The Swiss Financial Market Supervisory Authority (FINMA) has just concluded (Press Release) that the cryptocurrency mining firm Envion AG, which raised over 90 million francs through an ICO, held the ICO illegally and was in serious violation of the Swiss laws.
Pursuant to the ICO in early 2018, Envion issued tokens to investors in exchange for payments in U.S. Dollars, Bitcoin and Ether. Investors were promised repayment after 30 years.
Announcing its findings on Wed, March 27, 2019, FINMA said Envion AG was in breach of Swiss law as it did not have a banking license to receive ‘public deposits’ as defined in Swiss banking laws or to enter into a “bond-like” arrangement with its investors. Furthermore there were other irregularities such as the absence of an internal audit unit and the tokens being not equal for all investors, which are minimum statutory requirements for the issuance of prospectuses.
FINMA’s investigations into Envion’s activities and potential breach of Swiss laws began in July 2018. The March 27, 2019 statement by FINMA essentially concludes that Envion carried out the ICO without the requisite banking license in place.
In the meantime, the Swiss Cantonal Court of Zug, in proceedings before it, found organizational shortcomings in Envion AG and has issued an order for the liquidation of Envion AG. It should be noted that, this order for liquidation has made any further supervisory action by FINMA against Envion superfluous.
Can you recover your investment in Envion AG?
In a bankruptcy/liquidation proceedings the liquidator would collect and assess the firm’s liabilities and assets and distribute the collected property in accordance with the law. Creditors have to file a 'proof of debt' with the liquidator to make a claim. If there are secured creditors they will be paid first in accordance with their prior interest and then only the unsecured creditors. Token holders, in all probability, are unsecured creditors and therefore will be paid only after the secured creditors have been paid. After having paid the secured creditors, if the firm still has assets remaining, this remaining assets will be distributed equally among all the unsecured creditors. Hence, an unsecured creditor, if he/she is lucky enough, will get a percentage of his/her original investment.
N.B. Bankruptcy/liquidation laws are extremely complex. For the sake of easy understanding, and at the risk of being imprecise, I have simplified and condensed some of its principles in my narration above. For instance, in some jurisdictions there is a clear distinction between bankruptcy (dealing with persons) and liquidation (dealing with legal entities like corporations) and in other jurisdictions, it appears, there is no such distinction with consequent differences in the usage of legal terminologies.
How to submit Proof of Debt (Register Claims)?
Please go to https://www.envion-konkurs.ch/en/ and read through the various links provided. In particular read “Bankruptcy Proceedings” and “Creditors”. Then click “Forms”, complete the form provided and send it by ar registered mail to the given address, all as per instructions on the form.
Disclaimer
Although the author has made every effort to ensure that the information in this article was correct at press time, the author does not assume and hereby disclaims any liability to any party for any direct or indirect loss, damage, or disruption caused by errors or omissions, resulting from negligence or otherwise.
The information provided is for general informational and educational purposes only and does not constitute and is not a substitute for legal advice. Before taking any action in reliance on any information contained herein, you are advised to consult with the appropriate legal professionals.
The use of or reliance on any information contained herein is solely at your own risk.
Image by Werner Sidler from Pixabay
Great read @devann. Especially for those who are interested with cryptospace in Switzerland.
From my understanding Envion AG should launch as an STO instead of ICO. Am I correct?
ps.
You keep posting really quality content. Perhaps you could always send me memo with link to your publication and 2-3 sentences description ? I will gladly support you with upvote, will drop a comment.
Especially if your publication will be related to crypto,blockchain,AI, economy or psychology (just don't send me memos like every day hehe)
And if I will have some time then I will also share your publication with my larger audience and will help you get some extra traffic.
Please keep in mind, that you can count on my help (whenever I can support you, I will) :)
Cheers
Piotr
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Dear @crypto.piotr, I posted this article with the hope that readers will draw parallels and come to their own conclusions.
Investors tend to believe or make erroneous conclusion that it should be safe to invest in an ICO offered from a first world country like Switzerland.
The lesson we can draw from this case is that we cannot assume that an ICO being offered from a first world country that has good financial legislative framework is sufficiently safe. The investor need to ask the issuers of the ICO tough questions like:
Did the issuers get independent advice from international merchant banks on the need to get approval from local regulatory authorities?
If approval is required, what are the requirement that must be met to get the approval?
Were these requirements met?
etc etc
In this case the issuers of ICO should have had a banking licence, which they didn't. Further the issuers should have complied with the other statutory requirements like having an internal audit unit. Whether they called it ICO or STO does not matter. The form didn't matter; the substance matters.
You can apply these principles to other countries where they have similar legislation, like Hong Kong, UK, Malaysia and so forth and ask the same questions. At least you put the issuers in a spot and even if you don't get honest answers from the issuers you may get someone else who has knowledge of local legislation to contribute to the discussion and you will get to know things better.
On the question of support, I have already mentioned to you earlier that I will not be seeking it. The reason for it is that I strive to follow a concept known as "karma yoga". You can read about it here and here.
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Thank you for your brilliant comment @devann
What is internal audit unit? Would you mind sharing with me?
ps.
Your knowledge is mindblowing. Did you ever consider trying to be part of some project (ICO or STO?). Just wondrering.
I understand. At the same time I hope you won't mind if sometimes I will share your publications with several friends I value? :)
Have a great upcoming week buddy
Piotr
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Thanks for the lavish compliments @crypto.piotr.
Every regulated institution in Switzerland must establish an internal audit unit which reports to the board of directors or its audit committee and fulfills the auditing and monitoring responsibilities assigned to it in an independent fashion. It has an unlimited right of inspection, information and audit within the institution. It delivers independent audits and assessments of the appropriateness and effectiveness of the company's organisation and business processes, particularly as regards the institution's Internal Control Systems and risk management. (paraphrased from Finma Website).
Since, I am relatively new to cryptocurrencies and am still learning the rope, I did not actively pursue the matter. However, should an opportunity arise and if I am asked to consider, I would certainly consider it.
As for the sharing of my publications, you are free to share whatever you consider worth sharing, as you would do with any other publications worth sharing. What I do not wish to do is to impose on those to whom I have delegated SP an obligation to read my post, upvote and comment, however good my article may be.
In some of my past posts I did not include a copyright notice. Where I did, I licensed my work under the Creative Commons Attribution-ShareAlike 4.0 International (CC BY-SA 4.0) license, which automatically permits anyone to share it on terms as stipulated by the license. For the sake of clarity, I will remember to include the copyright notice in all my future publications.
Have a great weekend, friend.
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Dear @devann
I only realized that I never read your comment. Thank you for your time and effort.
Absolutely. We're think very alike.
Yours
Piotr
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