New type of securities introduced
A new category of (registered uncertificated) securities, ledger-based securities, increasing legal certainty and facilitating trading of rights digitally, was brought into existence through the DLT Act (Federal Act on the Adaptation of Federal Law to Developments in Distributed Ledger Technology) on September 25, 2020 (expected in full force on August 1, 2021).
Ledger-based securities (Registerwertrechte) form part of DLT securities and can be traded on DLT Trading Facilities.
A ledger-based security (uncertificated register security) is formed through an agreement between the parties (Registration Agreement), with rights registered on, claimed, and transferred to others solely via a securities ledger that meets certain (technical) requirements. An otherwise written assignment is not required for the transfer.
Specifically, the securities ledger (the register) shall fulfil the following four requirements:
- Power of Disposal: Technologically, give only creditors (e.g. owner of a token) the power to dispose of the rights (which debtors will lack). This power of disposal has to be technically possible and not only promised by contract;
- Integrity: The ledger`s integrity is protected from unauthorized modification through adequate technical and organisational measures (e.g. simultaneous use by several independent users);
- Publicity: The content of the rights, the operation of the ledger, and the Registration Agreement are recorded/made available in the ledger itself or in supporting (linked) associated data;
- Independent access: Creditors themselves can view the relevant information, including ledger entries, and check the integrity of ledger contents, without the use of a third party.
The debtor must ensure that the ledger operates according to the Registration Agreement.
Debtor’s Responsibilities and Protections
The debtor has the right and responsibility to perform only to the creditor as named in the securities ledger and is excused if the actual creditor is not the indicated creditor (unless gross negligence or malice).
A good faith buyer is also protected if the seller-creditor named in the securities ledger lacked the right to dispose of the security. In a dispute over the same right, a good faith buyer of a certificated security, however, prevails over a good faith buyer of a ledger-based security.
The debtor has a duty to inform each buyer of the content of the security, the functioning of the ledger and measures taken to protect its integrity, and is liable to creditor for damage arising from inaccurate or misleading information provided (unless acted with due diligence). Such liability cannot be limited or excluded.
As a security, there exists the duty to publish a prospectus beforehand unless exempted.
Financial service providers, however, do not have a duty to join an ombudsman as to institutional and professional clients.