Article 67-quater is of relevance in confirming the broadest protection in the negotiation and pre-negotiation phases. In this regard, it must be pointed out that this requirement transposes into domestic law a transversal criterion, which can be framed, for the purposes of Article 153 of the Treaty establishing the European Community, at the ultra-state level of consumer protection[31]. The legislator has therefore, set up an information protection mechanism aimed at covering different areas of intervention, starting from the pre-negotiation phase of the relationship, and then covering the entire distance transaction[32].

Article 67-quinquies also deals with information relating to the supplier to ensure the need for a more correct identification of the persons providing remote services, as close interlocutors of the user of the final service. The need to identify, on a regulatory level, the person providing the service responds to the instance to decode certain rules that make it possible to act with the utmost transparency and within the scope of a sector that is also detailed on a subjective level (of the economic operator in the market). This regulatory choice, if nothing else, contributes to facilitating the activation of remedial tools in the event of conduct that conflicts with the regulatory purposes set forth in the Consumer Code.

Similarly, Article 67-sexies regulates the information relating to the financial service in its objective features, also regarding the direct and additional costs, including the taxation generally provided. Article 67-septies outlines a discipline specializing in taking into account the information pertaining to products and services provided at a distance, regulating the topical aspects of the contract in its dynamic aspects (duration, exercise of the right of withdrawal, etc.). The protection offered by the consumer legislature does not appear, however, to be particularly detailed about the phase after the conclusion of the contract; moreover, pursuant to the third paragraph of Article 67-quater, the principle (already enshrined in the Rome Convention of 19 June 1980) of the prevalence of the law of the country in which the consumer has his habitual residence[33] is introduced.

Ultimately, this is a set of protections that are anchored to the dynamics of the distance communication techniques in use at the time of the Consumer Code, hence the need for further reflection that could lead to a preference for a timely interventionist hypothesis, capable of adapting the existing rules or introducing new ones in order to consider the exercise of financial activities within the metaverse.

4. As illustrated in the foreword, the metaverse is currently characterized by the coexistence of two structural elements, which are primordial and essential with respect to the relevant legal phenomenon analyzed. On the one hand, the so-called network infrastructural system with a strong interconnection (Internet 3.0, in the possibility of 3D navigation) comes to play; on the other hand, the legal system knows the so-called “viewer”, allowing the latter access to the multimedia space[34].

Still inadequately examined in terms of its legal nature, the metaverse has been drawn into multiple legal categories. As a prototype that intends to develop that paradigm already known by the term social platforms[35], the very subject of the metaverse poses different problems, especially about the applicable discipline, as well as taking into account the fundamental rights to be protected. The most evolved doctrine has, in particular, has moved from a transversal vision of the phenomenon, emphasising the rights related to the image and reputation of the person, as well as the need to guarantee security on the network and, therefore, cybersecurity, the protection of minors and the user and, lastly, that of the consumer[36].

The aforementioned reconstruction has, consequently, postulated the need to investigate the relative ways of resolving potential metaverse disputes[37] in adapting the relative model to the concrete needs to be pursued.

Faced with the specificities of the metaverse, the provisions dictated by the Consumer Code do not indeed appear appropriate, due to the compelling need to regulate cases of exchange in the digital sphere falling within the new “spaces of the economy” which are revolutionary and in certain respects irreconcilable to the “material” exercise of public powers (Law No. 241 of 1990) and the private sector safeguards found in the markets.

Indeed, the Consumer Code offers remedies that are – both objectively and subjectively – tailored based of the rationes underlying Legislative Decree No. 206 of 2005 while in the metaverse arises a need to decode a taxonomic system for state-of-the-art circulation patterns. These elements seem to be characterised by a high degree of discontinuity from the regulatory model of the Consumer Code and, therefore, from the concrete case originally regulated.

The complexity of the phenomenon would require, on the one hand, to define the content of this multimedia space, if necessary by resorting to predefined typical legislative parameters, capable to delimit its use. On the other hand, with the help of appropriate regulatory instruments, it would be possible to direct the exchange of goods and services in the virtual context, monitoring the service providers operating there, and guaranteeing their reliability by devising new authorization and conduct instruments.

In the envisaged context, therefore, a more articulated market model than the provisions of the Consumer Code and of the other ordinary regulatory safeguards could be prepared, in the diversification of the operational prerequisites that enable the exchange of goods and services in the new places of the digital economy.

Rather, the new frontiers of the metaverse seem to overturn the concept of the “weak contracting party” – restricted by the Consumer Code to predefined legal categories – in the face of a more generalised need to operate with certain rules in all sectors of the economic system and to protect all market players. The very modernisation of the systems of exchange and circulation of goods and services imposes the overall review of market regulation techniques, considering the fundamental principles already echoed by the doctrine[38].

In the face of the many challenges ahead, however, several key issues still appear unresolved, including the mode of payment in virtual spaces[39], as well as recourse to innovative instruments for collecting savings, as in the case of crowdfunding. Moreover, following the development of the Fintech phenomenon, a fervent debate has sparked on the legal and even regulatory issues underlying the reality of digital finance and its instruments[40] [41]. Among these, in particular, although in embryonal phase, few projects are being further explored, also relating to the use of cryptocurrencies and the crowdfunding in the public sector[42]. Already in the past, as is well known, the issue emerged in relation to Libra, Facebook’s cryptocurrency, which dealt with the rumors on the abandonment of crypto-novi project[43].

Such brief recalls therefore impose a proper rethinking of the future of the metaverse, also in the light of the payment instruments and circulation of the related services offered, in the face of a legal and regulatory framework that appears to be lacking in detail.

Additionally, with the anti-money laundering legislation, i.e. Legislative Decree No. 231 of 21 November 2007, the domestic legislator offered instruments to protect the values involved, introducing specific control systems on the use, storage and exchange of virtual currencies[44].

The international literature has raised the issue with regard to security in the virtual sphere, in the emerging need for guarantees posed by the metaverse, also in order to avert undesirable episodes of discrimination, hate crimes and identity theft, etc.[45]. Hence the need to decode the concept of personal space in the metaverse on a private and public level, in order to better identify, and regulate, the subjects that may be involved in reprehensible and harmful conducts in the individual sphere of others.

Furthermore, the need to combat cyberbullying emerges, since the rules envisaged to protect the offended party are difficult to apply to the metaverse, the former presupposing the material nature of the offending conduct. Rather, there is a need to regulate phenomena constituting “virtual” offences, which are not, however, devoid of the social and moral value of reference, which is the protection of the rules laid down in common law legislation[46].

