Compulsory financial ombudsman under the regulator’s umbrella: Testing a new model of dispute settlement
DOI:
https://doi.org/10.21638/spbu25.2022.403Abstract
In post-Soviet countries, the courts are not always effective in resolving consumer disputes. I compare the models of organizing the work of financial ombudsmen in Russia, Kazakhstan, Azerbaijan and Armenia, as well as plans for its implementation in Kyrgyzstan and Belarus. Models of compulsory mediation in a number of European jurisdictions are also analyzed. In some countries there is a tendency towards an increase in the influence of the regulator on the work of financial ombudsmen. The reform of the Russian financial ombudsman is the first attempt at introducing a new compulsory ombudsman model for financial markets. It will be a mandatory stage initiation of a lawsuit in a civil court. The new Russian model is unique, differing both from the models established in the countries of the European Union (centralized, decentralized, professional association), as well as models implemented in other post-Soviet countries. The Russian financial ombudsman model is essentially a combination of Italian compulsory mediation on the basis of coercion before the dispute is considered by the court, and the English financial ombudsman on the basis of a vertical system headed by a sole chairman who is de facto appointed by the financial services regulator, while membership in this system of financial institutions that provide regulated services is generally mandatory. Whether the compulsory financial ombudsman under the Central Bank ‘umbrella’ will manifest itself positively or negatively will determine the possibility of extending this scheme to other categories of consumer disputes in the financial markets and such as housing construction and repair, utilities, and telecommunications with many small and medium consumer claims. Furthermore, since a number of post-Soviet countries continue to rely on the Russian experience, in such countries there may be an expansion of mandatory ombudsmen under the umbrella of regulators as well.
Keywords:
consumer protection, compulsory financial ombudsman, regulatory body competence, alternative dispute resolution, mandatory pre-trial procedure
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De Palo, Giuseppe. 2018. A Ten-Year-Long “EU Mediation Paradox” When an EU Directive Needs To Be More …Directive. November. Available at: https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/608847/IPOL_BRI(2018)608847_EN.pdf (accessed: 25.05.2022).
Chirkov, Aleksei V. 2013. Problems of realization of legislation on national payment system with regard to responsibility of banks in settlement legal relations. Bankovskoe Pravo 5: 63–68. (In Russian)
Gatsalov, Kirill A. 2010. Insurance Ombudsman in Russia: possible ways and prospects of development. Iuridicheskaia i pravovaia rabota v strakhovanii 2: 41–51. (In Russian)
Gatsalov, Kirill A. 2009. Insurance Ombudsman: Insurance Dispute Resolution practice. Iuridicheskaia i pravovaia rabota v strakhovanii 4: 91–100. (In Russian)
Ivanov, Oleg M. 2013. Legal nature and obligatory of financial ombudsman's decisions. Arbitrazhnyi i Grazhdanskii Protsess 1: 2–8. (In Russian)
Kandyba, Maxim A., Chirkin Dmitriy V. 2012. Financial ombudsman: foreign experience. Bankovskoe Pravo 6: 14–22. (In Russian)
Kirkham, Richard. 2018. A Study into Ombudsman Judicial Review. Online appendix: Evidence of Result. University of Sheffield. Available at: https://www.sheffield.ac.uk/polopoly_fs/1.792260!/file/researchstudy2018.pdf (accessed: 25.05.2022).
Korovyakovskiy, Denis G. 2014. On certain alternative means of dispute resolution (ADR) of states — members of the WTO (as exemplified by the USA, France, Germany, Great Britain and the Russian Federation). Rossiyskiy Sudya 11:16–19. (In Russian)
Lohmanov, Dmitriy V. 2015. Introduction of the institute of financial ombudsman in the Russian Federation: issues of theory and practice. Bankovskoe Pravo 2: 45–50. (In Russian)
Matteucci, Giovanni. 2022. Compulsory Civil Mediation in Italy 2011/2021. 24 May 2022. Available at: https://www.mediate.com/compulsory-civil-mediation-in-italy-2011–2021 (accessed: 25.05.2022).
Medvedev, Pavel A. 2016. The creditworthiness of the population is a threat to the country's financial system. Is there a way out? Predprinimatelskoe pravo: prilozhenie ‘Pravo i Biznes’ 2: 2–3. (In Russian)
Ponamorenko, Vladislav E., Chetverikov, Artem O., Karpov, Leonid K. 2014. Banking Integration in the EU and CES: Opportunities for Legal Transplantation. Moscow, Iustitsinform Publ. (In Russian)
Ruchkina, Gulnara F. 2019. Financial commissioner in the Russian Federation: some issues of legal regulation of activities. Bankovskoe Pravo 5: 7–14. (In Russian)
Sergeev, Valeriy V. 2010. On the meeting of the commission on legislation in the sphere of activities of credit organizations and financial markets of the Russian bar association. Bankovskoe Pravo 4: 36–44. (In Russian)
Sevastyanova, Yulia V. 2013. Compensation for losses caused by unauthorized debiting of money from a card account. Iuridicheskaia rabota v kreditnoi organizatsii 2: 85–96. (In Russian)
Shabanova, Inara I. 2014. Powers of financial ombudsmen in pre-trial dispute resolution. Iuridicheskaia rabota v kreditnoi organizatsii 3: 21–28. (In Russian)
Tjersland, Odd, Gulbrandsen, Wenke, Haavind, Hanne. 2015. Mandatory Mediation outside the Court: A Process and Effect Study. Conflict Resolution Quarterly 33: 19–34. https://doi.org/10.1002/crq.21129
Vahrenwald, Arnold. 2000. Out-of-court dispute settlement systems for e-commerce. Report on legal issues. Part III: Types of Out-of-Court Dispute Settlement. Joint Research Centre. Available at: https://tbplaw.com/data/part3.pdf (accessed: 25.05.2022).
Van, Rhee C. H. 2021. Mandatory Mediation before Litigation in Civil and Commercial Matters: A European Perspective. 4(12). Access to Justice in Eastern Europe: 7–24. https://doi.org/10.33327/AJEE-18-4.4-a000082
Vishnevskiy, Aleksandr A. 2018. Financial attorney vs financial ombudsman: effectiveness of institutional structures for protecting consumers of financial services. Zakon 9: 58–65. (In Russian)
Vishnevskiy, Aleksandr A. 2013. Modern Banking Law: Banking and Client Relations: Comparative Legal Essays. Moscow, Statut Publ. (In Russian)
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