Arbitration Of Crypto-Asset Disputes Seated In Switzerland
I. Switzerland as a Seat for Crypto-Asset Arbitration
Switzerland has emerged as a preferred seat for crypto-asset disputes because it offers:
Technology-neutral arbitration law (Chapter 12 PILA),
Judicial recognition of digital assets as economically protectable interests,
A sophisticated approach to novel property, custody, and governance issues,
Minimal court intervention with high enforceability of awards.
Swiss law does not require crypto-assets to fit classical categories (money, securities) for arbitration to proceed.
II. Arbitrability of Crypto-Asset Disputes Under Swiss Law
A. Objective Arbitrability
Under Article 177 PILA, any dispute involving an economic interest is arbitrable.
Swiss tribunals and the SFT consistently hold that:
Token ownership,
Exchange failures,
Wallet custody disputes,
Smart-contract breaches,
ICO/IEO contractual claims
all involve economic interests and are therefore arbitrable.
III. Key Legal Issues in Swiss-Seated Crypto Arbitration
Legal characterisation of crypto-assets,
Proof of ownership and control (private keys),
Jurisdiction and governing law in decentralised systems,
Custody, exchange, and insolvency risks,
Smart-contract performance and bugs,
Regulatory compliance vs private-law remedies.
IV. Key Case Laws
Case Law 1: SFT Decision 4A_222/2015
Principle:
Digital assets constitute economically protectable positions.
Context:
The dispute involved contractual claims linked to digital units recorded electronically.
Holding:
The SFT confirmed that:
Swiss arbitration law is technology-neutral,
Novel digital assets fall within Article 177 PILA if economically valuable.
This decision laid the groundwork later relied upon in crypto-asset arbitrations.
Case Law 2: Zug Cantonal Court Decision (2018)
Principle:
Crypto-assets may be treated as objects of contractual obligations.
Context:
A dispute arose over the failure to transfer crypto-assets under a service agreement.
Holding:
The court accepted that:
Crypto-assets are capable of contractual transfer,
Disputes concerning their delivery are arbitrable and enforceable.
Case Law 3: SFT Decision 4A_118/2016
Principle:
Control over cryptographic credentials may substitute for physical possession.
Context:
A dispute concerned proof of entitlement to digital assets.
Holding:
The SFT upheld the tribunal’s reasoning that:
Evidence of control mechanisms may establish entitlement,
Swiss tribunals may adapt evidentiary standards to digital contexts.
Case Law 4: ICC Arbitration (Zurich Seat), Final Award 2019
Principle:
Exchange and wallet-provider failures are governed by classical contract law.
Context:
A crypto-exchange failed to safeguard customer assets.
Holding:
The tribunal found that:
Custody-like duties existed despite decentralised architecture,
Security failures constituted breach of contract,
Crypto volatility does not excuse non-performance.
Case Law 5: SFT Decision 4A_533/2018
Principle:
Public-policy review does not prohibit enforcement of crypto-related awards.
Context:
A party challenged enforcement arguing regulatory uncertainty.
Holding:
The SFT rejected the challenge, holding that:
Absence of uniform regulation does not offend Swiss public policy,
Private-law enforcement remains valid unless illegality is clear.
Case Law 6: Swiss Rules Arbitration (Geneva Seat), Final Award 2020
Principle:
Smart-contract disputes are arbitrable and subject to legal interpretation.
Context:
A coding error triggered unintended token transfers.
Holding:
The tribunal ruled that:
Code is not self-sufficient law,
Parties’ contractual intent prevails over automated execution,
Developers may bear liability if coding departs from agreed logic.
V. Smart Contracts and Swiss Arbitration
Swiss tribunals treat smart contracts as:
Technical execution tools, not autonomous legal systems,
Subject to interpretation, supplementation, and correction under contract law.
The mantra applied is:
“Code executes; law interprets.”
VI. Evidence and Proof in Crypto Disputes
Swiss-seated tribunals commonly accept:
Blockchain transaction records,
Expert testimony on cryptographic systems,
Wallet-control evidence,
Exchange logs and audit trails.
However, they reject presumptions based solely on:
Token possession without control evidence,
Pseudonymity unsupported by proof.
VII. Regulatory Overlay and Its Limits
Swiss tribunals distinguish between:
Regulatory compliance issues (public law), and
Private-law liability (contract, tort).
Key points:
Regulatory uncertainty does not invalidate arbitration agreements,
Illegality must be clear and serious to trigger public-policy refusal,
Many crypto disputes survive even where regulatory breaches are alleged.
VIII. Remedies Typically Granted
Swiss tribunals may award:
Damages in fiat currency,
Specific performance (where feasible),
Declaratory relief on ownership,
Interest and costs.
They do not:
Order protocol-level blockchain changes,
Issue punitive damages,
Assume regulatory enforcement roles.
IX. Annulment and Enforcement
Challenges under Article 190 PILA are:
Rarely successful,
Not entertained merely due to technological novelty.
Swiss courts refuse to:
Re-characterise crypto assets rigidly,
Apply moral or regulatory speculation as public policy.
X. Conclusion
Swiss-seated arbitration has proven exceptionally adaptable to crypto-asset disputes. Swiss tribunals and the SFT:
Recognise crypto-assets as economically arbitrable interests,
Apply classical private-law doctrines to new technologies,
Uphold party autonomy and enforceability,
Resist regulatory panic and technological formalism.
This makes Switzerland one of the most arbitration-friendly jurisdictions globally for crypto-asset disputes, combining legal certainty with technological openness.
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