The principle of technology neutrality

Read the PDF edition (2 pages)

Swiss financial market law regulates activities and instruments by their economic function without asking which technology an institution uses. A deposit is a deposit whether it is booked in a traditional core banking system or on a blockchain. A security is a security whether it is represented by a paper certificate, an entry in a central securities depository or a token. FINMA has applied this principle consistently since its first statements on Bitcoin in 2014, summarising it in the phrase "same risks, same rules".¹

The principle has two consequences for the crypto industry. The first is that no activity is exempt from regulation merely because it takes place on a blockchain. A token that functions as a share is subject to the rules that govern shares, while a platform that holds clients' crypto-assets in a way that creates a claim against the platform may be taking deposits. The second consequence is that the crypto industry did not have to wait for a special law before it could operate, since projects could obtain legal certainty by analysing their activities under the existing laws and by asking FINMA for a ruling. That approach explains why Swiss crypto regulation developed through guidance and practice before it developed through legislation.

The principle also has limits, because some features of crypto-assets have no clear equivalent in traditional finance. A token held in a wallet whose private key only the holder controls is not a claim against any intermediary. A decentralised exchange has no operator in the ordinary sense. A stablecoin may combine features of a deposit, of a payment instrument and of a fund unit. For such cases, the application of the existing laws requires interpretation, with the legislator intervening where interpretation could not produce acceptable results. The DLT Act examined in Chapter II was the main intervention of this kind.

Notes

FINMA, "Supplement to the guidelines for enquiries regarding the regulatory framework for initial coin offerings (ICOs)", 11 September 2019, finma.ch, section 2.1: the treatment of stablecoins focuses on economic function ("substance over form") and "follows the tried and tested principle of 'same risks, same rules'". The longer form "same business, same risks, same rules" does not appear in this document or in the ICO guidelines of 16 February 2018. ↩

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.

English

Contact

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.

My approach is to act as a trusted advisor who works directly with decision-makers, on an equal footing: I start from what you want to achieve and shape every structure, contract and tax decision around your commercial goals and how it improves your after-tax return. As “lawyers who make it happen”, my team and I stay involved until your company is set up, your structure is in place and your transaction has closed, and we remain available for any follow-on work that may be required. You benefit from bespoke solutions and personal attention, and sound, friendly and practical advice. We are not the lowest-cost provider in the market, nor do we intend to be; our aim is to deliver well-founded, proper solutions and excellent value for money.

Get in touch →

The principle of technology neutrality

Notes

Setting up or expanding in Switzerland?