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FINMA Issues Guidance on Staking Services

11 January 2024 | Legal Alerts
The Swiss Financial Market Supervisory Authority, FINMA, has released comprehensive guidance on staking services. This guidance outlines FINMA's supervisory approach with a primary focus on safeguarding customers from potential risks associated with staking service providers facing bankruptcy.
Legal ambiguities surround custody of staked crypto assets.
Staking services have introduced complexities in interpreting existing laws regarding the custody of crypto assets. Specifically, there is a legal grey area concerning the protection of staked crypto assets in the event of a staking service provider's insolvency. The key criterion for protection hinges on ensuring that crypto assets are continuously held in readiness for customers. Currently, it remains uncertain whether this requirement is met.
FINMA's guidance aims to bring greater clarity regarding the treatment of staking services within the framework of financial market regulations. Until further legislative or case law clarifications emerge concerning the segregation of assets, in the event of a supervised entity's bankruptcy, staked crypto assets must be isolated from the bankrupt estate and returned to the custody account customers, following FINMA's current assessment.
Furthermore, staking activities will not trigger capital requirements for supervised institutions, provided they have implemented effective risk-mitigation measures and appropriately informed customers about associated risks. The guidance also provides an overview of various forms of staking crypto assets, outlines associated risks, and delineates the necessary risk-mitigation measures to be adopted by supervised institutions.
FINMA Issues Guidance on Staking Services

Investor Risk Advisory for Staking

Staking encompasses a number of inherent risks. In addition to the prevailing legal ambiguities, these include several additional risk factors, including, notably:

  • Technical Risk:

    The potential for staking processes to malfunction, coupled with the risk of crypto assets being subjected to slashing in the event of misconduct by the validator node.

  • Counterparty Risk:

    Associated with the uncertain legal landscape, particularly concerning bankruptcy scenarios. This uncertainty is further compounded when custody or staking is entrusted to entities outside the jurisdiction of Switzerland.

  • Market Risk:

    Arises from the possibility of being unable to liquidate staked crypto assets promptly in a volatile market, primarily when the unstaking process involves a lock-up or exit period. Such delays may impede the timely release of locked crypto assets.
Conclusion
FINMA's guidance addresses the complexities of staking services and aims to protect investors. However, investors should be aware of inherent risks, including technical, counterparty, and market-related concerns. Caution, due diligence, and vigilance are essential in navigating the evolving crypto landscape. As the industry matures, robust regulations and risk management practices will be crucial for ensuring security and stability in staking services.
Sources

1. https://www.finma.ch/en/news/2023/12/20231220-meldung-am-staking/

Disclaimer:

This legal alert provides a general overview of the topic and should not be considered legal advice. Legal situations may vary, and businesses should consult with legal professionals to address their specific concerns.
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