The law on collective investment schemes including respective licensing requirements may apply in case the funds accepted in the context of an ICO are managed by third parties.
If a trading platform aims to deal in asset tokens, in addition to payment and utility tokens, the asset tokens probably qualify as securities as defined in the FinMIA. Platform securities trading is regulated by the FinMIA. According to the FinMIA, trading platforms require a licence to operate as an exchange or multilateral trading system to trade in securities in this way. Under the law, only regulated institutions, but not private persons, may be admitted participating in an exchange or MTF. OTFs on the other hand, allow discretionary bilateral or multilateral securities trading. OTFs may be operated by banks or securities dealers and, unlike exchanges and MTFs, may also admit private clients. Supply of and demand for tokens come together on trading platforms, for example in an order book. Centralised trading platforms manage clients' crypto currency assets in their own wallets and have access to their private keys. They often hold client funds in a national currency or crypto currency over the long term. The funds taken (legal tender and crypto assets) may, under certain circumstances, qualify as public deposits, which require a licence under the BankA according to supervisory law. Decentralised trading platforms do not manage wallets for their clients. As a result, they only fall under banking law in certain aspects and only in specific instances, for example through smart contracts with a processing or repayment function. As long as they have power of disposal over the traded assets (for example by being able to release or stop transactions or orders), they are subject to AMLA.
Classification of token/coins in the jurisdiction
As set out in its ICO guidelines, FINMA defines three types of tokens: payment, utility, and asset tokens:
Payment tokens (for example crypto currencies) are tokens which are intended to be used, now or in the future, as a means of payment for acquiring goods or services or as a means of money or value transfer. The issue of payment tokens is subject to AMLA provisions as a rule.
FINMA defines utility tokens as tokens intended to provide access digitally to an application or service by means of a blockchain-based infrastructure. The issue of utility tokens does not require supervisory approval if the digital access to an application or service is fully functional at the time the tokens are issued.
Asset tokens represent assets, such as a debt or equity claim on the issuer. In terms of their economic function, therefore, these tokens are analogous to equities, bonds, or derivatives. The self-issue of asset tokens that qualify as securities does not require FINMA approval but is governed instead by the prospectus requirements of the Swiss Code of Obligations ('CO').
Hybrid tokens are also possible: a token that simultaneously counts for utility and payment for example.
Presence of a duty to publish a prospectus bevor offering token/coins to investors