30th Nov 2017 | Articles

This is the second article titled Tools for culture change in the Capital Markets Law Journal (CMLJ) in which a series of 3 written by Richard Samuel putting forward the proposal for a Financial Services Tribunal. To date, the article has attracted over 2,500 downloads and the notion will be debated in Parliament January 2018.


KEY POINTS

  • Following January’s article entitled ‘Tools for Changing Banking Culture: FCA Are You Listening?’ (2016) 11(2) Capital Markets Law Journal 129 (in which this author criticised the FCA’s ad hoc swaps mass redress system and suggested the FCA set up a standing financial services disputes tribunal modelled on the Employment Tribunals) Dr Bailey, the new CEO of the Financial Conduct Authority (FCA), accepted that its administrative ad hoc mass redress schemes have not been successful, in particular for swaps.
  • Dr Bailey has now accepted the principle that the FCA should empower an independent entity to resolve disputes between banks and consumers and should not seek to involve itself in their determination. He is considering his options.
  • This article analyses how and why the FCA over-extended itself by entering the arena of dispute resolution. It explores why the FCA’s efforts failed to satisfy market participants and undermined the confidence needed for retail markets to function efficiently—in particular by creating the impression of corporatism.
  • The article explains how and why common law dispute resolution systems generate market confidence. It also notes that the department of state behind the success of the common-law-based Employment Tribunals 50 years ago—now called Business, Energy and Industrial Strategy—has recently applied the same common law principles for dispute resolution in service of its competition objective by expanding the Competition Appeal Tribunal.
  • The article concludes by suggesting that the FCA should endow its independent dispute resolution
    authority with the same common law characteristics. It suggests three ways the FCA might do so.

Please click here to read the article.


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