- within Antitrust/Competition Law topic(s)
On 12 January 2026, FINMA published its Guidance 01/2026 ("Guidance"), setting out expectations regarding the custody of crypto-based assets and the associated risks for institutions subject to FINMA's supervision.
Against the backdrop of a rapidly growing market for crypto-related trading, investment and custody services, FINMA observes that crypto-based assets are increasingly held with/by, or part of the management and advisory services provided by, banks, securities firms, portfolio managers and collective investment schemes. The Guidance aims to clarify how existing Swiss regulatory requirements apply to the custody of crypto-based assets, with a clear focus on client and investor protection.
FINMA highlights the technology-specific risks inherent to the underlying distributed ledger technology (DLT), as well as operational and cyber risks, private-key management risks, and counterparty risks where custody is delegated to third parties. According to FINMA, these risks arise particularly when custodians are located abroad and/or are not subject to equivalent prudential supervision and equivalent bankruptcy protection.
In particular, the Guidance outlines FINMA's expectations for the following constellations:
- Custody of crypto-based assets by Swiss banks, including the conditions under which such assets qualify as bankruptcy-remote custody assets under Swiss law.
- Delegation of custody to foreign custodians, which is only acceptable where the custodian is subject to equivalent prudential supervision and foreign law provides comparable protection in case of bankruptcy.
- Individual portfolio management, requiring that clients' crypto-based assets be held separately for each client and in custody by select types of prudentially supervised institutions. Existing custody arrangements that do not meet this standard may exceptionally be permissible, provided that the clients agree in writing, having been fully informed of the higher risks.
- Collective investment schemes, where the custody of crypto-based assets remains subject to the strict requirements of the Collective Investment Schemes Act, generally requiring fund assets to be held with a Swiss custodian bank. If a custodian bank delegates the safekeeping of fund assets to a third-party custodian, investors must be informed of the related risks in the prospectus and key information document.
- Structured products and crypto Exchange Traded Products (ETPs), highlighting that the above-described custody-related risks particularly apply to the underlying collateral, and the need for legally enforceable protection mechanisms pursuant to the Financial Services Act where the products are offered to private clients.
FINMA further stresses that the supervised institutions remain fully responsible for ensuring compliant custody structures and that custody arrangements which do not meet supervisory expectations must be revisited and, where necessary, adapted.
The Guidance is of particular relevance for Swiss financial institutions offering crypto-related services or products and provides important guidance for the set-up and ongoing monitoring of custody models involving crypto-based assets.
Press Release re FINMA Guidance 01/2026
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