Practical need for alternatives to cash payment in crypto and blockchain companies


Every time a stock corporation or a limited liability company(1) is incorporated or increases its capital, the subscriber incurs a liability to pay. The subscription of future shares, namely the unconditional obligation to make a contribution corresponding to the issue amount, gives rise to this debt, and the subscriber fulfils it by placing the promised contribution at the free disposal of the company. The future shareholder can fulfil the payment obligation usually by way of cash payment – namely by placing the promised sum of money in Swiss francs or a foreign currency(2) into a capital contribution account at a Swiss bank within the meaning of article 3 et seq of the Federal Law on Banks and Savings Banks (BankG). This process blocks the deposited amount until the formation or capital increase transaction is registered at the Commercial Register; then the amount is paid out to an operational business account of the company. From that moment on, the responsibility (under civil and criminal law) for the use of the share capital, exclusively for corporate purposes, lies with the board of directors of the company.

The subscriber can also fulfil their obligation to pay by means of a contribution in kind. In this case, the incorporation or capital increase is referred to as "qualified". The subscriber will do so particularly if either cash is not to be used for the payment or (as in connection with companies active in the crypto and blockchain sector) there is a practical need for alternatives to cash payment.

This article is part of a series on cryptocurrencies as contribution in kind for foundations and capital increases.

Practical need for alternatives to cash payment in crypto and blockchain companies

Capital contribution account with institution subject to BankG
The Swiss Code of Obligations (CO) requires the deposit of the payment obligation into a capital contribution account at an institution subject to the Banking Act.(3) Deposits into a capital contribution account at a bank abroad are thus excluded. The future shareholder is subsequently dependent on the positive decision of the Swiss branch of a bank when making the payment.

Since the start of the blockchain wave in Switzerland, the regulatory pressure on Swiss banks has grown steadily, as the money laundering risk for companies operating in this area is considered to be particularly high internationally. As expected, the legislature has set the audit obligations of Swiss financial institutions high and made them even stricter. The result is an increasingly stringent anti-money laundering (AML) and know-your-customer (KYC) practice of Swiss banks,(4) partly shaped by due diligence rules codified within the industry,(5) accompanied by an increasing standardisation of the account opening process at central departments of the companies – usually via online onboarding with verification of the account opener's personal data through external service providers. As a rule, this leads to extensive requests for information on the part of the banks, and in many cases also to a refusal to open the capital contribution account legally required for the formation or capital increase as soon as the company purpose is even remotely related to blockchain technology.

The banks' requirements are even more far-reaching when opening an operational bank account, without which a company is effectively incapable of acting. In consulting practice, the opening of operational accounts abroad, for example with financial institutions in Great Britain and the Baltic States, has proven to be a successful alternative, which in some cases also offers account management in Swiss francs. The management of an operational account abroad is permitted by law. The transfer of the share capital paid into the capital contribution account to a foreign account, even one in a foreign currency, is regularly accepted by Swiss banks, provided that the operating account is in the exact name of the Swiss company.

Legal right to open a bank account?
With Directive 2014/92/EU, the European Union instructed its member states to ensure that payment accounts with basic functions are offered to consumers by all or a sufficiently large number of credit institutions so that all consumers have guaranteed access to such an account and distortions of competition are avoided.(6) In Switzerland, there is no explicit legal entitlement to conclude a basic account agreement. However, the Federal Supreme Court has in the past affirmed that Swiss Post is obliged to conclude an agreement, since as an institution under public law it is obliged to ensure a nationwide basic provision of postal and payment services.(7) At the cantonal level, there was a proposal in the canton of Zug in the context of a total revision of the law on the Zurich Cantonal Bank, in which an explicit obligation to contract on the part of the Zurich Cantonal Bank for contracts with Swiss nationals and persons resident or domiciled in the canton of Zug was under discussion.(8) However, such a provision was ultimately not implemented, not least because of the supervisory reservations of the Swiss Financial Market Supervisory Authority.

