Digital markets, funding and payment servicesi Collective investment schemes
Collective investment schemes governed by CISA are assets, raised from investors for the purpose of collective investment, which are managed for the account of such investors, whereby the investment requirements of the investors are met on an equal basis. Open-ended collective investment schemes are organised under company or contract law; closed ones only under company law.ii Crowdfunding
Under Swiss law, crowdfunding is permitted and does not per se trigger a licence requirement. However, if crowdfunding includes 'assets raised from investors for the purpose of collective investment' and these crowdfunding assets are managed for the account of such investors (by a third party), subject to equal treatment provisions, they would qualify as collective investment scheme within the meaning of CISA. In such case, the respective requirements according to CISA would have to be adhered to.iii Crowd-lending
Crowd-lending, also known as peer-to-peer lending, is not per se regulated. However, depending on its specific set-up, it may fall within the scope of the Banking Act, SESTA, AMLA, etc. In addition, a consumer credit agreement is a contract whereby a creditor grants or promises to grant credit to a consumer in the form of a deferred payment, a loan or other similar financial accommodation. In general, the CCA will be applicable to crowd-lending activities if the counterparty were to qualify as a consumer. In such case, the respective rules of the CCA would have to be adhered to, for example, the maximum interest possible for consumer credits currently amounts to 10 per cent.
Platforms providing crowdfunding and crowd-lending services do not require a licence if the funds of the investors are directly sent to the projects (i.e., not through the platform). If funds are sent via accounts of the platform, this can only be done without a banking licence if the account is non-interest-bearing, the funds are kept not longer than 60 days on the account and the client is informed that the platform does not hold a licence. The platform will need to register as a financial intermediary with an SRO and to comply with AML obligations.
Even the project developer may qualify as a bank if it accepts more than 20 loans and the amount exceeds 1 million Swiss francs.
Loans can be traded on secondary markets, subject to compliance with AML laws. However, the transfer of a loan requires either transfer of the contract or assignment of the claim. Assignment of claims can only be done in writing; in other words, with a handwritten (or electronic) signature of the assignor.iv Payment systems
Payment systems only require a licence from FINMA if they are deemed relevant for the proper functioning of the financial market or for the protection of financial market participants and if the payment system is not operated by a bank. In order to be eligible for a FINMA licence as a payment system, certain requirements have to be met; for example, the applicant must be a legal entity under Swiss law and have its registered office and head office in Switzerland, provide for a guarantee of irreproachable business conduct, the minimum capital of the applicant must be fully paid in and the applicant must possess appropriate IT systems.
Switzerland not being a member of the European Economic Area, it decided not to implement the second Payment Services Directive of the EU. This means that there is no harmonisation of interfaces and no general access to accounts for third-party payment service providers must be granted by Swiss banks. However, as banking services in Switzerland are often cross-border, it is expected that many banks will soon provide open access to account interfaces upon request of their clients.