Introduction

Switzerland is one of the major hubs for initial coin offerings (ICOs) and cryptocurrency and blockchain-related companies. The Financial Market Supervisory Authority (FINMA) encourages innovation and competitiveness in the Swiss financial marketplace. FINMA decided early on to apply the existing financial market regulations to ICOs and crypto and blockchain-related companies and business models. The FINMA ICO Guidelines were published in February 2018 in order to explain publicly which laws apply to the function and transferability of tokens. There has also been great public support from the government, in particular from the finance minister and the economic affairs minister.

However, as Switzerland becomes an increasingly attractive home for blockchain companies, a growing number of these pay bills, salaries and social security fees using a fiat currency, which requires a corporate bank account with a Swiss bank.

The Swiss Bankers Association (SBA) announced publicly that it promotes and supports an innovation-friendly environment in the digitalisation arena. This also includes promoting conditions that support the sustainable growth of companies involved in blockchain technology. However, the SBA also points out that opening an account poses various challenges for banks, because the new blockchain technologies can be associated with risks, especially in regard to money laundering. As Switzerland has strict laws and due diligence requirements in place governing financial transactions, banks must carry out careful checks when opening an account.

The SBA recognised the challenges of opening accounts for blockchain companies at an early stage and set up an internal working group involving member banks and the Crypto Valley Association, to work specifically on requirements and conditions that might apply when opening accounts for companies with links to blockchain and ICOs. As a result, the SBA recently published new guidelines for its member banks which included recommendations on how to treat and onboard blockchain companies for ordinary corporate bank accounts.

Differentiated approach

The SBA's guidelines aim to help banks take a differentiated approach to account opening, depending on the nature of the connections that a company has with blockchain technology. Companies are categorised based on how these connections relate to ICOs and the nature of their corporate financing.

The guidelines address only operative companies which are domiciled in Switzerland with local substance and assumes that applicant companies are subject to the Anti-money Laundering Act. Companies with no Anti-money Laundering Act oversight must give reasons for this and where any doubts emerge, the bank may request a FINMA no-action letter.

Blockchain companies without ICOs Companies with business models linked to blockchain technology which do not use said technology for corporate financing should be treated the same as any other small and medium-sized entity wishing to open a corporate bank account.

Blockchain companies with ICOs Companies that raise capital for corporate purposes by issuing tokens using blockchain technology may do so in the form of fiat currencies or cryptocurrencies, subject to the following:

  • Fiat currencies – among other requirements, companies using fiat currencies must provide the banks with:
    • their ICO terms and conditions;
    • their internal policies on managing cross-border risks and implementing country restrictions; and
    • a completed version of the annex to the FINMA ICO Guidelines with respect to describing their tokens.
  • Cryptocurrencies – higher and additional requirements should be imposed on such companies irrespective of whether they are subject to the Anti-money Laundering Act, for example:
    • Every investor or token purchaser should register their name, address, country, date of birth, nationality and place of birth, and a wallet analysis should also be performed.
    • ICO organisers should apply full Anti-money Laundering Act and know-your-customer standards when accepting cryptocurrencies under an ICO worth more than Sfr15,000 and perform a thorough source-of-funds check for amounts over Sfr100,000.
    • The acceptance of cryptocurrencies under ICOs should always be treated as a minimum in the same way as a cash transaction.

The SBA has reminded its member banks that cryptocurrency trading platforms and cryptocurrency to fiat currency conversions are considered high risk from an anti-money laundering perspective.

FINMA ICO Guidelines and CDB 16

The SBA's guidelines adopt the terminology and classification of tokens in accordance with the FINMA ICO Guidelines and build on the 2016 Agreement on the Swiss banks' code of conduct with regard to the exercise of due diligence (CDB 16), with additional blockchain-specific principles.

The SBA's guidelines do not define the binding minimum standards for Swiss banks. Institution-specific instructions issued by each bank will take precedence. Therefore, there is no automatic right for any blockchain company to open a bank account.

For further information on this topic please contact Alexander Vogel or Reto Luthiger at Meyerlustenberger Lachenal by telephone (+41 44 396 91 91) or email (alexander.vogel@mll-legal.com or reto.luthiger@mll-legal.com). The Meyerlustenberger Lachenal website can be accessed at www.mll-legal.com.

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