Even the innovative version of the identity of the person in the metaverse could, consequently, lead to an obscuring of the relevant data, thus preventing its identification. Therefore, the structuring of the metaverse as a “centralized” platform similar to an artificial legal entity (or a company) has been envisaged. Hence, the figure of a single administrator of the virtual market has been also envisaged, in order to allow the uniform collection and management of the relevant data and in which, therefore, the operators (rectius, users) would become trustees of the data.
Even then, the question arose as to the most appropriate way of tracking personal data, biometric, ocular, and brain waves. The latter are aspects also pertaining to human life, in its external expression and not only virtually. Rather, a need arises to decode an overall mechanism of circulation, monitoring and control, in which there is the avatar and not the human being acting, and thus the need to localize the relevant jurisdiction emerges.

The international doctrine has, therefore, pointed out that Seoul has already outlined plans to enter the metaverse by 2023, with the aim of establishing a communication in the ecosystem for services in tourism, education and civil services. In detail, the Seoul Metropolitan Government has invested 3.9 billion won in the project as part of its Seoul Vision in Plan 2030 to strengthen the global competitiveness of the town.

South Korean banks have begun to direct their attention to future developments in finance in the metaverse, with a potential broadening of their customer base through non-material channels[47],  thus facilitating access to banking services. And, above all, comes into play the reduction of related system costs characterizing offline services[48].

Also at the international level the potential unsuitability of the future regulatory scenario has been highlighted, by echoing the well-known 1969 dispute brought by the US government against the technology giant International Machines Corporation (IBM), in connection with the mainframe computer. In fact, 13 years of litigation were not enough to put an end to the dispute, in the wake of a technological model that was already well established in the markets.

The symbolic impact of the Federal Trade Commission’s (FTC) injunction – in July 2022 – against Meta is therefore due to such overall skepticism. Such injunction was aimed to avert the acquisition of a virtual reality (VR) company called Within Unlimited, a VR50 app developer[49].

Nonetheless, it has been advocated a need to ensure an interdisciplinary approach to the new phenomenon of the metaverse, capable of transferring to the various sectors of the economy the elements of thermodynamics (of the theory of complexity and other fields of interest), thus restoring hybrid structures to markets in both private and public law[50]. 

Furthermore, reference is made to a recent essay inducing to redesign, from a virtuous perspective, the issue of regulation in the field of digital technologies. Such perspective overcomes that vision of the economy excessively anchored to traditional models and little inclined to develop the innovations and potential of new forms of exchange in the markets. In fact, there is sometimes a tendency to portray the phenomena of digital innovation as a mere vector of illegality, instead of envisaging solutions and regulatory control instruments capable of enabling technological and digital development and innovation of virtuous and efficient economic systems, given their potential to generate wealth and well-being.

5. As mentioned in the previous paragraphs, the development of a new virtual environment affects the way in which the demand for and supply of capital is formulated, as well as the forms in which the agreements related to the relevant exchanges are concluded. In light of the foregoing, the limits of the remedies implemented to ensure the efficiency and the equilibrium of remote trading are noted, as there are specific needs of protection that are not covered by the applicable regulatory framework. [51]

In addition, the digitization of finance has placed the movement of capital out of the economy of a bank or another kind of intermediary that plays as the counterparty of savers and borrowers, as there are chains of transactions that occurs in the open market (in the context of the shadow banking intermediation process). Moreover, such transactions take place on a global dimension and under very high frequencies, out of the scope of prudential supervision. This requires the public intervention to seek for regulatory solutions aimed at maximizing the outcome of the aforesaid chains while protecting the weaker parties (consumers, savers, debtors, …).[52]

Focusing on the perspective of the metaverse, it is worth considering both the current application of cryptography and distributed ledger technology to substitute money and the perspective of applying the cryptography’s innovation to the financial intermediation activities[53]. Thus, it is possible to verify if new needs for protection come into consideration and then the presence of a concrete and efficient opportunity for a public intervention aimed at ensuring the maximization of social welfare within the limits of the individual rights[54].

At this stage of the research, therefore, it seems useful to focus on the implications of the metaverse, considered as a form of a new emerging virtual environment in which traders access via telematics in order to experience new forms of sociability, provided that the relevant exchanges are carried out there and usually exhaust their validity in the metaverse itself. In this respect, it is useful to note that the need for protection and stability of the relevant legal relationships is crucial for the safe construction of a virtual environment that is suitable for carrying out exchanges, even if they occur in alternative modes to those experienced to date[55]. Hence, a first reason for extending the scope of supervision.

This perspective raises specific questions, relating – inter alia – to public interference on the autonomy of private individuals in such an area. Therefore, it is necessary to identify the needs mentioned above and the authorities responsible for satisfying them (also through the identification of new criteria for linking accountability and supervision).

Given the possibility that the exchanges take place in a metaverse that appears immersive and comfortable to users (whereby places and people appear realistic), it seems possible to assume that the relationship between the company and the customer is declined in such a way as to deeply influence the formation of the negotiating will. This assumption is confirmed by the evident disproportion in the distribution of contractual powers between the counterparty professionally incardinated in the metaverse and its private clients.

Therefore, it seems possible to believe that the construction of an immersive environment (such as the metaverse prefigures) can accommodate and foster that form of movementism that has placed faith in online environments and cryptocurrencies. Hence, the operations in an immersive metaverse might be different from the online operations taken into consideration so far by the legislator to define the rules on off-branch offers, the competent court, and the applicable jurisdiction[56].

It is no coincidence that the regulatory perspective taken by the European Commission in its digital finance package refers to the hard law paradigm to submit its legislative proposals on crypto assets and digital resilience, aiming at intervention to ensure consumer protection and financial stability[57].

6. The above puts the researcher in a condition that could easily lead to a preference for an early interventionist hypothesis, anchored to the satisfaction of the need for protection referring both to stability (of markets and intermediaries) and individual rights (of investors and consumers using the facilities of the metaverse)[58].

This would also easily overcome the criticism that the option for hard law to regulate innovation may be limiting for the development of the market. Given the relevance of interests, it is necessary for supervision to avoid market failures and, at the same time, trade distortions due to asymmetries in the allocation of bargaining power (by protecting individual rights and promoting operational paradigms capable of supporting the digital transformation of finance while containing ICT risks).[59]

All the above leads us to consider the Italian approach to new technologies, which is evident in the national implementation of both Regulation (EU) 2022/858 on a pilot regime for market infrastructures based on distributed ledger technology and the Regulation (EU) 2020/1503 on European crowdfunding service providers for business. Indeed, both the law decree no. 25/2023 and the legislative decree no. 30/2023 redefine the Italian legal system to ensure the efficient application of the aforementioned European regulations by means of disciplinary options that highlight the relationship between hard law and the technological innovations leading to the digitalization of financial instruments.

As investors and issuers move towards market infrastructures that, by using a distributed ledger, can improve trading efficiency and introduce new pre- and post-trading opportunities, the regulatory intervention redefines the relationship between technologies or programming, on the one hand, and the need for protection (of savers) and resilience (of the system) that these innovations imply[60]. On closer inspection, the Italian rules suggests that technology is merely an instrumental attribute of a new (generally) accepted way of fulfilling obligations by means of a device and infrastructure that establishes a decentralised database maintained by distributed computer networks[61]. And this goes beyond the introduction of a ‘new status’ for DLT market infrastructures, proposed as a specific objective by the European Commission.

