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From the magazine SZW-RSDA 1/2018 | S. 48-66 The following page is 48

Le régime de responsabilité civile en matière d’émissions publiques de jetons digitaux (ICO)

Initial Coin Offerings (ICOs) consist of an innovative form of capital raising. In the digital era, it has become technically possible to raise substantial funds within a very short period of time. This paper analyses the civil liability regime applying to misrepresentations communicated to investors acquiring tokens in an ICO. Pursuant to the prospectus liability provisions of the Swiss Code of Obligations (CO), any actor participating in the drafting or dissemination of prospectuses is liable for untrue, misleading representations or omissions of a material fact in prospectuses or similar statements. We argue that this regime applies by analogy to ICOs. This study portrays the various business models prevailing in the digital marketplace in order to discuss the legal qualification of tokens issued in an ICO. Prospectus requirements are detailed with a view to assessing how to translate them into the world of ICOs. We also address the elements of prospectus liability. In particular,…

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