As per the latest FINMA guidance, ICOs are not specifically regulated in Switzerland. According to the guidance, it is likely that an ICO specific regulation is not to be announced in the near future. FINMA highlights regulations hurdles that need to be assessed in the context on an ICO. Given the large diversity in the variety, structures and features of ICOs, FINMA is concluded that a generic ICO regulation is unlikely to result in a more efficient regulation and a case by case analysis of applicable laws is required, in particular in the following areas[1]:
Blockchain operations are also subject to criminal laws, in particular provisions governing acts aimed at frustrating the identification of the origin, the tracing or the forfeiture of assets which are known to be, or which must be assumed to be, of criminal origin (Art. 305bis Swiss Criminal Code (SCC). Financial instruments routed through blockchain operations are, however, also protected against criminal behaviour against assets in the form of fraud (Art. 146 SCC) or embezzlement (Art. 138 SCC). Data with which blockchain operations are dealing are protected by many different criminal provisions, such as those governing illicit data gathering (Art. 143 SCC), data corruption (Art. 144bis SCC) and fraudulent misuse of data systems (Art. 147 SCC) [2].
Banks are defined as entities that are active mainly in the area of finance and in particular, but in a non-exclusive under-standing, those who accept deposits from the public on a professional basis or solicit these publicly to finance in any way, for their own account, an undefined number of unrelated persons or enterprises (ie, more than 20 clients), with which they form no economic unit, or who refinance themselves to a substantial degree from third parties to provide any form of financing for their own account to an undefined number of unrelated persons and institutions. A FinTech company (e.g. companies that offer financial services based on blockchain technology, crowdfunding, mobile payment applications or robo advice) providing bitcoin wallets to its customers which allow repayment in fiat money (ie, money governed by regulation or law) would fall under banking regulation and may require a banking license.
Switzerland has introduced some initiatives to deregulate FinTech companies and help increase innovation, which include [3][4]:
Detailed information on these regulations can be found on Schellenberg Wittmer and The Federal Department of Finance. Information on regulations related to tokens can be found on FRORIEP.
[1] Information quoted from Pestalozzi Attorneys at Law
[2] Information quoted from PWC Switzerland
[3] Information quoted from Walderwyss attorney at law newsletter 118
[4] Information quoted from Schellenberg Wittmer April 2017 newsletter