It is evident a regulatory action aimed at supporting the digital development of what falls under the definition of financial instruments under current EU financial services legislation. Moreover, the importance of the development of trading venues that operate through the application of DLT and, thus, the emergence of infrastructural alternatives to those experienced by markets during the 20th century becomes increasingly evident.

Hence, the opportunity to consider that the Italian regulator has fully understood the relationship of substitutability and competitiveness that exists between the two paradigms of operation: on the one hand, the banks subject to the CRD and CRR together with the traditional venues covered by MiFID and, on the other hand, the crowdfunding platforms under Regulation (EU) 1503/2020 and the multilateral settlement and trading systems governed by the Regulation (EU) 858/2022.

Indeed, it appears evident that the competent Italian authorities have been engaged in a necessary and urgent process of regulatory adjustment aimed at ensuring the safeguarding of general principles that, in a context of equal negotiation and fair distribution of transactional costs, protect savings, just as the Constitution imposes on the Republic of Italy.

7. As anticipated in the preceding paragraphs, the need to ensure the creation of a regulatory system capable of ensuring the processes of change in the markets, under the imprint of evolution, growth and development, comes to the fore. Therefore, an innovative legal-economic era is emerging, in which the concept of entropy in thermodynamics – from the ancient Greek ἐν (en), “inside”, and τροπή (tropé), “transformation” – answers to the complexity of digital systems. This is the constant work of adaptation (rectius, transformation) of regulation to new market phenomena.

The order of the markets, therefore, converges to the goals of a regulation that is ductile, but at the same time capable of coping with the processes of dynamic interaction between public and private, in the new models of the modern economy.  The application of the categories of thermodynamics opens up in a theoretical order inspired by the principles of free energy. As such, in this field the regulation is graduated in the context of a production in the name of virtuosity, growth and development[62].

In parallel to the above-mentioned reconstructive theories, certain schools of thought have sought to discipline the metaverse according to the traditional paradigms of the banking and financial sector. In particular, there has been talk of “metabank” as future scenarios for the collection of so-called metacoins, in the natural evolutionary phenomena of cryptoactivity[63].

Moreover, recent contributions tend to frame the developments of digital finance on platforms within a progressive adaptation process, where the issue of the metaverse also appears to be heading. In fact, the need to identify uniform solutions in all the Gulf Cooperation Council countries, in the context of an overall transformation of the banking and financial system (also on the sideline of energy transition and diversification and environmental sustainability) has been put forward[64].

It is necessary, in conclusion, to rethink regulation in the name of market stability, providing appropriate safeguards in the interest of the market itself, as objectively considered. Furthermore, it is necessary to contribute to the growth of the economic system in the preservation of adequate control and monitoring models by fostering a full interaction between public activity and private operators. The concept of sovereignty and its articulations – in which the sphere of competence to regulate markets is also expressed – are constantly open to the higher principle of a universal order that looks to the common good, in which the principles of ethics of finance and solidarity and the safeguarding of the economy find their place. The concept of legality and guarantee of public and private action, all the more so if of an economic-financial nature, must therefore be oriented towards the substantial equality of the territory. Hence, the new economic regulation is given the role of warding off “enclaves” where phenomena that do not comply with the pillars of the European Union and even with higher international values can take place.

Hence, the law assumes the function of unity and guarantee, by which the structure of the legal system is translated into a systematic order that, in the polysemy of its articulations, constitutes its institutional and administrative set-up. On the one hand, the original economic models asserted the need to avert territorial divisions, even in the effects of a different level of social welfare. On the other hand, it is worth to note the convergence of the entire legal system (intended in a universal sense) towards a unitary conception of the market, in the context of an adaptation of the relative control and monitoring systems to the new social and economic needs.

The diverse spheres of circulation could be conceived in the name of the common need of the protection of primary values, ensuring the development of being in all its forms and social structures. However, there is still a way to go in the pursuit of these results. The need to steer public and private action in the direction of an even more appropriate valorization of social and economic differences, in the synthesis of a greater openness in favour of innovative economic spaces, comes to play. This is so albeit in the wake of a paradigm of action in which the operator and, above all, man act with a view to guaranteed and regulated progressive growth and development[65].

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[1] See., in relation to the need for protection of savers, Capriglione, Introduzione, in AA.VV., I Contratti dei risparmiatori, Milan, 2013, p. 25 et seq. where particular attention is devoted to the identification of the legal instruments offered by the legal system to achieve a high level of protection, a result also aimed at specific forms of public intervention.

[2] On this topic, see F. Di Porto, Metaversi e aspirazioni di intervento regolatorio: quali prospettive?http://www.senato.it/.

[3] S. Biagio, So finance in the Metaverse comes under the regulators’ lens. Between pitfalls and opportunities, the authorities explore the new dimension. The first signs of presence come from supervisory commissions in Brazil and Dubai, in 24 Finanza Fintech e Startup, 2 October 2022, available at http://www.ilsole24ore.com.

[4] CEO of Dworld, The Principality of Monaco is the first city in the world to enter the Metaverse, available at https://www.bitmat.it/blog/internet/metaverso/il-principato-di-monaco-e-la-prima-citta-al-mondo-ad-entrare-nel-metaverso/.

[5] I. VISCO, Final considerations of the Governor, Annual Report, Bank of Italy, 31 May 2022, pp. 21 et seq. “In an increasingly interconnected and digitised environment… The need to ensure the security of formation systems requires from on the one hand, adequate investment and careful organisational choices by the governing and supervisory bodies of intermediaries, and on the other hand, in-depth action to update not only the supervisory instruments but also the regulatory framework itself. In Europe, a proposal for a regulation (Digital Operational Resilience Act, DORA) envisages the introduction of harmonised provisions and robust and uniform safeguards for digital operational resilience in the financial sector, including through the introduction of a supervisory regime for particularly critical technology service providers”.

