FINMA’s current legal assessment is that in case of the bankruptcy of a supervised entity, staked
crypto assets should be segregated from the bankruptcy estate and returned to the custody account
holder provided that the following conditions are met:
- the customer has given a specific instruction about the type and number of crypto assets to be staked;
- appropriate steps have been taken to ensure that the crypto assets placed on a particular validator address, and a particular withdrawal address after unstaking, can be allocated unambiguously to the customer;
- the customer is informed transparently and clearly of all risks (including slashing, lock-up periods and risks relating to the legal uncertainties in the event of bankruptcy);
- appropriate steps are taken to mitigate the operational risks of operating a validator node (including business continuity management), in order to avoid slashing and other penalties; and
- a Digital Assets Resolution Package (DARP) is prepared to ensure adequate risk management