GEN 9 GEN 9 Complaints Handling and Dispute Resolution
GEN 9.1 GEN 9.1 Application
This chapter applies to every
Authorised Firm, other than a Representative Officeand a Credit Rating Agency, carrying on a Financial Servicein or from the DIFCas follows:(a) GEN Section 9.2 applies to an Authorised Firmcarrying on a Financial Servicewith or for a Retail Client;(b) GEN Section 9.3 applies to an Authorised Firmcarrying on a Financial Servicewith or for a Professional Client; and(c) GEN Section 9.4 sets out additional requirements that apply to an Authorised Firm carrying on the Financial Service of Providing Money Services or Arranging or Advising on Money Services.
GEN 9.2 GEN 9.2 Complaints handling procedures for Retail Clients
Written Complaints handling procedures
Authorised Firmmust have adequate policies and procedures in place for the investigation and resolution of Complaintsmade against it by Retail Clients, and the manner of redress (including compensation for acts or omissions of the Authorised Firm).
GEN 9.2.2 GEN 9.2.2
The policies and procedures for handling
Complaintsmust be in writing and provide that Complaintsare handled fairly, consistently and promptly.
GEN 9.2.2 Guidance1. In establishing adequate
Complaintshandling policies and procedures, an Authorised Firmshould have regard to:a. the nature, scale and complexity of its business; andb. its size and organisational structure.2. In handling Complaints, an Authorised Firmshould consider its obligations under the Data Protection Law 2007.3. An Authorised Firmshould consider its obligations under GEN Rule 5.3.19 and accompanying guidance.4. The DFSAconsiders 60 days from the receipt of a Complaintto be an appropriate period in which an Authorised Firmshould be able to resolve most Complaints.However, Complaintsrelated to the Provision of Money Services or Arranging or Advising on Money Services should generally be resolved within 15 business days – see GEN Rule 220.127.116.11. In accordance with COB Rule 2.1.2(5), a Member, Beneficiary or Participating Employer of an Employee Money Purchase Scheme is treated as a Retail Client of an Operator or Administrator of the Scheme. Therefore, the complaints handling procedures in this chapter relating to Retail Clients will apply to those persons.
On receipt of a
Complaint, an Authorised Firmmust:(a) acknowledge the Complaintpromptly in writing;(b) provide the complainant with:(i) the contact details of any individual responsible for handling the Complaint;(ii) key particulars of the Authorised Firm's Complaintshandling procedures; and(iii) a statement that a copy of the procedures is available free of charge upon request in accordance with GEN Rule 9.2.11; and(c) consider the subject matter of the Complaint.
GEN 9.2.4 GEN 9.2.4
Where appropriate, an
Authorised Firmmust update the complainant on the progress of the handling of the Complaint.
GEN 9.2.4 Guidance1. The
DFSAconsiders 7 days to be an adequate period in which an Authorised Firmshould be able to acknowledge most Complaints.2. The DFSAexpects an update to be provided to the complainant in circumstances where the resolution of the Complaintis taking longer than 30 days.
Resolution of Complaints
Upon conclusion of an investigation of a
Complaint, an Authorised Firmmust promptly:(a) advise the complainant in writing of the resolution of the Complaint;(b) provide the complainant with clear terms of redress, if applicable; and(c) comply with the terms of redress if accepted by the complainant.
GEN 9.2.6 GEN 9.2.6
If the complainant is not satisfied with the terms of redress offered by the
Authorised Firm, the Authorised Firmmust inform the complainant of other avenues, if any, for resolution of the Complaintand provide him with the appropriate contact details upon request.
GEN 9.2.6 Guidance
Other avenues for resolution of a
Complaintmay include an external dispute resolution scheme, arbitration or the DIFC Court.Under GEN Rule 9.4.4 an Authorised Firm Providing Money Services or Arranging or Advising on Money Services is required to ensure that Clients have access to an independent complaints handling service.
Employees handling Complaints
Where appropriate, taking into account the nature, scale and complexity of an
Authorised Firm'sbusiness, an Authorised Firmmust ensure that any individual handling the Complaintis not or was not involved in the conduct of the Financial Serviceabout which the Complainthas been made, and is able to handle the Complaintin a fair and impartial manner.
Authorised Firmmust ensure that any individual responsible for handling the Complainthas sufficient authority to resolve the Complaintor has access to individuals with the necessary authority.
Complaints involving other Authorised Firms or Regulated Financial Institutions
Authorised Firmconsiders that another Authorised Firmor a Regulated Financial Institutionis entirely or partly responsible for the subject matter of a Complaint, it may refer the Complaint, or the relevant part of it, to the other Authorised Firmor Regulated Financial Institutionin accordance with Rule 9.2.10.