[6] See on this topic A. Balestrino, Democrazia e bilancio pubblico: atti del secondo Convegno nazionale di contabilità pubblica, Venice, 28-29 november 2019; G. Colombini, Scritti in onore di Aldo Carosi, Naples, 2021; E. D’Alterio, Dietro le quinte di un potere: pubblica amministrazione e governo dei mezzi finanziari, Bologna, 2021; C. Sciancalepore, Le risorse proprie nella finanza pubblica europea, Bari, 2021; R. Tarchi, Democrazia e istituzioni di garanzia: un rapporto dialettico o conflittuale?, Naples, 2021; F.E. Grisostolo, Stato regionale e finanza pubblica multilivello: una comparazione fra Italia e Spagna, Padua, 2020; M. Bergo, Coordinamento della finanza pubblica e autonomia territoriale: tra armonizzazione e accountability, Naples, 2018.; A. Pedone, F. Gastaldi, P. Liberati, I nodi della finanza pubblica: teoria e politica: scritti in onore di Antonio Pedone, Milan, 2018. On bank bonds see M. Sepe, Commento sub art. 12 bis, in F. Capriglione (directed by), Commentario al testo unico delle leggi in materia bancaria e creditizia, Padua, 2018, pp. 165-171; on the topic also see P. Bontempi, I contratti bancari per la raccolta del risparmio, in Diritto bancario e finanziario, Chap. X, Milan, 2021, pp. 319 et seq.; C. Brescia Morra, Obbligazioni bancarie e altri strumenti di raccolta del risparmio diversi dal deposito, in E. Capobianco (edited by), I contratti bancari, Turin, 2016, pp. 135 et seq; G. Desiderio, L’attività bancaria, in F. Capriglione (edited by), Manuale di diritto bancario e finanziario, Padua, 2019, pp. 185 et seq.; G. Fauceglia, Le obbligazioni emesse dalle banche, in Quaderni di giurisprudenza commentata, Milan, 2000; P. Marchetti, Le obbligazioni nel Testo unico delle leggi in materia bancaria e creditizia, in Banca, Borsa, Titoli di Credito, n. 1, 1994, pp. 485 et seq..; N. Salanitro, Titoli di credito e strumenti finanziari, in Banca, Borsa, Titoli di credito, n. 1, 2009, pp. 1 et seq.; on civil law discipline concerning bonds see P. Jaeger, F. Denozza, A. Toffoletto, Appunti di diritto commerciale, Milan, 2019, pp. 308 et seq.

[7] On Fintech, see footnote 1.

[8] F. CAPRIGLIONE, Introduzione, in Av.Vv. Finanza, Impresa e Nuovo Umanesimo, see pp. 157 et seq.

[9] V. Lemma, Etica e professionalità bancaria, in Banche ed Etica (by) I. Sabbatelli, Padua, 2013, pp. 132 et seq.; ID Intelligenza Artificiale e sistemi di controllo: quali prospettive regolamentari? (Artificial Intelligence and controls: which regulatory perspectives?), pp. 319 et seq.; A. Sacco Ginevri, Ancora su Intelligenza Artificiale e corporate governance (Again on Artificial Intelligence and Corporate Governance), p. 343 et seq.; U. Minneci, La verifica del merito creditizio: una valutazione a sua volta sindacabile? (Are credit ratings disputable?), pp. 353 et seq., in Pubblicazione degli atti del Convegno “Etica e diritto per un’intelligenza artificiale sostenibile in finanza” organized on 26 October 2021 at University of Milan edited by G.L. Greco, in Riv. Trim. Dir. Economia, Suppl. n. 2, n. 3/2021. See F. Capriglione, Etica della finanza, mercato, globalizzazione, Bari, 2004; ID Finanza, Impresa e Nuovo Umanesimo, Bari, 2007. More generally, on the discipline of financial instrument, it is recommended to consult A. Urbani, I servizi e le attività di investimento e gli strumenti finanziari, in F. Capriglione (edited by), Manuale di diritto bancario e finanziario, Padua, 2019, pp. 235 et seq.; ID., L’oggetto dei servizi e delle attività di investimento, in F. Capriglione (edited by), I contratti dei risparmiatori, Padua, 2013, pp. 285 et seq.; and the same author, Attività bancaria, finanziaria e d’investimento: caratteri, contenuti e tecniche di prevenzione degli abusi, in F. Capriglione, Diritto delle banche, degli intermediari finanziari e dei mercati, Bari, 2003, pp. 152 et seq; ID., I servizi, le attività di investimento e gli strumenti finanziari, in F. Capriglione, L’ordinamento finanziario italiano, Padua, 2010, pp. 448 et seq. On the same topics see F. Capriglione, Crisi di sistema ed innovazione normativa: prime riflessioni sulla nuova legge sul risparmio (l. n. 262/2005), in Banca, borsa, titolo di credito, n. 1, 2006, pp. 14 et seq.; Id., Concentrazioni bancarie e logica di mercato, in E. Bani, Concentrazioni bancarie e tutela della concorrenza, Padua, 2007, pp. 37 et seq.; V. Chionna, Le forme dell’investimento finanziario. Dai titoli di massa ai prodotti finanziari, Milan, 2008, pp. 45 et seq; B. Libonati, Titoli di credito e strumenti finanziari, Milan, 1999, pp. 109 et seq.; A. Niutta, Prodotti, strumenti finanziari e valori mobiliari nel T.u.f. aggiornato in base alla MiFID (con il d.lgs. n. 164/2007), in Rivista di diritto commerciale, n. 1, 2009, pp. 8 et seq.; G. Partesotti, La dematerializzazione del titolo di credito e la nozione di valore mobiliare e di strumento finanziario, G. Partesotti, D. Manente, A. Urbani, Lezioni sui titoli di credito, Bologna, 2010; F. Capriglione, I “derivati” dei comuni italiani nella gestione della finanza pubblica. Una problematica ancora attuale, in Banca, borsa, titoli di credito, 2014, I, pp. 265 et seq.; F. Capriglione, The use of “derivatives” by italian local authorities in public finance management. Still an issue, in Law and Economics Yearly Review, n. 2, 2013, n. 2, pp. 399 et seq.; M. Passalacqua, Derivatives financial instruments and balanced budgets: the case of the Italian public administration, ibidem, pp. 447 et seq.; P. Savona, Do we really understand derivatives? ibidem, 2013, pp. 281 et seq. D. Rossano, Gli swap e la gestione della finanza pubblica nella giurisprudenza civilistica e della Corte dei Conti, in Rivista della Corte dei Conti, n. 3, 2019, I, pp. 40 et seq.

[10] See F. Nietzsche, Così parlò Zarathustra, tr. it. Adelphi, Milan 1968, vol. VI, book I.

[11] On this topic see A. Antonucci, M. De Poli, A. Urbani, I Luoghi dell’economia. Le dimensioni della sovranità, with introductory remarks of A. Sciarrone Alibrandi, Luoghi e non-luoghi dell’economia, Turin, 2019. F. Capriglione, Politica e finanza nell’Unione europea. Le ragioni di un difficile incontro, Padua 2015; ID, L’UE alla ricerca di nuovi equilibri tra armonizzazione normativa, convergenza economica e sovranismi, last work in quotes. p. 157. A. Mondini, Corso di diritto della finanza pubblica, Milan, 2022, pp. 9 et seq. See F. Capriglione, Nuova finanza e sistema italiano, Studi di diritto dell’economia, Turin, 2016; ID, Crisi finanziaria e dei debiti sovrani: l’Unione europea tra rischi ed opportunità, Turin, 2012; ID, L’ordinamento finanziario italiano, Padua, 2010; ID, Scritti in onore di Francesco Capriglione: le regole del mercato finanziario (edited by) S. Amorosino, G. Alpa, V. Troiano, M. Sepe, G. Conte, M. Pellegrini, A. Antonucci, Padua, 2010; ID, La nuova disciplina della società europea, Padua, 2008; ID, Finanza impresa e nuovo umanesimo: riflessioni a margine del IV Simposio europeo dei docenti universitari su l’impresa e la costruzione di un nuovo umanesimo, Rome, 22-25 June 2006.

