Amid the complex landscape of crypto assets regulation, recent actions by financial authorities have underscored the challenges faced by crypto-related entities. One such case is the conclusion of enforcement proceedings under the Swiss Financial Market Supervisory Authority (FINMA) against the Dohrnii Foundation and its founder. While the situation might lead some to question the state of the regulatory climate for crypto assets in Switzerland, it is essential to emphasise that the country remains an advanced jurisdiction with clear and well-established guidelines. By applying existing rules, FINMA demonstrates the importance of regulatory compliance and establishes the Swiss Confederation as an attractive destination for those seeking to operate within the boundaries of the law.
The relationship between financial authorities and the world of crypto assets has often been a complicated one that is constantly evolving. Recent actions by regulatory bodies, such as the Securities and Exchange Commission (SEC) in the United States, have highlighted the challenges of navigating the legal landscape in the crypto space. However, it is crucial to differentiate the unique circumstances surrounding each case. In the case of the Dohrnii Foundation and FINMA, it is important to note that Switzerland has long been regarded as a country at the forefront of crypto regulation.
Switzerland has earned a reputation as an advanced and forward-thinking jurisdiction when it comes to crypto regulation. With its Crypto Valley and a supportive environment for blockchain innovation, Switzerland has long been an attractive destination for crypto-related ventures. The country’s clear guidelines and regulations foster a well-regulated ecosystem, provide stability and allow entrepreneurs and investors to operate with confidence.
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FINMA’s conclusion of the enforcement proceedings against the Dohrnii Foundation and its founder a couple of weeks ago highlights the importance of regulatory compliance. It is essential to understand that the actions taken by FINMA in this case do not signify a shift towards more restrictive regulations in Switzerland. Instead, they demonstrate the application of well-established rules that have been in place since the publication of FINMA’s ICO Guidelines in 2018.
The Dohrnii team managed their token sale in a seemingly amatorial way that ignored the basic legal requirements and common business practices. Their foundation sold DHN tokens to around 500 private individuals, raising over 3 million dollars. Its founder then personally sold DHN tokens to around 60 people and raised around 3.5 million dollars. Even more, he invested those funds into crypto assets on behalf of more than 20 people.
Despite the fact that the DHN token was originally conceived as a utility token, FINMA highlighted that it was not usable as such at the moment of the token sale. Under Swiss law, utility tokens that are not yet ready for use because their native platform and functions are still under development qualify as financial instruments. This was made very clear by FINMA in the 2018 Guidelines on ICOs. Additionally, the DHN token was not actually conceived to be solely a utility token but rather a hybrid payment-utility token to be used to settle transactions between a marketplace’s users. When a token also qualifies as a payment token, the token issuer is required to operate as a financial intermediary under the provisions of the Swiss Anti-Money Laundering Act.
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As a result of the multiple violations above, FINMA issued a cease-and-desist order, prohibiting further non-compliant activities. The founder ignored the order and continued operating regardless of FINMA’s exhortations. The Cantonal Court of Zug opened bankruptcy proceedings against the Dohrnii Foundation as early as mid-March 2023 due to overindebtedness. The foundation is in the process of being dissolved.
FINMA’s actions against the Dohrnii Foundation emphasise the importance of regulatory compliance in the crypto industry. While the case may raise questions about Switzerland’s regulatory approach, it is crucial to recognise that Switzerland remains an advanced jurisdiction with clear guidelines for crypto-related activities. The actions taken by FINMA highlight the application of well-established rules rather than a shift towards stricter regulations. By adhering to the established framework, Switzerland continues to provide a supportive environment for crypto innovation, attracting those who seek to operate within the boundaries of the law.
