Unchained - Why the Question Over How to Regulate Perps Has Turned Into a Fight
Episode Date: September 4, 2026The CME is suing its own regulator over how perps get classified, and the ruling decides who in the US can trade them. Three lawyers make the case for futures over swaps. ============================...============================ Thank you to our sponsor! Visit 1inch.com to swap tokenized securities, crypto and more. Simple. Secure. Self-custodial. Whatever asset you’re buying - swap it at 1inch.com ======================================================== The CME is suing its own regulator. At stake is a single word: is a perpetual futures contract a swap, locked to institutional trading desks, or a future, open to any retail trader in the US? Cathy Yoon, General Counsel at Temporal, Tiffany J. Smith, Partner at WilmerHale, and Jake Chervinsky, CEO of Hyperliquid Policy Center, join Laura Shin at the Real World Assets Summit to make the case for futures. The CME was invited onto the panel to argue its side, but Yoon called their last-minute decision to bow out as "cowardice." They dig into the CFTC's recent approval of true perpetual futures for Coinbase and Kalshi, the running jurisdictional split between the CFTC and SEC, and Bloomberg's report that Hyperliquid is in talks to come onshore through Kraken's Bitnomial. Chervinsky argues Hyperliquid isn't an exchange at all, just neutral infrastructure any exchange could use. Yoon closes with a warning: most of Capitol Hill, she says, still doesn't understand there's a whole world running onchain. Host: Laura Shin, Host / Unchained Guests: Cathy Yoon - General Counsel of Temporal Tiffany J. Smith - Partner at WilmerHale and Co-Chair of its Blockchain & Cryptocurrency Working Group Jake Chervinsky - CEO of Hyperliquid Policy Center Timestamps ⚖️ 02:24 Why the CME is suing the CFTC over classifying perps as futures or swaps 🌍 13:00 Why RWA perps overtook crypto perps, and who ends up regulating them 📣 18:03 1inch: See how Aqua's shared liquidity platform puts idle capital to work at http://unchainedcrypto.com/go/1inch-yt 🌐 20:42 Is Hyperliquid an exchange or neutral infrastructure? Jake makes his case 🏛️ 26:10 If you were the regulator: how each panelist would design fair rules for perps Learn more about your ad choices. Visit megaphone.fm/adchoices
Transcript
Discussion (0)
But I do kind of go back to first principles and think about both Dodd-Franth, which created swaps and even futures were created for totally different products.
And so I do contain to worry about trying to strap on regulation that wasn't fit for purpose and sort of missing out on the risks here.
The SEC recently put out, let's call it reg crypto, and it talks about disclosures for crypto offerings or submit to investment contracts.
And what it does is very well is it asks questions that are sort of.
tailored to an actual crypto offering.
We need something similar when it's talking about perps,
making sure that we're not solely focusing on,
are they on an exchange,
but thinking about what they actually do
and how they're very good at,
they're very fundamentally different from swaps,
and they don't have the opacity
and those types of issues we had during Dodd-Frank,
but there could be other risks that we need to be on the lookout for
and regulation needs to try to capture.
Hi, all. Today we are replaying a panel
I moderated on Wednesday at the RWA summit in Brooklyn.
Titled, Are Perps Poking the Regulator Bear or Showing the Art of the Possible?
It featured Jake Shervinsky of the Hyper Liquid Policy Center, Tiffany Smith of Wilmer Hale, and Kathy Youen of Temporal.
Originally, CME, the elephant in the room, which is perceived to be trying to do things that are anti-competitive to Perps,
was also supposed to be represented on the panel, but they backed out last minute.
The panel had some spicy things to say about that.
Our discussion was extremely timely as the day before, news broke that hyperliquid was in talks with crack and parent company payword to bring hyperliquid onshore.
So without further ado, please enjoy this discussion.
This episode is brought to you by 1 inch Aqua, the shared liquidity layer from 1 inch.
Back multiple liquidity positions with one wallet balance and keep your tokens in your wallet until a swap fills.
See how it works at 1 inch.
dot com slash aqua.
Hi everyone. Thanks so much for coming to our panel.
Are perps poking the regulator bear or showing the art of the possible?