[12] In general, on Fintech, see G. Alpa, Fintech: un laboratorio per giuristi, in Contratto e Impresa, n. 2, 2019, pp. 377 et seq.;D.  Arner, J.N. Barberis, R.P. Buckley, FinTech, RegTech and the Reconceptualization of Financial Regulation, in University of Hong Kong – Faculty of Law, Research Paper no. 2016/035; Aa.Vv., The Evolution of Fintech: A New Post-Crisis Paradigm? in University of Hong Kong – Faculty of Law, Research Paper no. 2015/047; A. Canepa, Big tech e mercati finanziari: “sbarco pacifico” o “invasione”? Analisi di un “approdo” con offerta “à la carte”, in Rivista trimestrale di diritto dell’economia, n. 3, 2021, pp. 465 et seq.; F. Capriglione, Industria finanziaria, innovazione tecnologica, mercato, in Rivista trimestrale di diritto dell’economia, n. 4, 2019, pp. 392 et seq; M. Cian, C. Sandei (edited by), Il diritto del Fintech, Padua, 2020; E. Corapi, R. Lener (edited by), I diversi settori del Fintech, Padua, 2019; M. De Poli, Fundamentals of Banking Law, Padua, 2018, p. 39; F. Di Ciommo (edited by), Banche, intemerdiari e Fintech. Nuovi strumenti digitali in ambito finanziario, Milano, 2021; V. Falce, G. Finocchiaro, Fintech. Diritti, Concorrenza, Regole, Bologna, 2019;V. Lemma, FinTech Regulation: Exploring New Challenges of the Capital Markets Union, Palgrave Macmillan, Cham, 2020; V. Lemma, The regulation of fintech banks: questions and perspectives, in Open Review of Management, Banking and Finance, Vol. 5, n. 2, 2019, pp. 30 et seq; R. Lener, Tecnologie e attività finanziaria, in Rivista trimestrale di diritto dell’economia, n. 3, 2019, pp. 267 et seq.; E. Macchiavello, La regolazione del fintech tra innovazione, esigenze di tutela e level-playing field. L’inesplorato caso dell’invoice trading, in Banca Impresa e Società, n. 3, 2019, pp. 497 et seq.; A.M. Pancallo, La consulenza finanziaria nell’era del Fintech, Bari, 2022; M. Pellegrini, il diritto cybernetico nei riflessi sulla materia bancaria e finanziaria, in F. Capriglione (edited by), Liber Amicorum Guido Alpa, XIV chap., Padua, pp. 353-356.

[13] V. G. Tarello, Storia della cultura giuridica moderna, Bologna, 1976, pp. 269 et seq.

[14] For a deep analysis see A. Scalone(edited by), Stato, Scienza e Società in Hans Kelsen, Modena, 2016, pp. 71 et seq.

[15] I. Visco, Considerazioni finali del Governatore della Banca d’Italia, Eurosistema, Relazione annuale, 31 May 2022, available at https://www.bancaditalia.it/pubblicazioni/relazione-annuale/.

[16] Published on the Official Journal on 17 March 2023, n. 65.

[17] V. Lemma, Verso un mercato degli strumenti finanziari digitali, available at dirittobancario.it, 2023.

[18] This includes the desire to ensure the overall containment of harmful emissions through the introduction of an environmental duty previously not provided for the most polluting imports. See press release Climate change: Deal on a more ambitious Emissions Trading System (ETS), available at https://www.europarl.europa.eu/news/it/press-room/20221212IPR64527/ climate-change-deal-on-a-more-ambitious-emissions-trading-system-ets. It is worth to mention, in this field, Kyoto protocol of 1997, which follows the United Nations Framework Convention on Climate Change (UNFCCC) arose to combat climate change. It is the first international agreement to include commitments by industrialized countries to reduce emissions of certain greenhouse gases responsible for global warming. More recently, Legislative Decree No. 47 of June 9, 2020 implemented the amendments made by Directive (EU) 2018/410 to the ETS Directive 2003/87/EC. For a reconstruction of the overall regulatory process, see Legislative Decree June 9, 2020, no. 47 implementing Directive (EU) 2018/410 of the European Parliament and of the Council of March 14, 2018, amending Directive 2003/87/EC to support more cost-effective emission reductions and promote low-carbon investments, as well as adapting national legislation to the provisions of Regulation (EU) 2017/2392 on aviation activities and Decision (EU) 2015/1814 of the European Parliament and of the Council of October 6, 2015 on the establishment and operation of a market stabilizing reserve, published in O.J. General Series No. 146 of June 10, 2020.

[19] On the subject of the “polluter pays” principle, it should be pointed out that administrative jurisprudence has, most recently, established with the recent ruling of the Council of State, Sec. IV, June 14, 2022, No. 4826, that the burden on the polluter can extend beyond the mere economic contribution, not excluding a priori an obligation to remediation, where the danger of aggravation of the critical environmental situation is still current, available at www.appaltiecontratti.it, 16 June 2022.

[20] This identifies the wish to avoid that costs resulting from climate change policy may direct market participants to seek more advantageous solutions.

[21] A kind of carbon tax is envisaged, as outlined in the July 14, 2021 Proposal for a Regulation of the European Parliament and the Council, available at https://www.certifico.com/component/attachments/download/33616.

[22] State of the Union 2022, Engagement letter, Bruxelles, 14 September 2022.

[23] L. Sanna, Come disciplinare il metaverso prima che diventi un sistema feudale, available at www.agendadigitale.eu.

[24] Directive (EU) 2019/2161 of the European Parliament of the Council of November 27, 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council for better enforcement and modernization of Union rules on consumer protection, Dec. 18, 2019, Official Journal of the European Union, L. No. 328/7.

[25] See Law No. 238 of December 23, 2021, Provisions for the fulfillment of obligations arising from Italy’s membership in the European Union – European Law 2019-2020, in O.J. No. 12 of 17-1-2022.

[26] V. Lemma, Quali controlli per le valute virtuali?, in Rivista Trimestrale di Diritto dell’economia, 2022, supp. 3, p. 52 et seq.

[27] See comments on artt. 67-quater/undecies di V. Lemma in Aa.Vv., Commentario breve al diritto dei consumatori, Padua, 2010, pp. 543-574.  

[28] See art. 67-ter, lett. (b.