Liberation of cryptocurrencies by way of cash deposit?
As the keystone of the comprehensive revision of the Stock Corporation Act, the Federal Council enacted amendments to the CO and the Commercial Register Ordinance (HRegV) on 2 February 2022. The revised provisions, which will apply as of 1 January 2023, provide, among other things, that share capital may now also be held in currencies other than Swiss francs.(9) The currencies permitted in this respect are determined according to a catalogue,(10) which currently comprises four currencies. According to the report on the outcome of the consultation procedure on the amendment of the Commercial Register Ordinance of 10 December 2021, seven participants in the corresponding procedure supported the inclusion of cryptocurrencies in the catalogue – including the Canton of Neuchâtel – whereas only one participant explicitly opposed this extension.(11) Deviating from this tendency within the consulted circles, however, the issuer of the ordinance did not, as a result, permit any crypto (or other national) currencies.(12) As a consequence, a payment in cryptocurrencies by way of cash deposit is ruled out de lege lata.(13)

It is hoped that the Federal Council should reconsider this decision in the context of future ordinances. This applies in particular if, as is to be expected, more far-reaching international regulation of blockchain or distributed ledger technologies and their interfaces to the existing currency system takes place,(14) and AML and KYC concerns can accordingly be taken into account more extensively in connection with cryptocurrencies as well.

Payment in cryptocurrencies by way of contribution in kind
For the time being, an alternative is to make a payment in cryptocurrencies by way of a contribution in kind. In order for amounts in cryptocurrencies to serve as contributions in kind, they must, in particular, be capitalisable, freely transferable, freely available and realisable in accordance with the general requirements for contributions in kind.(15) The Commercial Register Office of the Canton of Zug (HRA Zug) considers it to be an indication that the above criteria are met if a certain cryptocurrency has a comparatively large trading volume and a relatively high market capitalisation.(16) Accordingly, Bitcoin (BTC) and Ether (ETH) are accepted by the HRA Zug as contributions in kind without issue.(17)

On 25 September 2017, one of the first cantonal commercial registry offices entered a non-cash contribution formation with the cryptocurrency bitcoin (BTC) in the commercial register.(18) Subsequently, other commercial registry offices followed suit.(19) The HRA Zug advises that, in the case of other cryptocurrencies, clarification should be made with the registry in advance.(20) This gives future shareholders of public limited companies active in the crypto or blockchain sector an alternative if they are denied the capital contribution account required for the formation or capital increase. This is all the more obvious because future shareholders of companies operating in these areas will generally already have crypto assets.(21)

For further information on this topic please contact Kilian Schärli or Jonas Schütte at MLL Meyerlustenberger Lachenal Froriep Ltdby telephone (+41 44 396 91 91) or email ([email protected] or [email protected]). The MLL website can be accessed at

An earlier version of this article was first published in German in the Anwalts Revue – Das Praxismagazin des schweizerischen Anwaltsverbandes.


(1) This article refers only to stock corporations. However, the content is applicable also to limited liability companies.

(2) The EHRA has permitted payment in freely convertible foreign currencies since 2004. For more details, see HANDSCHIN/CRAMER, Grundung und Kapital bei AG und GmbH - ausgewahlte Fragen, Gesellschaftsrecht und Notar - Beitrage der Weiterbildungsseminare der Stiftung Schweizerisches Notariat of 1 September 2015 in Zurich and from 8 September 2015 in Lausanne, page 39 et seq (page 60 f). Accordingly, the Swiss banks open capital contribution accounts also in foreign currencies, whereby it must be noted that the amount in foreign currency must cover the share capital (which continues to be denominated in Swiss francs) taking into account fluctuations in the exchange rates on the day of notarisation, which is the entry in the daily register and approval by the EHRA (see HANDSCHIN/CRAMER, ibid).

(3) Article 633(1) of the CO.

(4) The Federal Council recognises the problem and expresses that "in practice . . . the opening of bank accounts pose[s] a challenge for these start-ups as well as for the banks" (unofficial translation). See Federal Council Report of 14 December 2018 on the legal basis for distributed ledger technology, page 16.