I'm here with Kathy Yun of Timporal, Tiffany Smith of Wilmer Hill, and Jake Shervinsky of the
Hyper Liquid Policy Center.
And we have a really spicy discussion on tap for you all because some of you may know
that this is an area that's under a lot of contention at the moment.
the CME is actually suing its regulator in the CFTC about perps that were approved for CalC
and what's at, you know, kind of the center of this all is how these should be defined.
CME contends that these threaten their long-dated futures.
They think that actually perps should be defined as swaps.
It's a whole, I know this sort of gets in the weeds, but I think there is something important
at the heart of this.
So Jake, why don't we start with you, do you?
to describe like what the conflict is about and you know why you think that definition is important?
So the key question really comes down to who will get access to this type of financial
instrument in the U.S. And the classification of a perpetual contract as either a swap or a future
dictates whether it is only an institutional product as swaps are generally speaking to oversimplify
a little bit, primarily an institutional product that cannot trade on a registered designated contract
market, whereas futures are a product that can be traded by a DCM for a retail audience.
And so we can talk more about the benefits of perpetuals, but my view and the view of the
Hyperliquid Policy Center is that they are an extraordinarily useful tool and a better derivative
in many cases for many users than David Futures or options and should be available to the
broadest number of people, end users and hedgers and speculators in the U.S.
that reason, they should be classified as futures. Furthermore, if you sort of run the legal
analysis on whether they should be classified one way or another, they do really fall more
into the bucket of futures. But this is the key issue here is who will have access to this
innovative financial product here in the U.S. And Tiffany, can you give more insight into, you
know, what those definitions mean and why it is that, or which one you think it probably falls
And two, Morph?
So I'm not going to end the controversy, but I'll give a couple of thoughts.
So first, I think when you think about perpetual futures and just how they are, if you think
about the definitions of swaps and futures, they have really had characteristics of both.
But I think the future is a better category for them, one, because they're standardized or not,
they're not bilateral contracts like most swaps are.
And I think, too, like the pricing mechanism is more simple.
similar to futures. But we're at the situation in part because of the regulation by enforcement
environment we had years ago. And so what happened was there were five different CFTC enforcement
actions where you had in the enforcement context, the CFTC took the position that perps
were spots. And because of that, some people in the industry sort of started to believe
that view. And so for the first time when you actually have not the enforcement arm, but a policy
setting the vision of the CFTC establishing how to view perps, they actually call it a
future. And so to the extent there is any type of confusion in the market, that's part of it.
And so that's, again, another example of what happens where you have regulation by enforcement.
You don't actually have the policies of visions establishing how to categorize these different
products.
Kathy, what about you? What's your opinion?
I mean, I'm obviously in the futures ham.
But I think the difference in that I think that's something that C&E seems to be missing the
point on or refuses to even see.
is we're talking about something very different
than what they're used to.
And when you are talking about
something more smart contract-based,
for me, I look at that as more being more venue-focused
than something that is more bilateral
that you would see in swaps.
And I think we are at a great time
where we have this technology,
where we have smart contract technology,
where you're able to deal with autonomous code,
and you, it's much more accessible to so many different people at this point.
And you don't have to be a sophisticated participant governed by some agency's rules at this point.
And so hopefully it's more of leaning more towards democratization of having access to these financial products.
And then maybe just looking at how those products are being accessible to the public,
as opposed to trying to figure out what has historically been done in the past?
Are there intermediaries who is taking the liability for these types of products?
I think with the advent of where things are going,
especially from a spot trading perspective for crypto,
there are a number of prop A amounts that are blowing up right now.
You have, they're trading for their own account.
You don't have counterparties.
you don't have other users, you're not risking other users money at this point.
You're just risking your own.
And so I think it's a different emphasis and just something different that we all should be thinking about.
Yeah, so let's talk about that because this is sort of like, you know, this moment where we have this entity that is very dominant in a space, CME.
and there's this new technology
that does things a completely different way.
And I saw Tiffany nodding her head
when Kathy was talking about
just the differences between on-sham trading,
you know, what does it mean when you're trading
with a smart contract versus,
or on a smart contract versus with intermediaries?
And, you know, we've had these existing regulations
that have applied in a completely different environment.