GEN 9.2.10 GEN 9.2.10
To refer a
Complaint, an Authorised Firmmust:(a) inform the complainant promptly and in writing that it would like to refer the Complaint, either entirely or in part, to another Authorised Firmor Regulated Financial Institution, and obtain the written consent of the complainant to do so;(b) if the complainant consents to the referral of the Complaint, refer the Complaintto the other Authorised Firmor Regulated Financial Institutionpromptly and in writing;(c) inform the complainant promptly and in writing that the Complainthas been referred and include adequate contact details of any individual at the other Authorised Firmor Regulated Financial Institutionresponsible for handling the Complaint; and(d) continue to deal with any part of the Complaintnot referred to the other Authorised Firmor Regulated Financial Institution, in accordance with this chapter.
GEN 9.2.10 Guidance
The referral of a
Complaintmay involve the transfer of Personal Data, as defined under the Data Protection Law 2007, DIFC Law No 1 of 2007. In this respect, an Authorised Firmshould consider its obligations under the Data Protection Law 2007.
Retail Client awareness
Authorised Firmmust ensure that a copy of its Complaintshandling procedures is available free of charge to any Retail Clientupon request.
Retention of records
Authorised Firmmust maintain a record of all Complaintsmade against it for a minimum period of six years from the date of receipt of a Complaint.
This record must contain the name of the complainant, the substance of the
Complaint, a record of the Authorised Firm'sresponse, and any other relevant correspondence or records, and the action taken by the Authorised Firmto resolve each Complaint.
Systems and controls
GEN 9.2.14 GEN 9.2.14
In accordance with GEN Rules 5.3.4 and 5.3.5, an
Authorised Firmmust put in place adequate systems and controls in order for it to identify and remedy any recurring or systemic problems identified from Complaints.
GEN 9.2.14 Guidance
Authorised Firmshould consider whether it is required to notify the DFSA, pursuant to Rule 11.10.7, of any recurring or systemic problems identified from Complaints.
Authorised Firmmay outsource the administration of its Complaintshandling procedures in accordance with GEN Rule 5.3.21.
GEN 9.3 GEN 9.3 Complaints recording procedures for Professional Clients
Authorised Firmmust have adequate policies and procedures in place for the recording of Complaintsmade against it by Professional Clients.
GEN 9.3.2 GEN 9.3.2
Authorised Firmmust maintain a record of any Complaintmade against it for a minimum period of six years from the date of receipt of the Complaint.
GEN 9.3.2 Guidance
Depending on the nature, scale and complexity of its business, it may be appropriate for an
Authorised Firmto have in place a suitable Complaintshandling procedure for Professional Clientsin order to ensure that such Complaintsare properly handled and remedial action is taken promptly. Such Complaintshandling procedures would be expected to include provisions about the independence of staff investigating the Complaintand bringing the matter to the attention of senior management.
GEN 9.4 GEN 9.4 Additional requirements for complaints related to Money Services
This section applies to a complaint made by a Client against an Authorised Firm relating to the Financial Service of:(a) Providing Money Services; or(b) Arranging or Advising on Money Services.
A requirement in this section does not apply in relation to a Market Counterparty, if the Market Counterparty has given prior notice in writing to the Authorised Firm that it has elected to waive the requirement.
Complaints to be resolved within 15 business days
GEN 9.4.3(1) An Authorised Firm must, except as provided in (2), advise the complainant in writing of the resolution of the Complaint and, if applicable, provide the complainant with clear terms of redress no later than 15 business days after the day on which it received the Complaint.(2) If the Authorised Firm cannot comply with (1) for reasons beyond its control, it must send a holding reply, clearly indicating the reasons for the delay and specifying the deadline by which the complainant will receive a full reply.(3) When the Authorised Firm advises the complainant of the outcome of a Complaint, it must inform the Client in writing:(a) that the Client may refer the matter to the independent complaints handling service referred to in GEN Rule 9.4.4 if the Client is not satisfied with the outcome;(b) details of the independent complaints handling scheme and how the Client may access the service; and(c) that the firm will pay the costs of the application fee to the scheme in the circumstances specified in GEN Rule 9.4.4 (c).
Independent complaints handling service
GEN 9.4.4 GEN 9.4.4An Authorised Firm must:(a) ensure that Clients have access to an independent complaints handling service that can determine Complaints where a Client is not satisfied with the outcome of the firm’s resolution of a Complaint;(b) ensure that the service referred to in (a) is easily accessible to its Clients; and(c) bear the cost of any application fee payable for the use of the service referred to in (a), unless the Complaint is found to be unsuccessful, in which case the firm may recover the cost of that fee from the Client.
GEN 9.4.4 Guidance
An independent complaints handling service referred to in GEN Rule 9.4.4 may be a small claims tribunal provided that the tribunal has jurisdiction to hear and determine disputes of the nature covered under this section i.e. relating to money services.