Bitcoin ETF applications: Who is filing and when the SEC may decide

Despite BlackRock’s application for a Bitcoin spot ETF, its approval remains uncertain, with the SEC favoring another futures-based Ether ETF.

The race to list the first spot-traded Bitcoin (BTC) exchange-traded fund (ETF) in the United States has seen the entrance of major financial institutions like BlackRock, Fidelity and VanEck. 

While the U.S. Securities and Exchange Commission (SEC) first approved a Bitcoin-linked Futures ETF in October 2021, the current filings are for spot Bitcoin ETFs. Following Grayscale’s recent legal victory against the SEC’s review of its spot Bitcoin ETF proposal, many now believe approval of the investment funds is more likely.

The interest of BlackRock — the world’s largest asset manager with over $8 trillion worth of assets under management — prompted several other institutions to refile for a spot Bitcoin ETF.

Most of these asset managers had to either withdraw their spot Bitcoin ETF filings or face rejection due to the SEC’s reservations concerning a spot-derived ETF. Here are the key Bitcoin ETF applicants:

• BlackRock: BlackRock filed for a spot Bitcoin ETF on June 15, with Coinbase as the crypto custodian and spot market data provider and BNY Mellon as its cash custodian. The filing shocked the crypto and traditional finance world, and the firm’s CEO, Larry Fink, had previously called BTC an index for money laundering. On July 15, the SEC formally accepted BlackRock’s spot Bitcoin ETF application for review. 
• WisdomTree: The New York-based asset manager first filed for a spot Bitcoin ETF in the U.S. on Dec. 8, 2021, which was rejected by the SEC in 2022. The agency claimed the ETF fell short in terms of investor protection; however, with BlackRock’s entry in the spot Bitcoin ETF race, WisdomTree refiled with the SEC on July 19. 
• Valkyrie Investments: Asset management firm Valkyrie filed its first spot Bitcoin ETF application in January 2021 but faced rejection from the SEC, like many other asset managers. However, with the rejuvenated enthusiasm around a spot Bitcoin ETF, Valkyrie refiled its application on June 21. The ETF would refer to the Chicago Mercantile Exchange’s (CME) reference price for Bitcoin and trade on NYSE Arca, with Xapo as the crypto custodian.
• ARK Invest: ARK filed an application for its ARK 21Shares Bitcoin ETF in June 2021. ARK Invest has partnered with Swiss-based ETF provider 21Shares to offer the fund, and it will launch on the Chicago Board Options Exchange (Cboe) BZX Exchange under the ticker symbol ARKB if approved.
• VanEck: VanEck is one of the earliest Bitcoin ETF applicants, making its first filing in 2018. The asset manager withdrew its application in September 2019 and made a second attempt with the SEC in December 2020, with shares of the trust set to trade on the Cboe BZX Exchange. The firm filed a new application in July 2023.
• Fidelity/Wise Origin: Fidelity Investments first applied for a spot Bitcoin ETF in 2021 and refiled for its Wise Origin Bitcoin Trust on July 19, 2023. The Wise Origin Bitcoin Trust would see Fidelity Service Company serving as the administrator while Fidelity Digital Assets will act as the BTC custodian.
• Invesco Galaxy Bitcoin ETF: Invesco first filed an application for its Invesco Galaxy Bitcoin ETF jointly with Galaxy Digital on Sept. 22, 2021. The joint venture refiled its application in July. The joint Bitcoin ETF would be “physically backed” by Bitcoin, with Invesco Capital Management as the sponsor.
• Bitwise: Bitwise first filed for a spot Bitcoin ETF in October 2021, only to face rejection from the SEC. The asset manager refiled its application in August 2023.
• GlobalX: Fund manager GlobalX joined the ETF race in 2021, along with several other financial giants, when it filed for a spot Bitcoin ETF. The fund manager refiled its application in August 2023, becoming the ninth applicant. The firm named Coinbase as its surveillance-sharing partner.

In light of Grayscale’s recent legal victory and the wave of renewed applications, ETF analysts at Bloomberg have raised their expected approval chances for a spot Bitcoin ETF to 75% from 65%.

NEW: @JSeyff & I are upping our odds to 75% of spot bitcoin ETFs launching this yr (95% by end of ’24). While we factored Grayscale win into our prev 65% odds, the unanimity & decisiveness of ruling was beyond expectations and leaves SEC w “very little wiggle room” via @NYCStein pic.twitter.com/IyEGmWjuHa

— Eric Balchunas (@EricBalchunas) August 30, 2023

As expected, the SEC has delayed its decision on all seven applicants. Analysts had predicted that the SEC may not decide on an ETF until early 2024 when the final deadlines approach (listed below). 

John Glover, chief investment officer at crypto lending platform Ledn, told Cointelegraph that the ARK 21Shares “verdict slated for Jan. 10 will be the first real indicator as to whether the SEC is ready to start approving these types of applications. The final deadline is up at that point, and a decision will need to be made one way or another.”

