The instruments of FINMA's practice

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FINMA's practice relies on instruments that shape the market without being laws. Its guidance notices, called Aufsichtsmitteilungen, explain how FINMA applies the law in specific areas. Its circulars set out detailed requirements for supervised institutions, while its rulings decide individual cases. Its answers to enquiries from token projects under the ICO guidelines give individual certainty.¹ The crypto industry has relied heavily on these instruments. The ICO guidelines, the travel rule, the staking guidance and the stablecoin guidance were all issued by FINMA without legislation.

This reliance has advantages and disadvantages. FINMA can react faster than the legislator and adapt its practice to new developments. Its guidance is, however, not binding on the courts and can be changed without a parliamentary process. Its no-action letters protect only the project that received them, and only on the basis of the facts that it presented. The industry has called for more legislation to give the framework greater stability. The reform of the Financial Institutions Act would put some of FINMA's practice on a statutory basis.

Notes

FINMA, "FINMA guidance", finma.ch: guidance is not a supervisory tool and has no legal impact, unlike ordinances and circulars. FINMA, press release "FINMA publishes ICO guidelines", 16 February 2018, finma.ch: enquiries from ICO organisers to the FinTech Desk. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.

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Dr Alexander Ressos, TEP

Rechtsanwalt/Attorney-at-Law

I am a Swiss attorney-at-law and also admitted as a solicitor in Hong Kong and in England & Wales, with almost 25 years of experience.

Together with my multilingual team, including Chinese, Japanese, Korean, Russian, Ukrainian and French native speakers, I advise companies and their owners from around the world on the full range of banking, corporate, commercial and tax law matters in Switzerland, including international tax planning, fiduciary services, and legal family office services including immigration & relocation or real estate investments. My practice has a particular focus on clients from growth and frontier markets in Greater China, Central Asia and the Caucasus, the rest of Asia, the Middle East, Africa and Latin America, and I equally advise clients from Europe and North America. Through an affiliated Swiss trust company, we also take care of the incorporation and ongoing administration of their companies and other structures, including accounting, tax returns and corporate secretarial services, and I serve as a professional director where required. With the support of a network of first-class cooperation partners, I also implement solutions worldwide.

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The instruments of FINMA's practice

Notes

Setting up or expanding in Switzerland?