So I'm so curious to hear
how you think regulations should,
accommodate this new technology that really just does things in a completely different way from how
the regulations have from the from the set up that the regulations have applied to as far.
And either one of you.
So yeah, it's a great question.
And unfortunately, if you all had seen the plan for this panel before this week, we were
going to be accompanied by someone from the CME.
And I was very excited to hear their answer to this question.
So we'll have to do the best that we can having this conversation with.
without them. But I think in the first instance, it is important to separate the perpetual
future, a financial instrument, a new type of derivative, as Kathy was saying, from the venue where it
trades. And at this moment, the CFTC has authorized the trading of perpetual futures and has
classified them as futures for centralized exchanges. And the CFTC did that a couple of months ago
in two orders directed toward Coinbase and call sheet, allowing them to trade for the first time a
perpetual contract with Bitcoin as the underlying asset. And that has frankly nothing to do with
whether that perpetual will be traded on chain or using any new type of technology. And the
CME unfortunately disagreed even with that authorization, an authorization that would have allowed
it, the CME itself, to offer that exact same product and filed a lawsuit against the CFTC
saying both that the process that they used to come to that determination was flawed.
and also that the determination itself was substantively incorrect, that perpetuals are swaps rather than futures.
And so I think we first have to overcome this initial question, what is the classification of the derivative itself?
And then separate from that, we have to ask the question, once we have that classification, where will those contracts and every other type of derivative, dated futures and options and others, where will they be allowed to trade?
And so it's sort of a multi-step process of figuring out, can we have perps in the U.S.,
and then what kind of technology can we use in order to have them trading live with a retail or institutional audience.
Yeah, I mean, I'll add.
So the second part, like the second question there, the Kamai's Exchange Act, which is a thing from the securities regulations,
sort of assumes that for swaps and futures are traded on exchanges.
And so we think about Project Crypto, which Chair Atkins said the SEC announced, and later on, Chair Selleig sort of agreed to sort of sign on to that.
And thinking about markets moving on-chain, that sort of understands that with on-chain markets, you don't necessarily need an intermediary.
And so we were thinking about how these markets can actually work.
We have to look at what the regulations say and see whether or not they need to be sometimes exempt or sometimes revised,
reflect your reality of these markets because what has happened in restoring you see this with some of the regulations from the SEC.
If you take a regulation that's not fit for purpose, you sort of put it on a new novel product,
and results in they're not being a good fit from a compliance perspective.
It's both over-inclusive and that requires certain compliance parameters that don't make sense and under-inclusive
because it's not asking the right risk-based, smart contract-based types of questions.
And so I agree with Jake that's going to be a two-step multi-prong analysis and two questions to look at.
But I think we are actually moving towards on-chain markets,
but we're just in the very, very beginning stages of getting to that reality.
Yeah, I don't mean, I really wish the CME were here, but we can have fun without them.
I do think it's my hot take is it's a little bit cowardice that they couldn't show up and jam with us.
on this topic. I don't think we were particularly spicy on our prep call, but I do think there is,
you know, a fundamental difference with the way this technology is making new products
appear, how people are thinking about how we interact with new products and how we interact with
other users or investors in this space. And I think it's a little short-sighted of the CME to even
try to hold onto their current position based on things that have been going on with less than
stellar technology to begin with. And so we should be looking forward. So another reason that
perps have been such a hot topic this here is because, you know, so obviously crypto perps have been
popular in crypto for a long time. But we saw that real world asset perks really started to take
off, even on hyperliquid, you know, the volumes of real world assets would exceed, you know,
for instance, like Bitcoin perps and stuff. So this is clearly, I mean, I think this is why we're
discussing it here at the real world asset summit, but, you know, I'm curious to hear your thoughts
on whether or not crypto perps are like a fundamentally different product from these real world asset
perps or if you think they can be covered by the same rules. Well, I guess I'll start. I don't think
there's anything unique about the underlying asset of any derivative that should change how
the derivative is regulated. And I think it is absolutely true that one reason we're talking about
perpetuals now is because they have proven to be an extremely useful tool for hedgers and
speculators outside of the crypto markets. Granted, perpetuals were in some ways an innovation
of crypto because they became popular because of crypto exchanges offering them for the first time.
