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34 Fla. J. Int'l L. 1 (2022)

handle is hein.journals/fjil34 and id is 1 raw text is: A SYSTEMIC PERSPECTIVE FOR U.S. OPEN BANKING: ENSURING PARTICIPATION, ACCESS, AND STABILITY Scott Farrell* Abstract Finally, open banking is on a path to be established in the United States after more than a decade since the laying of its legislative foundation in the Dodd-Frank Act. With the issuance of an advance notice of proposed rulemaking by the Consumer Financial Protection Bureau, and the Executive Order on Promoting Competition in the American Economy, regulatory momentum is building. However, there is much work to be done in the legal design of rights, responsibilities, and relationships under open banking in the U.S. before it can empower consumers to derive value from their banking data. Fundamental issues need to be addressed including what data is covered, in what form it is provided, how the holding and use of the information is controlled, the security and accuracy of the shared data, and the transparency of the data sharing. A broader perspective of open banking as a system will also be necessary to ensure the participation of banks, data recipients, intermediaries and other service providers needed to deliver wider economic outcomes relating to competition, innovation, inclusion, and consumer protection. This Article explains a systemic perspective of open banking as a network of interconnected and interdependent participants sharing valuable customer data and analyses how access and stability need to be balanced in open banking's legal design. It compares the legal features which manage participation in the established open banking systems of Australia and the United Kingdom and evaluates them against equivalent legal features in banking payment systems, which are also networks for the communication of valuable information. Through this comparison and evaluation, this Article finds that the United Kingdom (U.K.) open banking offers a lower level of regulation of indirect participation and outsourcing than Australian open banking and more limited rights to suspend participation and less clear protection of the value in customer data in participant default and insolvency. It also shows that the design of access and stability under Australian open banking is more aligned with banking payment systems in the management of potentially systemic risks. By demonstrating how differing legal * Adjunct Professor, School of Private and Commercial Law, UNSW Sydney, and Partner, King & Wood Mallesons. I would like to thank Scientia Professor Ross Buckley, Professor Douglas Arner, and Dr. Anton Didenko for their ideas and guidance, the Australian Research Council Laureate Fellowship (FL200100007) for its financial support of this research, and Jack Zhou for their most helpful research assistance. The views expressed herein are mine, and not necessarily those of the Australian government, the Australian Research Council, King & Wood Mallesons or those who have assisted me with this research.

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