Why has the SEC rejected spot Bitcoin ETFs in the past?

In its earlier rejection of VanEck’s spot Bitcoin ETF, the SEC claimed that the Bitcoin market is not big or mature enough to sustain ETF market demand. The commission also said the price volatility and inadequate level of trading surveillance could potentially leave the market prone to fraud and manipulation. 

However, with the entrance of BlackRock, market pundits have started to believe that the chances of a spot Bitcoin ETF being approved are good.

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One of the major factors preventing a spot ETF from getting approved is the nature of the fund.

A futures ETF is based on futures contracts rather than the digital asset itself, which is an important distinction. The futures markets are already heavily regulated to prevent market manipulation, thus making it easier for the SEC to approve such ETFs.

At the heart of these spot ETF rejections is the issuer’s requirement to incorporate a “surveillance-sharing agreement” with a sufficiently large and regulated Bitcoin-related market. Such agreements are integral in ensuring that the SEC can conduct exhaustive investigations in the event of any market irregularities.

A Bitfinex Alpha analyst told Cointelegraph that one of the vital concerns behind the rejection of spot Bitcoin ETFs is the regulator’s ability to track and continuously ensure asset safety and custody. However, for that to happen, the U.S. needs more regulatory and legal infrastructure before the “SEC or other involved parties would be comfortable in allowing an ETF provider to handle it.”

“If not, then the entire purpose of an ETF (which is to circumvent dealing with digital asset wallets or crypto exchanges) is defeated. Thus, it would not be fair to say that spot Bitcoin ETFs do not propose manipulation concerns in the SEC’s eyes. The ProShares Bitcoin ETF disapproval dated back to 2018 clarifies this very point. Another concern with regard to the document’s literature was the ability of the Bitcoin market to handle the volume that would be brought in via the introduction of a spot ETF,” the analyst added.

The SEC is mainly concerned about the robustness of the trading venues. The regulator oversees futures exchanges like the CME and the Cboe, and any futures ETFs will be restricted to only trading on those regulated venues. Whereas there are no SEC-regulated spot exchanges.

However, not everyone agrees with the SEC’s assumptions about the vulnerabilities of the spot crypto ETF market. James Koutoulas, the founder of a futures-focused hedge fund Typhon, told Cointelegraph:

“I can attest that the crypto futures are far inferior to the spot in terms of tracking error. The concept that a U.S. regulator can provide adequate ‘surveillance’ against market manipulation on a global 12-figure market is delusional. So, honestly, it probably comes down to passing the buck to the CFTC rather than retaining accountability. Given the SEC has an ‘investor protection’ mandate.”

He added that by continuing to reject the simplest products like a BTC ETF, the ”SEC keeps pushing demand for crypto offshore and unregulated players. While a BTC ETF may not be perfect, it is much safer than buying BTC with Gensler’s family friend SBF [Sam Bankman-Fried] at FTX.”

Richard Gardener, CEO of tech infrastructure firm Modulus, believes futures ETFs have long been seen as more palatable for regulators and that the decision over a spot ETF is a matter of when not if.

He told Cointelegraph that a spot BTC ETF is “coming, sooner rather than later, and the heavy investment from major players like BlackRock and Fidelity signal this. As long as the major players are in the hunt, the industry is seen as viable in the long term, despite any short-term setbacks. If the SEC continues to refuse to act, politicians will be forced to act and develop their own answer to the crypto dilemma.”

Ether futures ETF have more chances of approval

While crypto enthusiasts would prefer to see spot ETFs, which would legitimize crypto as an asset class, U.S. regulators seem more likely to support futures ETFs.

Bloomberg analysts have predicted that the chances of approval for an Ether (ETH) futures-derived ETF are over 90%, with nearly a dozen institutions lined up for approval.

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Reports in financial media suggested a high possibility of the SEC approving an Ether futures-based ETF as soon as October.

This not surprising to us, we had said they would approve Ether Futures early on in race. Nice to be validated. Now what does it mean for spot? Hard to say beyond it shows that their views/policy/tolerance can change. https://t.co/JXCxNUpj2U

— Eric Balchunas (@EricBalchunas) August 17, 2023

Ken Timsit, managing director at blockchain startup accelerator Cronos Labs, told Cointelegraph that the “thesis in favor of futures is that futures would enable investors to send signals about the price evolutions expected by the market, which in turn would help to dampen the volatility of Bitcoin and Ethereum price and counterbalance the large price swings that we have seen recently.”

Doug Schwenk, CEO of Digital Asset Research, told Cointelegraph that the “near-term psychological impact would most likely give a boost to crypto markets as another proof point that regulators remain open to evolving the listed space and continued hope for the elusive spot ETF.”