But perpetuals are in so many ways just else.
a better derivative for many use cases.
They don't have fragmented liquidity
across many expiration dates, so they have much deeper liquidity.
They're a much simpler instrument to use
because they very closely track the price
of the underlying assets, unlike a dated future
that has to converge over time or an auction,
which is quite difficult to price.
And these benefits have shown themselves
to be useful in markets for metals like silver and gold,
in markets for oil, as you mentioned,
and potentially many,
the other markets where continuous exposure or 24-7 trading nights and weekends is beneficial
in a way that traditional venues don't offer at this point. And the question isn't whether
the underlying asset is a digital asset or not. The question really is, from a regulatory
perspective, is the underlying asset a commodity or is it a security? And that begs the question
whether the CFTC or the SEC will regulate it. But otherwise, there really isn't any difference in
terms of the legal treatment. There is, however, a very important policy element to this,
which is that physical commodities, which have deliverable markets that affect global trade
in a very important way, have the potential to be much more affected by the rise of a brand new
type of financial instrument than digital assets. And so this is why the CFTC, in moving forward
with authorizing the trading of perpetuals, decided to start with perpetuals on digital assets,
and then evaluate other asset classes one by one to figure out if they allow the trading of,
for example, oil perpetuals, what impact will that have on the energy industry?
Or if they were to allow the trading of perpetuals on agricultural commodities, what effect
might that have on the food supply and other extraordinarily important sectors within the agriculture
industry? And from a policy perspective, totally appropriate for the CFTC to take these assets
one at a time and not move fast and break things where the global derivatives markets are
so critical to how we love our lives.
Yeah.
I mean, I'll just add.
So I agree with what Jake said.
I think we're thinking about categorizing these assets.
Like, we're using existing categories, right?
So futures.
So first off, the SEC and CFTC have sort of like two counterparts to both the futures regime
and the swap regime, right?
A future security future.
a swap security-based swap.
And so, and the future regime comes back from 2000 Commodities Modernization Act,
and then swaps come from 2010, right?
So again, you have these old categories that you're using for these newer assets.
And so maybe we can, as we're debating now,
you can go back and forth about how to categorize an asset as being a swap or a future.
But the point is that even if you try to fit into that category,
some people are going to need to be made because those categories were created in different contexts.
Another thing that sort of keep in mind is that, you know, as Jake alluded to, like, yes, like the perp started in the crypto markets, but as we're looking at RWA's and assets with underlying our securities, it's important to make sure that we're not taking, you know, two different types of views on the SEC and CFTC side.
And so some past enforcement actions, you had a CFTC take a view that one asset, it was a, both agencies brought enforcement actions.
CFTC said an asset was a swap.
SECC said it was a future, right?
And so with these harmonization efforts between the agencies, hopefully you won't go back to those days.
But it's just important that people think about the entire picture and realize that you have two different sets of assets that may go back and forth between two different regulatory regimes.
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Well, actually, so one thing, which I, excuse me, if I miss this,
but do you have an opinion on whether or not these should be regulated more by CFTC or SEC?
It's both.
It's going to be both, depending on what underlying is.
I think that the harmonization efforts between the agencies will help,
hopefully make compliance and a regulation run smoother, right?
So there's examples today where if you're a narrow-based index, you're under the SEC's regime.
And if you're a broad-based index, you're under the CFTC regime.
And one particular asset can sort of migrate between these two different regimes.
So hopefully with the harmonization, as we get more novel products that can move 24-7,
you can get some better coordination between the agency so that you have, like, one primary,
regulator and another one sort of like our secondary regulator and they're sharing information.
But I think there's going to be a place for for both agencies, especially with these different
types of products that are being developed. I totally agree. And I think there's a careful
line drawing exercise that the agencies are engaged in to figure out who regulates what. And some
of that is actually playing out in the event contract space, much more so than in the in the
perpetual space. Questions like if you have an event contract based on what price a stock will
be at a given time. Should the SEC regulate that as a security-based derivative? But then you might
have an event contract that resolves based on what a company's reported earnings are, or you might
have something that resolves based on what the output of the company is. And it's hard to draw the line
at what point that event contract is based on a security or not. And I think we'll see the same
type of thing play out in the perpetual space. But again, not an issue that's unique to perpetuals.
it applies for all derivatives and also not an issue that's unique to on-chain markets versus
traditional markets.
