SWITZERLAND Law and Practice Contributed by: Oliver Widmer and Niku Gholamalizadeh, Pestalozzi
cumstances, unjust enrichment. Such non contractual claims are subject to stricter requirements, notably the need to establish an unlawful act, fault, damage and a causal link, and they often face significant hurdles in identifying a legally responsible party where control is diffuse or anonymous.
antees as an alternative to obtaining a banking licence – including that each customer must have a direct claim against the guaranteeing bank and that the guarantee must cover all public deposits at all times. 6.2.3 Backing Assets FINMA has issued minimum requirements for issu- ers using bank default guarantees to avoid a banking licence. These require that: • each customer has a direct claim against the guar- anteeing bank; • the guarantee covers all public deposits including any interest earned; • total deposits never exceed the guarantee limit, and • the guarantee allows for uncomplicated and rapid enforcement by depositors. FINMA has also noted that paying interest on stable- coin deposits increases the risk of triggering banking regulation. 6.2.4 Special Considerations Switzerland does not have a specific systemic risk framework for stablecoins. 7. Tokenisation and Real-World Assets 7.1 Treatment Switzerland applies its technology-neutral approach to tokenised assets, meaning they are regulated in the same way as their non-blockchain equivalents, based on their economic function. Asset tokens represent- ing debt or equity claims are treated as securities and subject to the same rules as traditional securities. The 2021 DLT Act introduced ledger-based securities as an explicit legal category, allowing rights to be issued, transferred and held on a blockchain while remaining subject to the same regulatory framework as conven- tional securities. The SDX is a practical example of this approach in action – operating as a fully regulated financial market infrastructure for digital assets under the same frame- work as traditional exchanges and central securities depositories.
6. Payments and Stablecoins 6.1 Payments
In Switzerland, payments for goods and services made with cryptocurrencies are generally permitted, and there are no specific cryptocurrency-related limits. For such payments, the general principles of Swiss civil law apply, notably contract law. Therefore, the limitations that do apply are to be found in the CO, which sets out the material and formal requirements for the valid entry into and performance of agreements such as purchase agreements, service agreements and employment agreements. 6.2 Stablecoins 6.2.1 Fiat Currency and Algorithmic Stablecoins Switzerland does not have specific stablecoin leg- islation, but FINMA distinguishes between different stabilisation mechanisms in its supervisory practice. Stablecoins backed by fiat currency deposits with a fixed redemption right may trigger banking regulation, and if they also qualify as a payment system of sig- nificant importance, the FMIA may additionally apply. Algorithmic stablecoins, where stabilisation depends on a basket of currencies or commodities managed by the operator, may be classified as collective invest- ment schemes. In both cases, FINMA considers AML obligations to be “almost always” applicable. 6.2.2 Stablecoin Regulation There is no bespoke stablecoin framework in Swit- zerland, existing financial market laws are applied on a technology-neutral, substance-over-form basis. Depending on the project structure, stablecoin issu- ers may fall under banking regulation, financial market infrastructure regulation, collective investment schemes regulation and/or AML obligations. FINMA has issued specific guidance on stablecoin projects, notably setting minimum requirements for the use of bank default guar-
636 CHAMBERS.COM
Powered by FlippingBook