[29] See “(14) This directive covers all financial services capable of being provided at a distance. Certain financial services are, however, governed by specific provisions of Community legislation, which continue to apply to those financial services. However, principles concerning the distance marketing of such services should be established,” in Directive 2002/65/EC of the European Parliament and of the Council of September 23, 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, O.J. No. L 271, 09/10/2002 p. 0016 – 0024.

[30] This regulatory framework, moreover, is intensified in the same way as the amendments to the Capital Markets Recovery Package (CMRP) pertaining to Directive (EU) 2021/338, in the provision of simplification measures of investor protection regulations and in the innovations introduced by Legislative Decree No. 131 of August 3, 2022. See Legislative Decree No. 131 of August 3, 2022, Adjustment of national legislation to the provisions of Regulation (EU) 2017/2402, which establishes a general framework for securitization, establishes a specific framework for simple, transparent and standardized securitizations, and amends Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No. 1060/2009 and (EU) No. 648/2012. Amendments to Legislative Decree No. 58 of February 24, 1998, in Official Gazette No. 205, 2-9-2022.

[31] Additionally, according to Directive 2002/65/EC (first recital), a need emerges to prepare suitable instruments that do not compromise, in distance communications, the correct information of the final user of the service. Hence, assuming all this is a “circular” information activity both in the pre-negotiation phase of the relationship and in the post-negotiation phase, in the context of a system capable of offering protection both before and after the finalization of the negotiation will. Indeed, the fifth recital affirms the centrality of financial services where, due to their intangible nature, “they particularly lend themselves to distance commerce, and the establishment of a legal framework applicable to the distance marketing of financial services should increase consumer confidence, such as electronic commerce”.

[32] See art. 67-quater, Consumer code.

[33] See on this point V. LEMMA, Commento sub articolo 67 quater del Codice del Consumo, in Aa.Vv., Commentario breve al diritto dei consumatori, Padua, 2010, pp. 543 et seq.

[34] For a broader reconstruction on the subject (centralized metaverses; generalist metaverses; etc), see F. Di Porto, p. 3. Moreover see J. Arkontaky, T. Di Bartolo, C. Hackl, D. Lueth, Y. Siu, Navigating the Metaverse, Farnham, 2022; K. Novak, Introducing the Metaverse, again! in TechTrends, 66, 2022, 737-739; S. Mystakis, Metaverse, in Encyclopedia, 2, 2022, pp. 486-497; M. Van Rijmemam, Step into the metaverse, Farnham, 2022.

[35] Ibidem.

[36] Idem, see pp. 4 et seq.

[37] F. Di Porto, see pp. 8-9.

[38] V. Lemma, Etica e professionalità bancaria, in Banche ed etica (edited by) I. Sabatelli, Saggi e monografie di diritto dell’economia, directed by F. Capriglione, pp. 129 et seq.

[39] On possible use of crypto-currences, see F. Di Porto, where the author refers to Decentraland with the digital currency “MANA”, see last work quoted, p. 4.

[40] On Fintech, see G. Alpa, Fintech: un laboratorio per giuristi, in Contratto e Impresa, n. 2, 2019, pp. 377 et seq.;D.  Arner, J.N. Barberis, R.P. Buckley, FinTech, RegTech and the Reconceptualization of Financial Regulation, in University of Hong Kong – Faculty of Law, Research Paper no. 2016/035; Aa.Vv., The Evolution of Fintech: A New Post-Crisis Paradigm? in University of Hong Kong – Faculty of Law, Research Paper no. 2015/047; A. Canepa, Big tech e mercati finanziari: “sbarco pacifico” o “invasione”? Analisi di un “approdo” con offerta “à la carte”, in Rivista trimestrale di diritto dell’economia, n. 3, 2021, pp. 465 et seq.; F. Capriglione, Industria finanziaria, innovazione tecnologica, mercato, in Rivista trimestrale di diritto dell’economia, n. 4, 2019, pp. 392 et seq.; M. Cian, C. Sandei (edited by), Il diritto del Fintech, Padua, 2020; E. Corapi, R. Lener (edited by), I diversi settori del Fintech, Padua, 2019; M. De Poli, Fundamentals of Banking Law, Padua, 2018, p. 39; F. Di Ciommo (edited by), Banche, intemerdiari e Fintech. Nuovi strumenti digitali in ambito finanziario, Milano, 2021; V. Falce, G. Finocchiaro, Fintech. Diritti, Concorrenza, Regole, Bologna, 2019;V. Lemma, FinTech Regulation: Exploring New Challenges of the Capital Markets Union, Palgrave Macmillan, Cham, 2020; V. Lemma, The regulation of fintech banks: questions and perspectives, in Open Review of Management, Banking and Finance, Vol. 5, n. 2, 2019, pp. 30 et seq.; R. Lener, Tecnologie e attività finanziaria, in Rivista trimestrale di diritto dell’economia, n. 3, 2019, pp. 267 et seq; E. Macchiavello, La regolazione del fintech tra innovazione, esigenze di tutela e level-playing field. L’inesplorato caso dell’invoice trading, in Banca Impresa e Società, n. 3, 2019, pp. 497 et seq.; A.M. Pancallo, La consulenza finanziaria nell’era del Fintech, Bari, 2022; M. Pellegrini, il diritto cybernetico nei riflessi sulla materia bancaria e finanziaria, in F. Capriglione (edited by), Liber Amicorum Guido Alpa, XIV chap., Padua, pp. 353-356.

[41] On the legal issues arising from digital finance see L. Ammanati, G.L. Greco, Piattaforme digitali, algoritmi e big data: il caso del credit scoring, in Rivista trimestrale di diritto dell’economia, n. 2, 2021, pp. 292 et seq.; E. Bani, Le piattaforme di peer to peer lending: la nuova frontiera dell’intermediazione creditizia, in T. Paracampo (edited by), FinTech. Introduzione ai profili giuridici di un mercato unico tecnologico dei servizi finanziari, pp. 164-165; R. Bocchini, Lo sviluppo della moneta virtuale: primi tentativi di inquadramento e disciplina tra prospettive economiche e giuridiche, in Diritto dell’informazione e dell’informatica, n. 1, 2017, pp. 35 et seq.; F. Ciraolo, La disciplina degli e-money token tra proposta di Regolamento MiCA e normativa sui servizi di pagamento. Problematiche regolatorie e possibili soluzioni, in Rivista della regolazione dei mercati, n. 1, 2022, pp. 239 et seq.; A. Davola, Technological innovation in creditworthiness assessment, in Open Review of Management, Banking and Finance, 2019; R. Federico, Initial coin offerings e cripto-attività: un’analisi comparata tra “arbitraggio tecnologico” ed eterogenesi dei fini dell’approccio regolatorio italiano, in Rivista trimestrale di diritto dell’economia, n. 3, 2020, pp. 513 et seq.; V. Lemma, The public intervention on cryptocurrencies between innovation and regulation, in Open Review of Management, Banking and Finance, 2022; M. Pellegrini, Transparency and Circulation of Cryptocurrencies, in Open Review of Management, Banking and Finance, 2021; D. Rossano, La consulenza finanziaria automatizzata e la tutela degli investitori, in F. Falcone, G. Fimmanò (edited by), Fintech, 2019, pp. 209 et seq; F. Sartori, La consulenza finanziaria automatizzata: problematiche e prospettive, in Rivista trimestrale di diritto dell’economia, n. 3, 2018, pp. 253 et seq.; M. Sepe, Innovazione tecnologica, algortimi e Intelligenza artificiale nella prestazione dei servizi finanziari, in Rivista trimestrale di diritto dell’economia, suppl. n. 3, 2021, pp. 186 et seq.; A. Urbani, La disciplina antiriciclaggio alla prova del processo di digitalizzazione dei pagamenti, in Rivista di diritto bancario, n. 1, 2018, pp. 691 et seq.