Okay.
Well, so now I want to ask about some news that broke yesterday.
Bloomberg reported that Hyperliquid is talking with Payword, which is the parent company of Pracken,
about coming on shore through bit no meal, which Pracken acquired.
And I mean, so, Jake, I don't know what you can say.
But I'm so curious about what this would look like.
I'm assuming, obviously, there's probably KYC involved, but I just imagine it also fragments
liquidity, so I'm kind of wondering how that all looks. I'm even wondering, you know, how does
HIP3 kind of, you know, concepts kind of play in here and how is that regulated? So I don't
know how much you can say, but if you want to sort of describe, you know, what that might look
like, you don't have to reveal anything. Well, I'll start by saying two things. One is,
the Hyperliquid policy center, so we're independent of the entities that were cited in a report,
and also I have the information you have because, you know, I got this the same way that you do.
But what I can say from the perspective of what it means to onshore hyperliquid,
and I think this also applies for any market that will trade, settle and clear on any public blockchain.
What we have to do is listen carefully to what the regulators are telling us,
and also without having to get into any details of our own engagement with the regulators,
when you listen to Chairman CLE talk about his effort to bring on-chain markets into the United States,
you'll hear him say that decentralization doesn't really have a place in the federal commodities laws.
There's not a concept of defy or decentralized finance that's baked into the Commodity Exchange Act.
The way that the CFTC's framework operates is that the CFTC's framework operates is that the CFTC's,
CFTC regulates registrants, that is to say, registered exchanges, DCMs, and clearing houses, DCOs, which have customer funds sent to them through brokers, either Futures Commission merchants or introducing brokers.
And that is very much the regulatory framework that I would expect the CFTC to apply in this case.
When it comes to something like hyperliquid, a public blockchain, where these types of financial instruments and many others can trade, I think it is a mistake.
to think of hyperliquid as an exchange. Hyperliquid is not an exchange. Hyperliquid is
infrastructure that any exchange can use in order to offer the best product or
service to their customers. So in my view, if any other exchange were in the room, my
message to them would be you should be using hyperliquid because it will enable you
to offer a better product or service to your customer. And the work that needs to be
done at the agencies, both the CFTC and the SECC, is to figure out how can
the underlying policy goals of the regulation in the CFTC context, the core principles that
a registered exchange must comply with, how can those core principles be satisfied where the
exchange is offering a product using neutral infrastructure that they themselves do not
control and also no single third party controls? And that I think is the sort of devil in the
details issue that the agencies are working through now. Yeah. And I mean, and,
The interesting thing is that you have so many projects right now who see public blockchains, rightly so, as communication layers, and that you are building different products and different applications on top of this.
And so if you think of the hyperliquids and salons of the world as just pure communication lines, it's inappropriate to think of them as exchanges.
it's inappropriate to think that a smart contract is an exchange because there is no control
as long as it's done correctly there should be no control and that you have this autonomous
thing that people are able to interact with and they're able to determine their own personal
risk regulation has always existed in order to protect consumers or to
protect participants from outsize or ridiculous losses. I think that the thinking has to change a
little bit when you're now dealing with engineers or projects who are now using this technology
to create things in order to meet the need of lots of different people. And how do we regulate
something where you don't have someone standing your middle and custodying or just being an
intermediary in any way. To Bled, do you want to add anything on? I mean, not much. I think I both
covered it well. I think sort of like I was alluding to earlier, when you have, you know,
software or not people, I think the risks can be different. And so that's why it's important to
sort of understand the distinctions and making sure that whatever regulation we had is actually, like,
you know, purpose built for whatever the application is, whatever, whatever we're talking about and not
just sort of like taking what we've always had and just putting it into putting on over top of a brand new
software and expecting it to work and capture all the risks.
Right. So for our final question, this is maybe a big question. But, you know, I want to go back
to how we started, which is we're in this moment where, you know, we have this incumbent.
