Switzerland often ranks among the most friendly and accommodating countries for blockchain-based companies to conduct their initial coin or token offering (“ICO”). Indeed, recent estimates are that more than 530 blockchain companies established in the Swiss cantons of Zurich and Zug have raised more than US$540 million through ICOs.
Despite these facts, these companies often face significant difficulties in opening a bank account in Switzerland to hold the fiat currency proceeds of their ICOs. Swiss banks have—understandably—remained concerned about the sources of funds raised through ICOs and whether, for example, proper anti-money laundering safeguards have been fulfilled during the capital raise. As a result, except for a small number of institutions, Swiss banks often categorically decline to open bank accounts to hold fiat currency raised by blockchain companies through ICOs. In fact, blockchain-related companies in general have difficulty opening accounts in Switzerland.
This practice poses a significant challenge for Swiss blockchain companies. Aside from simply needing an account to receive and hold their funds, these companies also need accounts and financial services to pay salaries of employees and expenses, invest in infrastructure, and otherwise pay for company activities. These companies often resort to opening an account with an institution in a different country. Accordingly, there has been an industry-wide concern that blockchain companies will relocate to or choose different countries for their operations.
In response, the Swiss Bankers Association (“SBA”)—an association of more than 300 financial institution members—released Guidelines (in German) on 21 September 2018 to help banks in opening corporate accounts for companies that have blockchain-related businesses. These Guidelines take a differentiated approach to account opening for blockchain companies—specifically, standards for opening accounts are different depending on whether the blockchain company raised funds through an ICO, and whether fiat currency or cryptocurrencies were accepted during the ICO. The following is a brief summary of the more prominent points made in the Guidelines. It is not an exhaustive list of requirements that blockchain companies should anticipate.
- Blockchain companies without an ICO: Companies with a nexus to blockchain technology but that have not raised capital through an ICO should generally be subject to the same (strict) processes and standards as other similarly sized companies. As such, to fulfill their duty to cooperate in opening a bank account, the company must provide a meaningful business plan that demonstrates, namely, knowledge of and compliance with relevant regulations. The company may also be required to describe, among other items, expected cash flow, business intentions, planned usage of capital and expected income
- Blockchain companies with an ICO: Companies with a nexus to blockchain technology that also raise capital through a public ICO are subject to additional and stricter requirements. The Guidelines recognize and differentiate further between blockchain companies that raise capital by accepting fiat currency and those that accept cryptocurrencies (such as Bitcoin or Ether). Blockchain companies that accept other cryptocurrencies during the ICO will have another layer of requirements.
All blockchain companies that organized an ICO will need to provide information regarding their liquidity planning, including the composition of their fiat and individual cryptocurrency holdings. The companies will also need to provide a description of the tokens offered in accordance with FINMA’s 16 February 2018 guidelines and their plans to comply with laws of the foreign countries where their tokenholders reside. These companies will also need to provide an anti-money laundering act (“AMLA”) statement or, if one was not prepared, an explanation for the lack of an AMLA statement.
For companies that accepted other cryptocurrencies during their ICO, another set of requirements should be applied. The Guidelines suggest that the acceptance of other cryptocurrencies during an ICO may be treated like a spot transaction (that is, an exchange of currencies at the prevailing market rate) and, consequently, be subject to the risk mitigation and information gathering requirements. Furthermore, these companies should demonstrate compliance with Swiss standards for origin of funds (KYC) and AMLA when accepting other cryptocurrencies as part of an ICO.
The Press Release accompanying the Guidelines emphasized that blockchain companies do not have an automatic right to an account with an institution and acknowledged the risks for banks associated with opening accounts for ICO proceeds. Nonetheless, the Press Release continues, “[b]y producing these guidelines, the SBA is promoting the optimum operating environment to support a diverse fintech ecosystem. Corporate bank accounts are an important infrastructure service, and banks have an interest in doing business in this fast-growing area.”