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Man, no longer young, lives in the North. This is the identity of those who have appealed to arbitrators in financial disputes in investment contexts, from the ACF 2024 report (see Plus 24 of 30 March 2024), presented on 18 April in Rome by its President, Gianpaolo Edoardo Barbuzzi. One of the notable figures of activity related to 2023 is the drop in the number of appeals below 1,000 (which was also the initial estimate on which the ACF structure was “based”).
Compared to this, usually elderly client, the ACF recommends paying more attention to the time of the intermediary, especially at the analytical stage: it is no coincidence that an octogenarian is considered an elderly client. The senior profile of long-term investments is cited, whose profile, in the view of the referee, is “at least superficial, if not opportunistic and instrumental in tone”.
Number
In 2023, the ACF received 963 appeals but subsequently resolved 1,237 of them, partially clearing the backlog of cases accumulated in previous years and providing compensation to clients of more than 13 million euros. In particular, in the first year of activity, the ACF was hit by the “aftermath” of the series of disputes related to the placement of the Bank of Venice and the banks settled under the LCA, and once this wave passed, the situation was resolved in figures that were considered more physiological.
In any case, in the seven years of ACF activity, more than 10,250 proceedings have been concluded. The acceptance rate of appeals remains high: 56.8%. This percentage is quite remarkable even when compared with the overall average of 64.1% for the seven years of activity. By the end of 2023, the total amount confirmed to date for depositors will amount to 156 million euros, with an average compensation of nearly 35,000 euros per person (but the average claim is about 56,000 euros, down from about 50,000 successful appeals). In addition, the percentage of voluntary enforcement of decisions by intermediaries remains high – excluding certain series lines that are finally exhausted – 95.5% of appeals are enforced by the parties involved. In addition, in 2023, 86 intermediaries were summoned to make statements to the arbitrators on their actions, bringing the total number of intermediaries involved in cases from 2017 to date to 238. In comparison, there are 1,325 intermediaries participating in the ACF system.
Analysis and applicability
The ACF condemns the attitude of intermediaries that – as already mentioned – pays little attention to the client profiling phase, requiring appropriate measures to verify the reliability, accuracy and coherence of the information collected (which the client must provide so that they are correct, updated and complete). To do this, Babuzi said: “The questionnaire must be based on a set of appropriate, coherent and important questions, such as revealing the investor’s true situation.
To this end, we would like intermediaries to adopt a standard and commonly used analytical questionnaire format, on the basis of which we can provide our empirical contribution”. Suitability assessment can also be done better (and must be done better): “It can only play its proper function if it expresses a motivated, non-absolute judgment, which clearly explains why the investment is considered consistent with the client’s objectives. “Goals, consider the information used for this purpose and avoid resorting only to generic expressions.
If pre-formulated statements are used, care must be taken to ensure that they are sufficiently detailed. On these assumptions, a consultative relationship characterised by the pervasive use of standardised expressions would ultimately detract from the purpose of the Act and could not be said to be functional for that purpose”.
Ambiguous terms
The ACF also condemned the use of some contractual clauses, “characterized by the complete exemption of the intermediary’s liability in case of failure of the online operating platform, without indicating a restoration clause, nor alternative channels to guarantee operational continuity”. An irrefutable judgment on this profile: “Whatever the possible vexatious profile – says Babuzi – at the current and irreversible stage of migration of online transactions, such a forecast is first of all untimely and in any case shows that. In this context, it ultimately transforms the client’s position from a weak contractor to an indefinite hostage. Moreover, in the context of financial markets, the time factor is crucial, seconds are like hours, hours are like days, and so on. “
Better company
Most appellants (more than 60%) are assisted by professionals, usually lawyers. Although the presence of an “advocate” is not required for appeals to the ACF, as the parties can appeal individually. However, in addition to the known financial shortcomings of the investor, there is also the issue of the relevance of the amounts involved (as mentioned above) and the complexity of the matters handled by the arbitrators. However, it must be pointed out that if you think that the situation requires the presence of an advocate, it is best to involve an advocate from the complaint to the intermediary, as a condition for the subsequent transfer to the arbitrator. In fact, the complaint and the appeal must necessarily involve the same issue.
Furthermore, during the recent Rispamio furniture fair in Milan, President Babuzi also asked consumer associations to step up their intervention efforts, which in many cases could provide effective assistance to appellants.
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