Tuesday, June 30, 2009
Administration of Justice (1)
Singapore has built a strong reputation for observing the rule of law and having a fair and efficient administration of justice. It has won high international recognition for a transparency, consistency and justice in handling of commercial affairs.
Under the rule of law, all parties can look towards the law to be applied in a consistent and fair manner, as it is written, and that the law can be interpreted in the right spirit, to serve justice and fairness to all parties.
In the saga involving the Lehman Minibonds and other credit linked notes, the letter of the law are clearly spelled in the Securities and Futures Act and the Financial Advisers Act. These law requires the financial institutions to make proper disclosure about the financial product and imposes a duty on financial advisers to give appropriate advice to consumers.
I could not find any part of these law that define that people should be treated differently according to their "vulnerability", standard of education or age or other factors.
I do not quarrel with the generous decision of the financial institutions to give full compensation to the "vulnerable" investors. I also accept that it is within their prerogative to take the commercial approach to reject the complaints from the "non-vulnerable" investors.
However, I believe that the aggrieved investors, being ordinary people, have the right to expect justice to be administered according to the rule of law, especially from the following parties:
a) The regulator, who has the duty to investigate and prosecute any party that is found to have breached the law
b) The judges, who have the duty to decide in accordance to the letter and spirit of the law. This duty also falls on the Financial Industry Dispute Resolution Center (FIDReC).
I hope that FIDReC will adjudicate according to the law, and not principles of “vulnerability” as this is not stated in the law.
I believe that the investors and the distributors have to share the blame equally for the disastrous mistake. It would be most unfair, if FIDReC were to rule that the investors are fully responsible and that the distributors are not culpable (as they have failed in their duty to give proper advice to the investors).
Although the distributors have asked the investors to sign a disclaimer, this does not absolve the distributors from their legal duty under the Financial Advisers Act. I hope that FIDREC will take a similar view, in the interest of justice.
Tan Kin Lian
Under the rule of law, all parties can look towards the law to be applied in a consistent and fair manner, as it is written, and that the law can be interpreted in the right spirit, to serve justice and fairness to all parties.
In the saga involving the Lehman Minibonds and other credit linked notes, the letter of the law are clearly spelled in the Securities and Futures Act and the Financial Advisers Act. These law requires the financial institutions to make proper disclosure about the financial product and imposes a duty on financial advisers to give appropriate advice to consumers.
I could not find any part of these law that define that people should be treated differently according to their "vulnerability", standard of education or age or other factors.
I do not quarrel with the generous decision of the financial institutions to give full compensation to the "vulnerable" investors. I also accept that it is within their prerogative to take the commercial approach to reject the complaints from the "non-vulnerable" investors.
However, I believe that the aggrieved investors, being ordinary people, have the right to expect justice to be administered according to the rule of law, especially from the following parties:
a) The regulator, who has the duty to investigate and prosecute any party that is found to have breached the law
b) The judges, who have the duty to decide in accordance to the letter and spirit of the law. This duty also falls on the Financial Industry Dispute Resolution Center (FIDReC).
I hope that FIDReC will adjudicate according to the law, and not principles of “vulnerability” as this is not stated in the law.
I believe that the investors and the distributors have to share the blame equally for the disastrous mistake. It would be most unfair, if FIDReC were to rule that the investors are fully responsible and that the distributors are not culpable (as they have failed in their duty to give proper advice to the investors).
Although the distributors have asked the investors to sign a disclaimer, this does not absolve the distributors from their legal duty under the Financial Advisers Act. I hope that FIDREC will take a similar view, in the interest of justice.
Tan Kin Lian
Brain Workout in The New Paper (weekend)
Dear Mr. Tan
I like the Brain Workout that appear in The New Paper every weekend. But, I am not able to find the book in the major bookstores. Where can I buy them?
REPLY
You can buy them from this website. You pay the same price as in the bookstore. There is no additional charge for postage delivery in Singapore. Enjoy the puzzles.
You can try the online version of the puzzles here, for free.
The Standard:Banks, SFC meet to thrash out Lehman deal
30 June 2009
Representatives of 16 Lehman Brothers products distributor banks yesterday met with the Securities and Futures Commission in a bid to thrash out a settlement, sources said.
But no agreement was reached as yesterday's meeting was only of a "touch base" nature.
Bank of China (Hong Kong) (2388), the largest distributor of Lehman minibonds, was among the group to present the banks' proposal for settlement, according to sources.
Lenders were supporting BOCHK's proposal to offer an average of 60 percent of the principal invested as settlement and about 70 percent to those aged 65 or above.
Banks are also willing to repay the difference if collateral were sold at a higher price in the future, sources said.
However, some lenders also expressed their concern that the sum to be repaid was much higher when compared with penalties according to rules.
According to an SFC ordinance, if a bank is penalized for failing to reach a settlement, the total penalty would only be three times the commission earned.
As the total industry commission for distributing Lehman Brothers products was about HK$300 million, banks would only need to pay about HK$900 million and this is much less than that BOCHK's proposal, they said.
A spokesman for the SFC declined to comment, while one banker source said he hopes there may be breakthrough soon, saying: "Hopefully common ground can be reached in coming days."
Other sources said there might be a chance the banking group and the SFC could reach a compromise as Martin Wheatley, the SFC's chief executive, said last Tuesday the Sun Hung Kai Investment method "was not the only model" for resolution.
As the Lehman-related products sold were worth about HK$12 billion, a settlement at 60 percent would mean distributor lenders as a whole would pay out about HK$5 billion.
Representatives of 16 Lehman Brothers products distributor banks yesterday met with the Securities and Futures Commission in a bid to thrash out a settlement, sources said.
But no agreement was reached as yesterday's meeting was only of a "touch base" nature.
Bank of China (Hong Kong) (2388), the largest distributor of Lehman minibonds, was among the group to present the banks' proposal for settlement, according to sources.
Lenders were supporting BOCHK's proposal to offer an average of 60 percent of the principal invested as settlement and about 70 percent to those aged 65 or above.
Banks are also willing to repay the difference if collateral were sold at a higher price in the future, sources said.
However, some lenders also expressed their concern that the sum to be repaid was much higher when compared with penalties according to rules.
According to an SFC ordinance, if a bank is penalized for failing to reach a settlement, the total penalty would only be three times the commission earned.
As the total industry commission for distributing Lehman Brothers products was about HK$300 million, banks would only need to pay about HK$900 million and this is much less than that BOCHK's proposal, they said.
A spokesman for the SFC declined to comment, while one banker source said he hopes there may be breakthrough soon, saying: "Hopefully common ground can be reached in coming days."
Other sources said there might be a chance the banking group and the SFC could reach a compromise as Martin Wheatley, the SFC's chief executive, said last Tuesday the Sun Hung Kai Investment method "was not the only model" for resolution.
As the Lehman-related products sold were worth about HK$12 billion, a settlement at 60 percent would mean distributor lenders as a whole would pay out about HK$5 billion.
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