By publicising the guidelines (“Guidelines”), explicating how it intends to implement financial market legislations in dealing with enquiries regarding the applicable regulatory framework for initial coin offerings (“ICO”)dated February 16, 2018 FINMA, the Swiss Financial Market Supervisory Authority paves the path for ICOs. The Guidelines complement FINMA’s earlier Guidance 04/2017, published on September 29, 2017.
By issuing the Guidelines, FINMA takes an important initiative to further straighten out the applicability of the current legal and regulatory framework associated with the organisation of ICOs or Token Generating Events (“TGE”) in Switzerland. Consequently,FINMA emerges as the first global regulator to extend a meticulous and principle-based analysis on how it intends to treat enquiries from ICO organisers.
Great news upfront: FINMA’s Guidelines recognise the innovative potential of blockchain technology creating a positive and (lightly) regulated ambience for this highly dynamic market. Through this most recent Guideline, FINMA informs ICO organisers what information is required to be submitted along with enquiries, allowing FINMA to respond more effectively, and of greater importance, it clarifies the principles on which FINMA will base its response to such enquiries or ruling requests.
As the Guidelines target to provide a high-level guidance, they also leave a degree of dubiousness with regard to a number of legal questions. The Guidelines provide a general framework as to how FINMA currently interprets the regulatory landscape, however in our view, many market participants may nevertheless require further clarity on the regulatory treatment of their token or ICO, obtained by means of a non-action letter. The Guidelines further do not detail the reasoning behind FINMA’s legal analysis. It thus remains to be seen to what extent future case law and further regulations will continue to support FINMA’s approach as the technology and market matures. Finally, the Guidelines focus largely on traditional issuer / investor relationships and does not take into account aspects of decentralized funding models, community-based projects and open-source software developments.
The guidelines can be found on the following link
Source: mme.ch
