#Crypto42 Token Summit; When a token qualify as security under Swiss Law (Ronald Kogens)

1. When a tokens qualify as
security under Swiss law
FRORIEP Legal Ltd

2. 17. April 2018 | Page 2
Tokens as Securities under Swiss law according to the latest guidance by the Swiss Financial Market Authority
Qualification as a Security
•If tokens are suitable for (i) mass trading and (ii) represent fungible rights (same structure and denomination) or are placed with more
than 20 individuals, insofar as they have not been created especially for individual counterparties, such tokens qualify as security under
Swiss law. Although such qualification has not direct consequences, the international distribution becomes more burdensome.
•Exception:
•No temporary tokens or other tradeable rights are issued until the indented product is fully developed and functional
Accordingly (FINMA classification):
•Payment Tokens qualify as securities if such tokens (i) are indented to be used on a specific platform as a means of payment
and (ii) such platform is not fully developed at the time of token issue
•Utility Tokens qualify as securities if such tokens (i) represent a right to access a platform or use a resource and (ii) (a) such
access or resource is not fully developed at the time of token issue or (b) when the platform or resource is available, the overriding
purpose of the tokens is “investment” and not the access or use.
•Asset Tokens qualify always as a security as they usually represent equity, a participation right or a bond.
Takeaways:
“Tokens can be hybrid i.e. a utility token or an asset token can also be a payment tokens and vice-versa.”
“If you want to issue a payment token or a utility token that not qualifies as security under Swiss law, then: (i) do not issue the tokens until
the underlying platform or protocol exists; (ii) and do not promote listing of tokens on third party exchanges.”
Note: This overview is limited to the qualification as security under Swiss law. Depending on the structure of the project, the banking act, the anti-money
laundering act, the financial market infrastructure act, the stock exchange act and the collective investment schemes act may also be applicable.