The practitioner's perspective
Token classification opinions
The body of law described in this chapter has generated a distinct kind of legal work in Zurich. At its centre stands the token classification opinion. Before a token is issued, listed on an exchange or accepted by a bank for custody, the issuer or the intermediary needs an analysis of its legal nature under the categories of FINMA's guidelines and of the relevant statutes. The opinion examines whether the token is a payment, utility or asset token or a hybrid, whether it qualifies as a security under the Financial Market Infrastructure Act and the Financial Services Act, whether it constitutes a deposit under banking law or a unit in a collective investment scheme, and whether its issuance or trading triggers duties under the Anti-Money Laundering Act. The functional approach of FINMA, which looks to the economic purpose of a token whatever its label, means that the opinion must be based on a careful reading of the white paper, the smart contracts, the terms of sale and the actual state of development of the project.
Crypto exchanges and banks have made such opinions a condition of listing. A Zurich crypto bank that admits a new token for trading or custody must satisfy itself and its auditors that the token does not qualify as a security for which a prospectus would be required, that it does not create unforeseen banking law risks and that its technical design allows compliance with the travel rule and with sanctions screening. The opinion therefore serves several addressees: the issuer, the intermediary, the audit firm and, indirectly, FINMA.
Enquiries to FINMA and the absence of formal no-action letters
Swiss law does not know a formal no-action letter procedure comparable to that of the United States Securities and Exchange Commission. What exists is the practice of submitting an enquiry to FINMA, often called a subjection enquiry or Unterstellungsanfrage, in which a project describes its structure and asks whether it requires a licence. FINMA's ICO guidelines of 2018 set out the information that the authority requires to deal with such enquiries.1 Although FINMA's answers do not have the status of formal rulings, they give a reliable indication of the authority's view on the facts presented. In practice, the enquiry is prepared by a law firm, accompanied by a legal analysis and submitted before the launch of the project. The canton of Zurich's call in the 2026 consultation for regulatory guidance instruments going beyond no-action letters reflects the view that this informal system no longer suffices for the volume and complexity of projects expected under the new regime.
Structuring token sales
The structuring of token sales has changed considerably since the boom of 2017 and 2018. In the first years many projects used Swiss foundations, often seated in Zug, as issuers, because the foundation offered a non-profit image and a governance structure independent of the founders. Later practice moved towards companies limited by shares, which allow investors to hold equity alongside tokens and are more familiar to institutional investors. Sales are now usually divided into a private sale to professional investors, often by means of a simple agreement for future tokens, and a later public sale or a listing on exchanges. Each stage requires its own analysis under securities law and anti-money-laundering law. The offer of tokens qualifying as securities to retail investors in Switzerland triggers the prospectus requirement of the Financial Services Act unless an exemption applies. Where the token has payment functions, the issuer must either be a financial intermediary itself or use a supervised intermediary for the identification of purchasers.
The DLT Act added the option of issuing tokens as ledger-based securities, which gives investors a statutory title to the underlying right. For equity tokens and tokenised bonds of Swiss issuers this has become the standard structure. The reform proposed in October 2025 will add a further layer, because tokens with trading character will be subject to a white paper requirement and their distribution through Swiss intermediaries to rules of conduct. Issuers that today rely on the absence of any specific regime for utility tokens will have to adapt.
Legal opinions for exchanges, banks and auditors
A further field of work concerns the regulatory status of intermediaries themselves. A crypto broker, custodian or trading platform must establish whether it requires a banking licence, a fintech licence, a licence as a securities firm, a DLT trading facility licence or only membership of a self-regulatory organisation. The answer depends on details such as whether the provider holds client funds, whether assets are held on individual or collective addresses, whether it acts on its own account and whether it admits private individuals to multilateral trading. Opinions on these questions are required by banks that open accounts for crypto businesses, by audit firms and increasingly by foreign regulators and counterparties that need to understand the Swiss regime.
Foreign clients, particularly from Asia and the Middle East, have often been drawn to Zurich by the reputation of Swiss crypto law. In practice their projects must be adapted to Swiss requirements that are stricter in some respects than those of their home jurisdictions, especially the travel rule without de minimis threshold and the identification requirements for stablecoins. An adviser who knows the regulatory regimes of Singapore, Hong Kong, Dubai and the European Union can help such clients decide which activities to conduct from Zurich and which from another centre. The competition between financial centres for crypto business is a competition between regulatory models, and the Swiss model has been defined above all by legal certainty.
Litigation, insolvency and asset recovery
The insolvency rules of the DLT Act have also created work for litigators. Customers of failed crypto platforms, in Switzerland and abroad, seek to recover their assets through segregation claims under Article 242a of the Federal Act on Debt Enforcement and Bankruptcy or through recognition of foreign insolvency proceedings. Asset tracing on public blockchains, the freezing of assets held with Swiss exchanges and the enforcement of foreign judgments against crypto holdings in Switzerland raise questions at the intersection of civil procedure, insolvency law and criminal law. The questions of criminal law and mutual assistance are discussed in Part I. For the civil lawyer the key point is that Swiss law provides a clear statutory basis for the surrender of crypto-assets held on behalf of third parties, which strengthens the position of claimants in Zurich compared with jurisdictions that still rely on general trust or property law.
Notes
- FINMA, “FINMA publishes ICO guidelines”, 16 February 2018, https://www.finma.ch/en/news/2018/02/20180216-mm-ico-wegleitung/ (on the information required for enquiries). ↩
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.