Description
In the Netherlands, the structure of alternative dispute resolutionin the area of financial services has changed considerably in 2007.
Existing schemes for ADR have merged into a new institution, the Financial Services Complaints Tribunal (KiFiD). This book describes the development of KiFiD within the framework of European rules for ADR and mediation, and article 6 of the European Convention (Human Rights), and compares its structure with developments in the UK, Germany and Spain regarding ADR for financial services.
In 2005 the Dutch representative organisations of licence holders under the Wfd (Financial Services Act, since 1 January 2007 the Wft, the Financial Supervision Act) signed a declaration expressing their intention to develop a single dispute resolution institution for the financial services market: the Financial Services Complaints Tribunal (KiFiD).
For customers’ complaints about financial services, KiFiD offers facilities for mediation (an ombudsman function) as well as for the extrajudicial settlement of complaints and disagreements (a ‘judging’ function). KiFiD was presented on 1 January 2007 and came into force on 1 April 2007.
This book (issued as a preparatory report for KiFiD) deals with the national and European legal preconditions for the settlement of disagreements in the area of financial services, especially concerning the setting up of KiFiD.
Index
Preface / 9
1 General Remarks regarding ADR in the Netherlands market for financial
services / 11
1.1 Introduction / 11
1.1.1 Complaints body / 11
1.1.2 Complaints and disputes / 11
1.2 KiFiD (Financial Services Complaints Tribunal) and the Financial
Services Act (Wfd)/Financial Supervision Act (Wft) / 16
1.3 The definitions of ‘complaint’ and ‘dispute’ / 19
1.4 The relation between regular courts jurisdiction, supervision of conduct
and alternative disputes settlement / 21
1.5 The (subdistrict) court judge as an alternative for a disputes committee /
28
1.6 Alternative Dispute Resolution (ADR) in one or two phases? / 31
1.7 Handling of complaints and the duty to provide information / 32
1.8 Disciplinary rules and disciplinary proceedings / 34
1.9 Transparency / 39
1.9.1 Defining transparency / 39
1.9.2 Transparency: a popular term / 40
1.9.3 Transparency in the legal sense / 42
1.9.4 Transparency, honesty and unwritten law / 43
2 Dispute settlement bodies in the financial sector / 45
2.1 Insurance Complaints Board Foundation / 45
2.1.1 Introduction / 45
2.1.2 The Insurance Ombudsman / 46
2.1.3 The Insurance Companies Supervisory Board / 49
2.2 Disputes Committee for the Banking Industry / 56
2.2.1 General remarks / 56
2.2.2 Methods / 57
2.2.3 Admissibility / 57
2.2.4 The proceedings / 58
2.3 Complaints and Disciplinary Committee DSI/Appeals Committee DSI / 60
2.3.1 Introduction / 60
2.3.2 DSI Complaints Committee / 62
2.3.3 DSI Appeals Committee / 67
3 Comparative legal perspective / 69
3.1 Ombudsmann für (private) Versicherungen (Germany) / 69
3.1.1 General remarks / 69
3.1.2 The procedure at the Ombudsmann Versicherungen / 71
3.1.3 The judgment of the Ombudsmann Versicherungen / 72
3.2 Financial Ombudsman Service (United Kingdom) / 74
3.2.1 Insurance Ombudsman Bureau / 74
3.2.2 Financial Services and Markets Act 2000 (FSA 2000) / 75
3.2.3 Financial Ombudsman Service (F.O.S.) / 75
3.3 Sistema Arbitral/Comisionados para la Defensa de Servicios Financieros/
Defensor del Cliente (Spain) / 77
3.3.1 General remarks / 77
3.3.2 Sistema Arbitral / 77
3.3.3 Handling complaints and resolving financial disputes / 81
3.3.4 Regulations / 82
3.3.4.1 Internal Complaints Handling / 82
3.3.4.2 Complaints and claims / 82
4 European preconditions for alternative disputes settlement in the financial
service industry / 85
4.1 EU perspective on disputes settlement / 85
4.1.1 General remarks / 85
4.1.2 Mediation / 86
4.1.3 ADR: Green Paper concerning alternative ways of dispute resolution in
the area of civil and commercial law / 88
4.1.4 Other initiatives / 91
4.1.5 FIN-NET / 91
4.1.6 Status of recommendations / 92
4.1.7 Recommendation 98/257/EG / 93
4.1.8 Principles of reliable ADR / 96
4.1.9 ADR and financial services / 97
4.2 Art. 6 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (‘the Convention’) / 98
4.2.1 Introduction / 98
4.2.2 The principle of the right of access to the court / 101
4.2.3 The right to a fair treatment / 102
4.2.4 Publicity of jurisdiction / 104
4.2.5 The right to a trial within a reasonable period of time / 106
4.2.6 The principle of independence and impartiality of the court / 109
5 Disputes and complaints settlement regulations in the Netherlands financial
services branch / 113
5.1 General remarks / 113
5.2 Bfd (Financial Services Regulation) / 113
5.2.1 General remarks / 113
5.2.2 Complaints handling and disputes settlement / 113
5.2.3 Complaints / 114
5.2.4 Disputes settlement / 115
5.2.4.1 Recognition regulation / 115
5.2.4.2 Independence and expertise / 116
5.2.4.3 Regulations / 117
5.2.4.4 Additional terms / 120
5.3 (Draft) Bgfo (Financial Institutes Conduct Supervision Regulation) / 120
5.3.1 General remarks / 120
5.3.2 Recognition regulation / 123
5.3.3 Independence and expertise / 124
5.3.4 Regulation / 125
5.3.5 Further terms / 128
5.4 Comments / 129
6 Options for setting up KiFiD (the Financial Services Complaints Tribunal)
/ 133
6.1 Introduction / 133
6.2 Variant 1: The coexistence of an Ombudsman, a disputes committee and
a disciplinary committee / 134
6.3 Variant 2: An Ombudsman, a disputes committee and a disciplinary committee
also operating as an appeals authority / 135
6.4 Variant 3: An Ombudsman alongside an institution that fulfils both the
disciplinary as well as the disputes handling function / 135
6.5 Variant 4: An Ombudsman alongside an institution performing both disciplinary
and disputes settling functions; the latter two functions being
clearly defined / 136
6.6 The definitive form of KiFiD / 136
6.7 Final remarks / 138
Summary / 141
Annex 1 KiFiD, Financial Services Complaints Tribunal / 157
Annex 2 Regulation Financial Services Complaints Tribunal (KiFiD) / 165
About the author(s)
Marc Hendrikse is Head of Department of the Master Insurance Studies at the UvA Amsterdam Business School, Private Law lecturer at the Department of Private Law A at the University of Amsterdam, researcher at the Amsterdam Institute of Private Law, associate professor of Private Law at the Open University of the Netherlands and deputy judge at the Court of Utrecht.
Jac Rinkes is professor of Private Law at the Open University of the Netherlands and professor of European Consumer Law at the University of Maastricht. He is also a deputy judge at the Arnhem Court of Appeal.