Issue link: https://maltatoday.uberflip.com/i/1459407
maltatoday | SUNDAY • 13 MARCH 2022 15 LAW COMMERCIAL THE Office of the Arbiter for Financial Services is a self-gov- erning and autonomous insti- tution with the ability to arbi- trate, investigate, and resolve complaints lodged by eligible customers against financial ser- vices providers regulated by the Malta Financial Services Au- thority (MFSA), Malta's finan- cial services regulator. The role of the Arbiter itself stems from the Arbiter for Financial Servic- es Act Chapter 555 of the Laws of Malta. It provides the neces- sary legal framework for the ap- pointment, functions, powers, and competence of the Arbiter. The role of the Arbiter and his competence at law in carrying out his own investigations was deliberated in a judgement deliv- ered by the Court of Appeal (In- ferior Jurisdiction) in Christine Helen Morrison -v- Momentum Pensions Malta Limited on the 23rd February 2022. The Court was presided over by Mr Justice Lawrence Mintoff. This case relates to the loss suffered by the respondent of an appeal, Morrison from the in- vestment in a retirement scheme managed by the appellant com- pany, of the life insurance policy issued by Skandia International which later became known as Old Mutual International which policy was known as the Execu- tive Investment Bond. This oc- curred after the respondent had consulted Continental Wealth Management which she had ap- pointed as her financial advisor for the purpose of investing the premium of that policy. In deliberating the second ag- gravation of the appellant com- pany, Momentum Pensions Malta Limited , that the Arbiter concluded that Momentum is to bear partial responsibility of the losses incurred by the complain- ant and attributes responsibility at 70% of the losses incurred, the Court briefly delved into the role of the Arbiter and his power to investigate. The Court here considered what was pointed out by the ap- pellant company that the Arbiter decided to voluntarily investi- gate the investments by sourc- ing their fact sheets. The Court also considered the Arbiter's observation saying that this fact certainly did not help the appel- lant's defence, where it is still questionable whether in so do- ing it concealed details or infor- mation which were not in favour of its defence. As defined by Article 25 of Cap.555, the Arbiter for Finan- cial Services Act, the Court fur- ther considered that the Arbiter did not do anything outside of his competence which does not allow him to seek additional in- formation. There was no doubt to ensure that he was deciding the complaint within the param- eters of para (b) of sub-article 19 (3) of the same law, which states, "In carrying out his functions under sub-article (1), the Arbiter shall ... determine and adjudge a complaint by reference to what, in his opinion, is fair, equitable and reasonable in the particular circumstances and substantive merits of the case." The Court noted that the result of his probe can only show how right he was in not interrupting his investiga- tion due to the limited informa- tion which was available to him. The appellant company also complained that it never had the opportunity to take cognisance of the information elevated from the fact sheets, but it follows from what the Arbiter stated that the information was not even diffi- cult to obtain. In fact, one could have acquired this information through a simple online search. This information was therefore available to the public, including to the appellant company. In doing so, the appellant com- pany also had every opportuni- ty, but after all failed to do so, to challenge that information obtained. However, the Court considers that if it were to be- lieve that the appellant company never had this information at its disposal, indeed it would be in breach of any bonus paterfamil- ias obligation. In other words, this informa- tion was not concealed from the appellant company and any rea- sonable man could have had ac- cess to it. Whilst the Court upheld the Arbiter's decision in its entirety it, the Court further commented by applauding the Arbiter's con- cise and diligent decision. The Court dismissed the appeal and confirmed the Arbiter's decision. The Arbiter for Financial Services and competence for own investigations LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates EY and Hult International Business School announce new masters in sustainability EY, in association with Hult International Business School, today announces a fully ac- credited Masters in Sustaina- bility, dedicated exclusively to EY people (312,000). It will be free of charge and available to all, regardless of rank, tenure or location. The new qualification is be- ing launched alongside a re- cent survey amongst EY peo- ple across the globe that found nearly three-quarters (74%) want to participate in activities that have a positive impact on communities and the environ- ment. The EY Masters in Sustain- ability by Hult, the first quali- fication of its kind, will signif- icantly expand sustainability and climate literacy among EY people and help them translate those skills into new and inno- vative sustainability services for clients around the globe. 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