SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin
10.4 Regulation of “Issuers” of Blockchain Assets Which rules apply to issuing blockchain assets pri - marily depends on their clarifications (see 10.3 Clas- sification of Blockchain Assets ). In addition to the general categorisation, specific rules apply to issuing stablecoins (see 10.13 Stablecoins ). Regarding traditional assets including securities, Swiss law allows for their direct tokenisation on the blockchain and has amended its laws to provide legal certainty for the transfer of such assets (see 10.2 Local Regulators’ Approach to Blockchain ). 10.5 Regulation of Blockchain Asset Trading Platforms Concerning the regulation of blockchain asset trad - ing platforms, see 10.3 Classification of Blockchain Assets . 10.6 Staking FINMA issued new guidelines in 2023 setting out how they treat staking in their practice. On the one hand, FINMA set out the requirements for licensed institu - tions offering staking while keeping the clients’ tokens off the institution’s balance sheet. On the other hand, FINMA set out that staking may also be offered by non-licensed institutions, provided that the assets are not in collective custody (which would, however, customarily be the case in case of so-called staking pools) and that AML rules are complied with. FINMA also pointed out that certain legal uncertain - ties remain, in particular as regards bankruptcy laws. 10.7 Crypto-Related Lending There are no specific laws on crypto-related lending. Therefore, the “normal” financial services regulation applies, including the CCA (see 4.1 Differences in the Business or Regulation of Fiat Currency Loans Pro- vided to Different Entities ). However, note that lend - ing itself is not an activity that would require a licence by FINMA, unless the institution takes on deposits for its lending activities, in which case a full-fledged bank - ing licence under the Banking Act would be required.
and limiting risks of misuse entered into force. In a nutshell, the legislative amendments include: • a civil law change aimed at increasing legal cer - tainty in the transfer of DLT-based assets; • the possibility of segregation of crypto-based assets in the event of bankruptcy; and • a new authorisation category, called DLT trading facilities, where such facilities may provide services in the areas of trading, clearing, settlement and custody with DLT-based assets (see 6.1 Permissi- ble Trading Platforms ). Overall, these legislative amendments increased mar - ket access for fintech companies in the DLT/block - chain field by improving legal certainty and removing certain regulatory barriers. 10.3 Classification of Blockchain Assets FINMA guidelines define three types of token. • Payment tokens are synonymous with cryptocur - rencies and offer no further functions or links to projects. They may, in some cases, only gain the necessary functionality and become accepted as a means of payment over a period of time – FINMA requires compliance with AML regulations but does not treat such tokens as securities. • Utility tokens are tokens that are intended to pro - vide access to a digital functionality or a service; they do not qualify as securities, unless they func - tion, at least partially, as an investment in econom - ic terms. • Asset tokens represent assets such as participa - tion in real physical assets, companies, earning streams or an entitlement to dividends or interest payments. Their economic function is, depend - ent on the terms, analogous to equities, bonds or derivatives – FINMA generally considers asset tokens as securities. Other authorities (eg, tax authorities) use alternative classifications that are suited to the particular circum - stances they are facing.
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