Switzerland sets legal foundations for blockchain industry

Blockchain and crypto tokens have the potential to bring efficiencies and cost savings to a range of industries. Dado Runic / Reuters

The Swiss government has announced a wide-ranging blockchain strategy that aims to create a legal foundation for the new technology. The reports suggests amending existing laws, rather than creating new legislation, in a bid to enhance Switzerland’s status as a blockchain-friendly country.

The main focus of the strategy is to incorporate decentralised digital tokens into the Swiss business infrastructure, particularly the financial sector. One proposal is to clear away regulatory hurdles for trading securities (such as shares, bonds or real estate) on blockchain platforms. This would create a new regulatory category along the lines of recent fintech laws, which allow certain financial activities to be carried out by tech start-ups without a banking license.

Switzerland has rapidly established itself as one of the world’s leading blockchain hubs, attracting both start-ups and hundreds of millions of dollars in investments. The technology, which started off as a means to replace the existing financial infrastructure, is now being adopted and adapted by banks, stock exchanges and other industries.

Blockchain/DLT

Blockchain is one example of distributed ledger technology (DLT), a recent digital innovation that allows people to take direct control of their own assets and trade them peer-to-peer without the need for centralised third parties, such as banks or other entities.

Asset ownership and transactions are recorded on encrypted digital ledgers that are open for all participants to both view and validate. The complete history of asset ownership is included on these ledgers. To protect privacy, participants are assigned “private keys” – a series of randomly generated letters and numbers that act as IDs.

Blockchain was originally designed to be totally decentralised and open to the general public. But this is not suitable for many businesses that instead opt for restricted DLT platforms that require special permission to access.

The Swiss government reportExternal link released on Friday describes the innovation as “among the remarkable and potentially promising developments in digitalisation. It is predicted that these developments have considerable potential for innovation and enhanced efficiency, both in the financial sector and in other sectors of the economy.” 

Digital assets

It also acknowledges that the true potential of blockchain – a form of distributed ledger technology (DLT) – “cannot yet be conclusively estimated” as it has yet to be tested on an industrial scale. Another caveat in the report talks about the risk of cryptocurrencies being used for criminal purposes, including the financing of terrorism. The government said it would remain vigilant but was waiting for the creation of international guidelines before deciding if it needed to take further action.

While current Swiss regulations cover many forms of digitalisation, such as e-banking, some aspects of blockchain/DLT technology fall between the cracks in the legal code. There are two notable challenges to incorporating blockchain into the law.

New forms of encrypted digital tokens are not backed by physical assets, such as government issued money or paper certificates. The law needs to be amended to recognise digital-only assets, the report suggests.

Secondly, blockchain is designed to bypass middlemen who keep records of transactions and play a recognised role in protecting consumers from fraud. They are replaced in blockchain by decentralised digital ledgers and smart contract code that automatically processes transactions. The government wants financial transactions that are performed without physical intermediaries to have a place in the legal code.

Positive reaction

The report also proposes giving the financial regulator discretion to apply a lighter touch for decentralised blockchain/DLT securities trading platforms, provided their activities are not likely to harm investors. The Swiss Financial Market Supervisory Authority (FINMA) currently has these powers when assessing fintech start-ups that offer limited banking services.

The creation of such discretionary powers circumvents recent Swiss legislation that was inacted to align the Swiss financial centre with the European Union, says Luzius Meisser of the Bitcoin Association Switzerland. The law created three categories of stock exchange – none of which are suitable for decentralised token platforms, “making it necessary to create a new type in order to allow such exchanges to exist in Switzerland,” Meisser says.

“This shows once again how the traditional Swiss approach of having principle-based laws that give a lot of discretion to citizens and regulatory agencies are much more innovation-friendly than overly detailed European-style laws,” he said in a written statement.

Blockchain financial start-ups will soon be able to take advantage of new fintech-friendly regulations allowing firms to take up to CHF100 million in client deposits without needing a banking license. Fintechs that qualify under this new regulatory category could also take custody of clients’ crypto tokens up to this value.

Unlike neighbouring Liechtenstein, that is in the process of creating a new set of laws aimed specifically at blockchain, Switzerland has chosen the route of adapting current legislation to incorporate the new technology. This approach was welcomed by the Crypto Valley Association (CVA), which it sees a solid legal base as an essential pillar of Switzerland’s blockchain strategy.

“We feel that this approach best represents the principle of technological neutrality and is in line with the position taken by the CVA in the consultation process,” Mattia Rattaggi, CVA spokesman for regulatory matters, said in an emailed statement to swissinfo.ch. “Crucially, this approach ensures maximum consistency within the current legal framework while keeping it principle-based and flexible, while allowing changes to be adopted on a ‘need-to-regulate’ basis.”

The issue of how to tax digital tokens has been put off until a review is complete at some stage next year. The federal communications ministry has also been tasked next year with determining how blockchain can be reconciled with data protection laws.

Proposed law changes

Amend company bankruptcy laws to recognise data as an asset. This would allow courts to handle purely digital assets, and make sure they go to the right creditor, when sorting out insolvent firms.

Amend the Banking Act along the same lines as above in the case of a financial institution going bankrupt.

Amend the scope of the Anti-Money Laundering Act to cover decentralised exchanges with the power to dispose of third-party assets.

Create a “new authorisation category” for blockchain securities traders and exchanges to give FINMA discretion to apply a lighter touch when assessing the activities of such entities. Amend the Financial Market Infrastructure law and the Financial Institutions Act to “create more flexibility” for blockchain/DLT applications.

The finance ministry is already looking into a Collective Investment Schemes Act amendment to include a new category of funds (limited qualified investment funds L-QIFs) so that “new innovative products could be placed on the market more quickly and cost-effectively in the future”.

No immediate changes to financial laws for the insurance industry are immediately foreseen as blockhain/DLT is in its “infancy” in this sector.

The report also sees no reason to change any legislation with regards to cryptocurrencies.