SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin
unless they function, at least partially, as an investment in economic terms. • Asset tokens represent assets such as participation in real physical assets, com - panies, earning streams or an entitlement to dividends or interest payments. Their eco - nomic function is, dependent on the terms, analogous to equities, bonds or derivatives – FINMA generally considers asset tokens as securities. FINMA has recently issued separate guidelines on how they treat stablecoins under Swiss law, it being understood that stablecoins are a sub - group of payment tokens. Other authorities (eg, tax authorities) use alterna - tive classifications that are suited to the particu - Concerning the regulation of “issuers” of block - chain assets, see 10.3 Classification of Block - chain Assets . 10.5 Regulation of Blockchain Asset Trading Platforms Concerning the regulation of blockchain asset trading 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 institutions offering staking while keep - ing the clients’ tokens off the institution’s bal - ance 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, cus - lar circumstances they are facing. 10.4 Regulation of “Issuers” of Blockchain Assets
tomarily be the case in case of so-called staking pools) and that AML rules are complied with. FINMA also pointed out that certain legal uncer - tainties remain, in particular as regards bank - ruptcy laws. 10.7 Crypto-Related Lending There are no specific laws on crypto-related lending. Therefore, the “normal” financial ser - vices regulation applies, including the CCA (see 4.1 Differences in the Business or Regulation of Fiat Currency Loans Provided to Different Entities ). However, note that lending 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 licence under the Banking Act (ie, a fintech licence or a full-fledged banking licence) would be required. 10.8 Cryptocurrency Derivatives As the Swiss financial market law is generally technology-neutral, cryptocurrency derivatives are regulated as derivatives under the applica - ble legislation, in particular the FMIA and FinSA. 10.9 Decentralised Finance (DeFi) No specific rules on decentralised finance (DeFi) are in place. FINMA, according to its annual report, applies the existing financial market leg - islation, including any licensing requirements, in a technology-neutral way, including to DeFi projects. As a rule of thumb, truly decentralised projects would typically not trigger licensing requirements in Switzerland, whereas for projects where an individual or legal entity in Switzerland either provides financial services in relation to such DeFi project or actually controls the underlying assets or even the DeFi project itself (eg, by way of governance tokens), licensing requirements
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