We have this new technology. I think some people in the crypto industry perceive that the
incumbent is trying to do things that are anti-competition.
and, you know, the reason that I am interested in crypto is, you know, I do think it is a superior
technology. I'm sure probably there's kind of pros and cons, but at least on efficiency,
we can probably say that. So if you were in the regulator seat, I would be so interested
to hear how you would design fair regulations for this moment. And I know, like I said,
It's a big question, but even in broad strokes, if each of you want to take a stab at that.
All right. Well, I guess I'll answer in two parts. I'll start by saying I think that in a dream world,
many of us who have worked in the crypto industry have viewed disintermediation as the goal of the new
financial system that we've wanted to build, viewing intermediaries as introducing risk into the
financial system and viewing on-chain markets as a way to address that risk through software
rather than through regulation. And I do think that there are some merits to that argument.
That said, as I mentioned, in the world that we live in, and I do think that it's important for us
to approach this question from a pragmatic perspective, the statute, the Commodity Exchange Act
that the CFTC enforces doesn't really consider that concept of disintermediate.
So what we would need if we wanted to get to that world where there are no exchanges because
everyone is just trading directly on chain without having a broker and without having to rely on
a clearinghouse, etc.
Probably we would need Congress to step in and decide to amend the Commodity Exchange Act.
And I hate to break it to anyone who thinks that that's on the table.
That's not happening anytime soon.
There are also plenty of, I think, very interesting legal theories as to why the CFTC has
exemptive authority that would allow it to look at the tax tax tax tax.
and decide that there are no intermediaries or should not have to be any intermediaries.
But even that, I think, is a very difficult argument to make because the Commodity Exchange
Act, at its core, mandates that futures trade on an exchange. So even if you say there are
no intermediaries here, all you've done is establish that there's no intermediary through which
an American can lawfully access the product. So if we're going to be pragmatic about this,
We have to take the law as it is.
And again, we have to listen to the regulators.
What the regulators will say over and over is that they are taking a crawl, walk, run approach
to bringing on-chain markets into the U.S.
and moving the financial system onto public blockchains.
And what that means is it may not be satisfactory to many who have more radical ideas
about how we should reshape global finance,
but it is much more likely that we will start by having these products,
perpetual futures offered through the regulatory framework that the agency administers,
and we will see those intermediaries authorized to use better technology in order to
improve the product and service that they offer. And that's the path that I think we'll be taking
in the foreseeable future. Yeah. I mean, I agree. That is the path that we're going to see
in a foreseeable future. But I do kind of go back to first principles and think about both
Dodd-Franth, which created swaps and even futures were created for totally different products.
And so I do contain to worry about trying to strap on regulation that wasn't fit for
purpose and sort of missing out on the risks here, right?
And so sort of like the SEC recently put out, let's call it red crypto, and it talks about
disclosures for crypto offerings or submit to investment contracts.
And what it does is very well is it asks questions that are sort of
tailored to an actual crypto offering, we need something similar when it's talking about perps,
making sure that we're not solely focusing on, are they on an exchange, but thinking about what
they actually do and how they're very good at, you know, they're very fundamentally different
from swaps and they don't have the opacity and those types of issues we had during Dodd-Frank,
but there could be other risks that we need to be on the lookout for and regulation needs to try
to capture. I hate your outlined, realistic view of how things are going. I mean, it's my experience of
going to the Hill and speaking with staffers and members of Congress and different agencies is that
no one comprehends that there is a whole world on-chain. They only think about things from an
on-ramp and off-ramp perspective, and they have no idea that you can access the on-chain world
on-chain activity without going through those on-ramps or other intermediaries.
I'm not saying that there should be no regulation.
There might need to be something.
But I think the concerns that regulators have had historically for these more traditional
products don't necessarily exist for a lot of the new innovative products that are coming
to the market.
It would be a shame for people in the U.S. to be able to miss out on something.
it would be a shame for U.S. traders who are engaged, who will always be engaged in speculative
activities to prevent them from having access to this.
Yeah, yeah, I'm sure a lot of people in here would agree with that.
Well, thank you to our panelists for having a great discussion.
I really enjoyed, and hopefully the rest of you did as well.
Nothing you hear on Unchained is investment advice.
This show is for informational and entertainment purposes only,
and my guest and I may hold assets discussed on the show.
For war disclosures, visit UnchainedCripto.com.
