Fintech 2025

SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin

by such NFT (if any). To classify an NFT as a pay - ment, utility or asset token, and to determine the regulatory consequences (see 2.2 Regulatory Regime and 10.3 Classification of Blockchain Assets ), it is therefore necessary to identify the rights it represents. As a rule of thumb, NFT pro - jects where each NFT is actually unique and not fungible would not trigger licensing requirements in Switzerland.

not been fully met and that the next assessment will be performed by the end of 2025. Given the importance of digital transformation for banks and the large size of Switzerland’s established financial sector, fintech organisa - tions specialising in banking infrastructure have access to a large pool of potential customers. The need to meet customer expectations and deliver financial benefits (in terms of increased revenue and reduced operational costs) has accelerated the adoption of open banking solu - tions, including those based on bank as a plat - form (BaaP). 11.2 Concerns Raised by Open Banking Open banking raises several concerns in areas such as data protection, IT security and Swiss banking secrecy. The success of open banking in Switzerland will depend heavily on providing transparent information to clients, obtaining the necessary consents and waivers and adhering to the highest standards of IT security. The slow adoption of open banking in Switzerland may be due to Swiss banking secrecy and the lack of a common standard for open banking, despite an increasing number of open banking initiatives from private actors.

11. Open Banking 11.1 Regulation of Open Banking

Swiss banks have adopted the open banking concept and are implementing innovative busi - ness models, particularly in relation to banking infrastructure. This infrastructure may include open banking interfaces (application program - ming interfaces; APIs), identity and security management systems, information and trans - action platforms, finance management systems and financial compliance systems. In May 2023, a group of approximately 40 banks signed a memorandum of understanding on multibanking to foster the adoption of open banking with the goal of enabling initial multibanking offerings for individuals by mid-2025 (memorandum of under - standing; MoU). In particular, the MoU aims to improve interoperability and data exchanges between banks, fintechs and other financial institutions, thereby providing customers with a comprehensive overview of their finances. Currently, there is no specific legislation gov - erning open banking in Switzerland (unlike, for example, in the EU). However, the Federal Coun - cil set targets for the adoption of open banking in December 2022 and continuously monitors the progress and the eventual need for specific legislation. In its most recent assessment in June 2024, it concluded that the targets have

12. Fraud 12.1 Elements of Fraud

Under Swiss law, the concept of fraud is pri - marily understood in a criminal context as an offence punishable under the Swiss Criminal Code (SCC), with criminal liability also being applicable to corporations under certain condi - tions. To qualify as an offence of fraud under the SCC, the perpetrator must:

826 CHAMBERS.COM