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.
Preface
1 General Remarks regarding ADR in the Netherlands market for financial services
1.1 Introduction
1.2 KiFiD (Financial Services Complaints Tribunal) and the Financial Services Act (Wfd)/Financial Supervision Act (Wft)
1.3 The definitions of ‘complaint’ and ‘dispute’
1.4 The relation between regular courts jurisdiction, supervision of conduct and alternative disputes settlement
1.5 The (subdistrict) court judge as an alternative for a disputes committee
1.6 Alternative Dispute Resolution (ADR) in one or two phases?
1.7 Handling of complaints and the duty to provide information
1.8 Disciplinary rules and disciplinary proceedings
1.9 Transparency
2 Dispute settlement bodies in the financial sector
2.1 Insurance Complaints Board Foundation
2.2 Disputes Committee for the Banking Industry
2.3 Complaints and Disciplinary Committee DSI/Appeals Committee DSI
3 Comparative legal perspective
3.1 Ombudsmann für (private) Versicherungen (Germany)
3.2 Financial Ombudsman Service (United Kingdom)
3.3 Sistema Arbitral/Comisionados para la Defensa de Servicios Financieros/Defensor del Cliente (Spain)
4 European preconditions for alternative disputes settlement in the financial service industry
4.1 EU perspective on disputes settlement
4.2 Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’)
5 Disputes and complaints settlement regulations in the Netherlands financial ervices branch
5.1 General remarks
5.2 Bfd (Financial Services Regulation)
5.3 (Draft) Bgfo (Financial Institutes Conduct Supervision Regulation)
5.4 Comments
6 Options for setting up KiFiD (the Financial Services Complaints Tribunal)
6.1 Introduction
6.2 Variant 1: The coexistence of an Ombudsman, a disputes committee and a disciplinary committee
6.3 Variant 2: An Ombudsman, a disputes committee and a disciplinary committee also operating as an appeals authority
6.4 Variant 3: An Ombudsman alongside an institution that fulfils both the disciplinary as well as the disputes handling function
6.5 Variant 4: An Ombudsman alongside an institution performing both disciplinary and disputes settling functions; the latter two functions being clearly defined
6.6 The definitive form of KiFiD
6.7 Final remarks
Summary
Annex 1 KiFiD, Financial Services Complaints Tribunal
Annex 2 Regulation Financial Services Complaints Tribunal (KiFiD)