[42] At the (European) regulatory level, the phenomenon of cryptocurrencies has been traced back to “a representation of digital value not issued or guaranteed by a central bank or public entity, not necessarily linked to a legally established currency, which does not possess the legal status of currency or money but is accepted by natural and legal persons on a voluntary basis as a medium of exchange and which can be transferred, stored and exchanged electronically”; on the point cf. point 18 of Directive 2015/849, on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing, as subsequently amended by Directive 2018/843 of May 30, 2018, at consideration 10 of which possible uses that virtual currencies could take in practice are highlighted (“although virtual currencies can often be used as a means of payment, they could also be used for other purposes and have wider uses, for example as a medium of exchange, investment, as store of value products or be used in online casinos”). In general terms, on the other hand, cryptocurrencies are usually understood to mean those representations of value, used as a medium of exchange or for investment purposes, existing on a digital basis and totally divorced from legal currencies or controlling entities. in the prospective context, therefore, certain issues arise within their use (and their legal qualification) and about their use in the metaverse. In this regard, it should be noted that the legislature, in spite of the qualification provided in the union, has emphasized the investment purpose in the definition provided by itself. So much so that the very systematic framing of virtual currencies within the group of financial instruments entails a number of implications, including the applicability of the rules of the T.U.F. and, of course, also those on the subject of financial intermediaries. It cannot, then, be overlooked with regard to this last profile the impact of the Decree of the Ministry of Economy and Finance of February 17, 2022, which established the modalities and timing by which service providers related to the use of virtual currency and providers of digital wallet services are required to make the legal disclosures, including for registration in the special section of the computerized public register, kept by the OAM. Recently, moreover, case law has also sought to confirm the approach that sees cryptocurrencies as having an investment purpose, having on several occasions implemented the principle that virtual currency can be considered a financial instrument (see Legislative Decree no. 125/2019) when it “takes on the function, i.e., the concrete cause, of an investment instrument and therefore of a financial product, which as such must be regulated with the rules on financial intermediation (art. 94 ff. T.U.F.),” see Cass. Sept. 17, 2020, no. 26807; as well as Cass. 10-30 November 2021, no. 44337.

[43] Available at https://cryptonomist.ch/2022/07/04/facebook-abbandona-novi/.

[44] Defining the same as virtual currency in the sense of “a digital representation of value, not issued by a central bank or public authority, not necessarily linked to a legal tender, used as a medium of exchange for the purchase of goods and services, transferred, stored and traded electronically” ex art. 1, paragraph 2, lett. qq, Legislative Decree No. 231/2007, as amended by art. 1, Legislative Decree No. 90, May 25, 2017. See M. Rubino De Ritis, Rivista del notariato, nov.-dic. 2018, fasc. 6, p. 1315. For the reconstructions offered on the subject, among others, please allow reference to C.A. Mauro, Criptovalute e conferimenti societari: estensione dell’utilizzo di strumenti ibridi nel diritto interno, in Collana di Studi Giuridici promoted by «Unitelma Sapienza» University, Rome, 2021, pp. 153 et seq.

[45] R. Kazim, Regulating the metaverse: what should we do to protect consumer interest? Athena Information Solutions Pvt. Ltd, New Deli, 29 May 2022, p. 2.

[46] Idem, p. 2.

[47] K. Long, South Korean banks go from covid to the metaverse, The Banker, The Financial Time Limited, London, 1 March 2022; ID., Bank’s experiments in the metaverse, The Banker, The Financial Time Limited, London, 1 April 2022. Furthermore also see, v. J. Adams, American express journeys into the metaverse, in American Banker, 187 (64), 4 April 2022; A. Adeyoju, Artificial intelligence and the future of law practice in Africa, available at athttps://www.tekedia.com/artif​icial-intelligence-and-the-future-of-law-practice-in-africa1/, 2018; A. Bal, Developing a Regulatory Framework for the Taxation of Virtual Currencies, in Intertax: Kluwer Law International B.V., 2018; M. Ball, The metaverse and how it will revolutionize everything, New York, 2022; N. Bandelj, F. Wherry, V. Zelizer, Money Talks: Explaining How Money Really Works, Princeton, 2017; T. Belcastro, Getting on board with robots: how the business judgment rule should apply to artificial intelligence devices serving as members of a corporate board, in Georgetown Law Technol Rev, 4, 2019, 263-278; R. Belk, M. Humayun, M. Brouard, Money, possession, and ownership in the Metaverse: NFTs, cryptocurrencies, Web3 and Wild Markets, in Journal of Business Research, 153, 2022, pp. 198-205; S.I. Birbil, K. Caliskan, Terms of Service Agreements of 251 Cryptocurrency Exchanges Representing 99.99% of Centralized Data Money Transactions. GitHub Repository, 2021 in  https://github.com/sibirbil/ TermsofService; C. Breidbach, S. Tana, Betting on Bitcoin: How social collectives shape cryptocurrency markets, in Journal of Business Research, 122, 2021, 311-320; R. Brownsword, Law, authority, and respect: three waves of technological disruption, in Law, Innovation and Technology, 14 (1), 2022, pp. 5-40; K. Caliskan, The Elephant in the Dark: a new framework for Criptocurrency Taxation and Exchange Platform Regulation in the US, in Journal of Risk and Financial Management, 15, 18, 2022; B. Chester Cheong, Regulating avatars in the metaverse, in The Business Times, 26 August 2022; I. Cvetkova, Cryptocurrencies Legal Regulation, in BRICS Law Journal, 5, 2018, pp. 128–153; C. Desan, Making Money: Coin, Currency, and the Coming of Capitalism, Oxford University Press, 2014; J. Dewey, Blockchain & Cryptocurrency Regulation, London, 2019; N. Dodd,  The Social Life of Bitcoin. Theory, Culture & Society, 35, 2018, pp. 35-56; Q. DuPont, Cryptocurrencies and Blockchains: Digital Media and Society, Medford, 2019; D. Evans, R. Schmalensee, The Industrial Organization of Markets with Two-Sided Platforms, Cambridge, 2015; R.S. Fischer, Legal constraints on the imagination in the virtual world of second life, in Intellectual Property Journal, 23 (1), 2011, pp. 327-353; L. Floridi, Metaverse: a matter of experience, in Philosophy & Technology, 35, 2022, pp. 73 et seq.; Z. Gabbay, Will NFTs push regulator to Regulate the Metaverse, in The Licensing Journal, febbraio 2022, p. 8 et seq.; P. Henz, The social impact of the metaverse, in Discolver Artificial Intelligence, 2:19, 2022; M.C. Lacity, Blockchain: from Bitcoin to the Internet of Value and beyond, in Journal of information Technology, 37(4), 2022, pp. 326-340; R. Kotick, S. Nadella, The coming battle over banking in the metaverse, in Euromoney, 25 gennaio 2022;D. Morris, A brief history in digital time, in International Financial Law Review, 15 giugno 2022; E. Muzaffer, K. Karatepe Meltem, Impact of Artificial Intelligence on Corporate Board Diversity Policies and Regulations, in European Business Organization Law Review, 23, 2022, pp. 541-572; V. Papakonstantinou, States as platform following the new Eu regulations on online platforms, 21(2), 2022, pp. 214-222; J.C. Rochet, J. Tirole, Platform competition in two-sided markets, in Journal of the European Economic Association, 1, 2003, pp. 990-1029.

