12.07.2015 Views

Derivatives in Plain Words by Frederic Lau, with a ... - HKU Libraries

Derivatives in Plain Words by Frederic Lau, with a ... - HKU Libraries

Derivatives in Plain Words by Frederic Lau, with a ... - HKU Libraries

SHOW MORE
SHOW LESS
  • No tags were found...

Create successful ePaper yourself

Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.

22. Authorized <strong>in</strong>stitutions should also be aware that the degree of complexityof the transaction and the level of sophistication of the counterparty arefactors which a court may take <strong>in</strong>to account <strong>in</strong> consider<strong>in</strong>g whether the<strong>in</strong>stitution has <strong>in</strong> practice assumed an advisory role <strong>in</strong> relation to thecounterparty (even if no explicit agreement to that effect has beenentered <strong>in</strong>to). A wider duty of care may be allowed <strong>by</strong> the courts <strong>in</strong>a- case <strong>in</strong>volv<strong>in</strong>g a highly sophisticated transaction and a relativelyunsophisticated counterparty. In those circumstances, there is a possibilitythat the courts may be more likely to accept evidence that an authorized<strong>in</strong>stitution had assumed a responsibility to advise the counterparty onissues such as risk and suitability. It is also noted that where an <strong>in</strong>stitutionprovides <strong>in</strong>formation to enable its counterparties to understand thenature and risks of a transaction, it should:a) ensure that the <strong>in</strong>formation is accurate;b) ensure that <strong>in</strong>formation <strong>in</strong> any economic forecast is reasonable, basedon proper research and reasonable grounds; andc) present the downside and upside of the proposal <strong>in</strong> a fair andbalanced fashion.23. To guard aga<strong>in</strong>st the possibility of misunderstand<strong>in</strong>gs, particularly <strong>with</strong>private bank<strong>in</strong>g customers, all significant communications between the<strong>in</strong>stitution and its customers should be <strong>in</strong> writ<strong>in</strong>g or recorded <strong>in</strong> meet<strong>in</strong>gnotes. Where it is necessary for an account manager to speak to thecustomer <strong>by</strong> telephone, such conversations should be tape-recorded.24. Institutions should establish <strong>in</strong>ternal procedures for handl<strong>in</strong>g customerdisputes and compla<strong>in</strong>ts. They should be <strong>in</strong>vestigated thoroughly andhandled fairly and promptly. Senior management and the ComplianceDepartment/Officer should be <strong>in</strong>formed of all customer disputes andcompla<strong>in</strong>ts at a regular <strong>in</strong>terval. Cases which are considered material,e.g. the amount <strong>in</strong>volved is very substantial, should be reported to theboard and the MA.Guidel<strong>in</strong>e on Risk Management of <strong>Derivatives</strong> and Other Traded Instruments

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!