In the event of any secondary market trading activity with tokens, their classification in the moment of the relevant trading activity must be taken into account.
However, the initial classification may change post-ICO. For the purpose of assessing the regulatory implications of an ICO, the moment of the token issuance is relevant. FINMA acknowledges that a token's classification may change over time. These hybrid tokens must comply cumulatively with the regulatory requirements applicable to each relevant token category. asset tokens, which represent an asset, for instance a debt or equity claim against the issuer or a third party, or a right in an underlying asset.įINMA has further clarified that tokens may also take a hybrid form, including elements of more than one of these categories.utility tokens, which provide rights to access or use a digital application or service, provided that the application or service is already operational at the time of the token sale and.payment tokens or cryptocurrencies, which are intended only as means of payment and that do not give rise to any claims against the issuer.
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2 In the ICO Guidelines, FINMA clarifies how to classify cryptocurrencies and other coins or tokens (collectively with cryptocurrencies, tokens) or other assets registered on distributed ledgers under Swiss law.Īccording to the ICO Guidelines, FINMA distinguishes the following categories of tokens: On 16 February 2018, FINMA published guidance on how to apply Swiss financial markets laws in its guidelines regarding the regulatory framework for ICOs (the ICO Guidelines). FINMA adheres to this principle at present when applying Swiss financial market laws to cryptoassets and blockchain-based applications. The Swiss Financial Market Supervisory Authority (FINMA) has repeatedly stated that it will not distinguish between different technologies used for the same activity: that is, it will apply the principle of 'same business, same rules' to any kind of new technology. Moreover, additional segregation rights for cryptoassets held in custody by a third party (e.g., by a wallet provider) have been introduced in case of bankruptcy of the third party. In addition, a new type of licence category for trading venues where DLT rights could be traded has been introduced into Swiss law. DLT rights should be exclusively transferable through the blockchain. In particular, the DLT Act introduced DLT rights as the digital alternative to certificated securities as new class of assets. Switzerland has now improved its regulatory framework for tokens representing rights, such as asset tokens and utility tokens representing claims against the issuer or a third party, by adopting the Federal Act on the Adaptation of Federal Law to Developments in Distributed Ledger Technology (the DLT Act), which introduced various amendments to Swiss laws to take account of the potential offered by distributed ledger technology (DLT), which entered into force in February and August 2021.
For cryptocurrencies, the regulatory framework allowing the issuance and trading of these assets has been in place for a few years. Switzerland has a favourable and attractive legal framework regarding cryptoassets, although it does not have a separate legal framework for them. It is an important jurisdiction for initial coin offerings (ICOs) and securities token offerings (STOs), and it offers a well-developed infrastructure and a sound legal framework for companies that are active in the crypto space. While it is difficult to attribute a rank to Switzerland in the fast-moving global crypto community, Switzerland has taken the role of a pioneer in this area. Switzerland is the home of the crypto valley in Zug, near Zurich, and has an active community of enterprises working in the crypto space.
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