(5) See, for example, article 10 of the Agreement on the Code of Conduct for the Due Diligence of Banks (CDB 20). Pursuant to article 35 of the Anti-Money Laundering Ordinance by the Swiss Financial Market Supervisory Authority, CDB 20 has the status of an ordinance.

(6) Article 16(1) of Directive 2014/92/EU.

(7) BG, Urteil 4A_417/2009 v. 26. 3. 2010, E. 3.4. In this case, the respondents were several companies. However, see article 45 paragraph 1 Postal Ordinance (VPG).

(8) See report and proposal of the pre-consultative committee of 19 June 2018 on a Total Revision of the Law on Zug Cantonal Bank (Cantonal Bank Law), page 7.

(9) See in particular article 45a of the revised HRegV (revHRegV).

(10) Annex 3 of the revHRegV.

(11) See results report on consultation: amendment of the Commercial Register Ordinance, paragraph 4.2.3 and fn. 11 et seq

(12) See Federal Council media release of 2 February 2022.

(13) Based on current and future law (article 43 paragraph 1 lit f of the HRegV and revHRegV), the question of the feasibility of "cryptocurrency capital contribution accounts" also arises. See MU LLER/STOLZ/KALLENBACH, Liberierung des Aktienkapitals mittels Kryptowahrung, AJP/PJA 11/2017 page 1318 et seq (page 1322).

(14) For an inventory, see Global Blockchain Business Council, Interactive Map of Blockchain and Digital Asset Regulation. For an overview of the international regulatory coordination underway and an outlook on possible central bank digital currencies, see the World Economic Forum's Digital Currency Governance Consortium.

(15) MU LLER/STOLZ/KALLENBACH, Liberierung des Aktienkapitals mittels Kryptowahrung, AJP/PJA 11/2017, page 1318 et seq. (page 1323) with further evidence.

(16) Instruction sheet on payment with a cryptocurrency from the HRA Zug of 6 April 2018, paragraph 2.

(17) Instruction sheet on payment with a cryptocurrency from the HRA Zug of 6 April 2018, Ziff. 2.

(18) See the instruction sheet on payment with a cryptocurrency of the HRA Zug of 6 April 2018, "Introduction".

(19) For example, since August 2018, the Swiss Official Gazette of Commerce has shown 89 new start-ups under BTC in kind, of which:

  • 75 in Zug;
  • three in Zurich;
  • two in Obwalden;
  • two in Schwyz;
  • one each in:
    • Bern;
    • Graubünden;
    • Lucerne;
    • Nidwalden;
    • St Gallen;
    • Schaffhausen; and
    • Uri.

Furthermore, in the same period, there have been 49 new start-ups under ETH in kind, of which:

  • 41 in Zug;
  • four in Zurich;
  • one each in:
    • St Gallen;
    • Schaffhausen;
    • Solothurn; and
    • Schwyz.

For USDT (Tether), the corresponding data are:

  • 28 in Zug;
  • five in Schwyz;
  • two in Zurich; and
  • one in Lucerne.

For USDC (USD coin), the number are:

  • 30 in Zug; and
  • one in Zurich.

There were sporadic start-ups with:

  • BNB in Zug and Bern;
  • DOT ("Polkadot") in Zug and Schaffhausen;
  • UST ("TerraUSD") in Zug and Lucerne;
  • BUSD ("Binance USD") in Zug;
  • XRP in Zug; and
  • SOL ("Solana") in Zug.

Foundations involving ADA ("Cardano") or DOGE ("Dogecoin") could not be detected.

(20) Instruction sheet on payment with a cryptocurrency from the HRA Zug 6 April 2018, paragraph 2.

(21) MU LLER/ZYSSET/KALAITZIDAKIS, Die Einlage von Kryptowahrungen zur Grundung einer Gesellschaft, 20 May 2019, page 4.