[48] Ibidem.

[49] L. Hadar, US vs Meta: progressive regulation or crushing the free market, SPH Media Limited, 1 September 2022, Singapore.

[50] D.J. Grimm, Against regulatory disruption, American Bar Association, Chicago, September 2022.

[51] See F. Capriglione, Introduzione, in AA.VV., I Contratti dei risparmiatori, Milano, 2013, p. 25 et seq.

[52] See V. Lemma, The public intervention on cryptocurrencies between innovation and regulation, in Open Review of management, banking and finance, 2023, para. 4

[53] See V. Lemma, Quali Controlli Per Le Valute Virtuali?, Rivista trimestrale di diritto dell’economia, 2022, p. 61. See also M. Rabitti, Le regole di supervisione nel mercato digitale: considerazioni intorno alla comunicazione Banca d’Italia in materia di tecnologie decentralizzate nella finanza e cripto-attività, in Rivista trimestrale di diritto dell’economia, sup. 3 n. 1/2022.; F. Mattassoglio, Le proposte europee in tema di “crypto-assets” e DLT [“Distributed Ledger Technology” – Tecnologia a Registro Distribuito]. Prime prove di regolazione del mondo “crypto” o tentativo di tokenizzazione del mercato finanziario (ignorando “bitcoin”)?,in Rivista di diritto bancario, 2021, fasc. 2, pt. 1, p. 413 ss.

[54] See J. M. Garon, Legal Implications of a Ubiquitous Metaverse and a Web3 Future, in SSRN no. 4002551, January who highlights that although these doctrinal issues are not new, the scope of the metaverse and its potential social importance will reshape the market in sometimes unpredictable ways. Hence, technologists, practitioners, and regulators must be open to these shifts to appropriately develop the correct mix of user control, industry practice, and regulatory oversight.

[55] See D Siclari, Evoluzioni della funzione di vigilanza sui mercati finanziari: controllo da parte di organismi di diritto privato e potere sanzionatorio (Evolution of the supervisory function on financial markets: control by private law bodies and sanctioning power), Rivista trimestrale di diritto dell’economia, sup. 3 n. 1/2022.

[56] As these virtual worlds mature and occupy a central position within the digital landscape, there arises a pressing need for comprehensive governance and legal frameworks to ensure secure, equitable, and thriving environments for every participant. See A. Tan, Metaverse Realities: A Journey Through Governance, Legal Complexities, and the Promise of Virtual Worlds, SSRN no. 4393422, December 9, 2021. See also P. Lucantoni, ‘ “‘high frequency trading” nel prisma della vigilanza algoritmica del mercato,in Analisi Giuridica dell’Economia, 2019, p. 29 ff.; F. Sartori, Impresa, mercati e tutela civile: note introduttive,in Rivista di diritto bancario, 2020, 1S, p. 1 ff.

[57] See. R. Masera, Web 1.0, 2.0, 3.0; InfoSphere; Metaverse: An Overview. Monetary, Financial, Societal and Geopolitical Transformation Cusps, SSRN no. 4337362, January 14, 2023. on the road to promoting constructive convergence, fostering use of digital advances and enacting appropriate internationally coordinated regulatory frameworks should be maintained open.

[58] See R.Lener, Il paradigma dei settori regolati e la democrazia dell’algoritmo. Note introduttive, in Rivista di diritto bancario, 2020, 1S, p. 193 ff.; V. Lemma, The Regulation of Fintech Banks: Questions and Perspectives, in Open Review of Management, Banking and Finance, 2019

[59] See V. Troiano, Gli istituti di moneta elettronica, in Quaderni di ricerca giuridica della Consulenza legale della Banca d’Italia, 2001, p. 12 ff.; M. Sepe, Dimensione bancaria e nuovi rischi del settore, in Rivista Trimestrale di Diritto dell’Economia, 2022, S2, p. 74 ff.

[60] See A. Canepa, Le piattaforme fra nuove dinamiche di mercato e ricerca di strumenti regolatori efficaci, in Rivista della regolazione dei mercati, 2018, fasc. 2, p. 181 ff.; V. Lemma, Fintech Regulation: The Need for a Research, in Open Review of Management, Banking and Finance, 2018, 4, 2, p. 38.

[61] See V. Lemma, Fintech Regulation, Cham (SW), p. 374.

[62] D.J. Grimm, Against regulatory disrumption, American Bar Association, Chicago, September 2022, pp. 43-44.

[63] C. Skinner, Why bancks need to finance futuristic ideas, in The Banker, The Financial Times Limited, 1 December 2021, London.

[64] Van Dusen, The transformation of corporate banking, in The Banker, The Financial Times Limited, 1 November 2022, London.

[65] G.C. De Martin, Le autonomie territoriali nell’amministrazione della Repubblica, in N. Antonetti, A. Pajno (edited by), Stato e sistema delle autonomie dopo la pandemia. Problemi e prospettive, Bologna, 2022, p. 116; P. Urbani, Istituzioni, Economia, Territorio. Il gioco delle responsabilità nelle politiche di sviluppo, Turin, 2020, p. 151.

Author

* Extraordinary Professor of Economic Law at Link Campus University

** Full professor of Economic Law at G. Marconi University in Rome

This essay was written at the end of a visiting experience of C. Alesssio Mauro at Oxford University (UK). Although this paper is the result of a joint reflection of the authors, C. Alessio Mauro wrote the paragraph 1-4 e 7 and Valerio Lemma wrote the paragraphs 5-6