Giambrone issues a stark warning to investors in binary options: the (lack of) regulation of binary option trading
Binary options are a form of financial contract which pay a fixed sum if the option is exercised or expires in the money, or nothing at all if the option is exercised or expires out of the money.
Binary Options brokers operate online trading websites through which customers can buy or sell binary ("call" or "put") options, predicting whether the price of a certain commodity will go up or down in a specific time period. Usually, binary options allow consumers to speculate on the short term movement in price of a stock, commodity, currency, index, or just about anything that is capable of being measured in financial terms.
In the light of the growth of the binary options market, Giambrone continues to be concerned about the current unsatisfactory position and lack of consumer protection which only serves to open the door of opportunity to the unscrupulous broker, so we are continuing to lobby the UK and EU regulators because the current situation has becomeun tenable; our firm represents more than 3,000 binary options investors, from all over the world, complaining of losses in excess of $300m, although the real size of the binary options market is judged to be upwards of $30 billion globally.
In the UK, the FCA does not currently regulate binary options and investors do not enjoy the protections offered by the UK’s financial services regulatory framework when purchasing binary options.
Under current UK legislation binary options are classified as bets and are supervised by the Gambling Commission rather than the FCA even if the European Commission believes that certain binary options are within the scope of MiFID, so should be regulated by the FCA instead.
However, binary options investors should be aware that in the small print of the UK Gambling Commission it is noted that it only regulates a broker if it has remote gambling equipment located in Great Britain. If this is not the case and the remote gambling equipment is located outside Great Britain, any binary options broker will not be regulated either by the Gambling Commission or by the FCA.
“Obviously, it is impossible for an investor to determine at the outset whether a broker has such equipment so the regulatory environment continues to be opaque and unsatisfactory” says Joanna Bailey, Associate at Giambrone’s Forex Trading Litigation team “and because of the peculiar type of investment, neither the FCA nor the UK Gambling Commission appear to be regulating such brokers, which have been allowed to flourish over the years in a totally unregulated environment”.
The legal position is different in other EU countries, where different Member States have taken different approaches to the regulatory issue and have considered binary options to be a financial, rather than a gambling product. Several EU Member States, including Cyprus, have included binary options within the scope of their transposition of MiFID financial instrument.
Clients are often faced with the difficult legal situation of being faced with a binary options brokerage which is legally established and authorised in a EU country, as well as Norway, Lichtenstein, and Iceland (the European Economic Area or “EEA”), that is also entitled to do business throughout the EU by way of the result of the freedom of establishment and “passporting” rules set out within the EU financial services directives (see, for example, the Markets in Financial Instruments Directive (MiFID) and the Capital Requirements Directive (CRD) for investment firms and credit and financial institutions respectively).
“Any broker offering binary options trading which operate as financial services firms in other EU country is able to do business in the UK”, says Gabriele Giambrone, Forex, Binary Options and Financial Services Litigation team at Giambrone, the international law firm. “The current regulatory regime creates confusion for potential purchasers of binary options about the status and regulation of many online brokers, most of which appear to be trading from virtual offices in London with no physical presence of any member of staff”. Giambrone has been campaigning for immediate regulation of the binary options market across the European Union to end these inconsistencies in consumer protection and to put an immediate end to such high scale speculation in online trading of such very risky products”.
It is therefore not uncommon that many EU-regulated binary options brokers appear to be registered in the FCA’s Register of financial services firms, although it is not clearly specified that the UK FCA does not regulate them nor it is explained that investor would not be able to enjoy the protection offered by the UK’s financial services regulatory framework when purchasing binary options via such registered broker.
There are currently no legal requirements for the binary option firms to set out such disclaimer on their website and therefore most investors proceed with purchasing binary options investments in the incorrect assumption that they are dealing with a UK regulated firm, which is not the case.
CySec regulation, in any event, does not prove to be sufficient protection for consumers. The restrictive powers of CySec mean that they cannot order the broker companies to re-pay funds to investors. Instead, CySec tend to issue administrative fines only.
Giambrone will continue to fight vigorously for the protection of customers and to ensure the wrongdoers are held accountable.
If you are a victim or have lost funds with this binary options broker, please contact our Client Relations Team to arrange a discussion with a lawyer in the Binary Options Litigation team. Our international lawyers are able to provide assistance in English, French, Spanish, German, Arabic and Chinese.