陳炳煥：調解更經濟省時

2010年 03月 01日 16:27 中國窗

【香港商報】訊
記者何佩珊報道：國際間貿易和商事交易越趨頻密，市民、機構之間的糾紛也隨之增加。香港調解會主席陳炳煥表示，仲裁是解決糾紛的辦法之一，但他建議市民或機構出現爭議時，應先通過調解的方法，就爭議的事項達成和解協議，若調解不成功，再通過仲裁訴訟等辦法去解決。他認為調解是一個具經濟及時間效益的辦法。
香港國際仲裁中心秘書長蘇國良說，09年至今年2月中旬，該中心共調解案件170宗，其中已完成調解的共109宗，剩餘案件正進行或等待調解中，也有部分案件是雙方當事人直接談判解決。他指出，調解的案件，有95宗達成和解協議，成功率為87%，高於國際調解成功率80%水平。案件性質包括金融、證券、商業、租務、業權、信託、建築、會計等，涉及金額介乎8萬至9000萬元之間。
17日完成雷曼個案達雙贏
會上，香港調解會副主席梁慶豐亦向記者分享了一個他調解成功的案例。他說，本港一位老人因買了雷曼相關的金融產品與銀行出現爭議，涉及金額為港幣312萬元，后來通過調解，雙方達成協議。基於保密協議，梁慶豐并無透漏雙方最終的和解內容，不過他強調，老人與銀行由最初帶敵意的態度，變成雙方均滿意和解結果，達成雙贏局面。
梁氏說，該名老人從提出調解，委任調解員，到他與銀行達成最終協議，前后僅用17日時間，如果該案例通過高等法院處理，除了要聘請律師、大狀，還要花費時間去排期審判，無論金錢還是時間，雙方當事人通過調解來處理，都更具效益。
蘇國良亦指，與該案件相類似的案例很多，去年中心就接獲了210宗雷曼產品相關案件，另外有37宗與迷債相關，目前共進行了86宗，當中76宗已調解成功，成功率達88%。邀專才擔任調解員
陳炳煥表示，香港是亞洲的國際商務和金融中心，港人與內地、台灣、東南亞等地區的其他人士合作日益頻密，雙方出現糾紛時，普遍選擇香港作調解，主要因為當事人認同香港調解做法。他補充，現時該中心擁有500多名國際級本地專業調解員，未來本港將需要更多具調解專業資格的調解員。這些調解員主要從事律師、會計、建築師、醫生、銀行、工程等專業。


(來源: 香港商報) 編輯: 钟智维

評審制調解員收費各不同.中銀 律師串通調解員進行形式化調解

中銀吳亮星，卻極可能在無對手下，在金融界自動當選
自CY 準備用中銀高層為立法局議員後, 中銀利用律師及調解員打壓苦主官司追討賠償
新調解員質素參差 疑串通律師進行形式化調解打官司勞民傷財，法庭在○九年雷曼事件之外力推調解服務，鼓勵苦主入稟法庭訴訟前，先利用調解解決糾紛，令調解員需求日增。但現時調解員服務質素良莠不齊，有些視調解為例行公事，草草處理；亦有調解員會與受中銀所控全香港所有律師樓串通，進行形式化的調解，待調解失敗後，大律師也可成為便能繼續接洽訴訟生意；市場上曾出現濫用調解的誤導情況，終損害市民興訟人利益, 一定會保大銀行中銀利益。

中銀律師Clifford Chance會與調解員串通，故意進行形式化的調解，好讓律師能繼續接官司，律師會向客戶推介調解員，然後進行『過冷河』式的調解，就算調解失敗，調解員亦有錢賺，律師又繼續有官司接。」律師多是開價五千元，處理一宗調解，只需坐一至兩小時便行，調解不果不打緊，律師會繼續他的工作。調解員中多位曾被邀請進行「過冷河」式的調解。　業界報告指，調解實務指示實施後，訴訟個案至少減兩至三成，直接影響律師樓的生意因調解業界未有資格評審的法定制度，亦無執業準則可循，令調解員的質素有參差。例如，有調解員視調解為例行公事，處理草率，既不積極聯絡爭議雙方，又不事先理解案情爭議及雙方需求，結果到調解會議當天，拖慢整個調解進度，同時令成功率大降。

中銀有調解員被進行形式化的調解，律師幫忙找調解員，事先明言調解過程只有兩小時，談判不果則交回律師樓跟進處理。但故意增加調解預備時鐘而收費多過律師上庭費用，Chan Bing Woon便是中銀專用 , 為阻礙調解，有律師及師爺甚至會代表爭議雙方出席調解會議，「但調解過程中，寸步不讓，終令調解失敗告終。」敷衍了事 望交律師樓處理　　現時不少調解員均由執業律師兼任，故意調解時大多草草了事，因一般調解員每小時收取四百元，但執業律師則收取二千元，基於連帶身分和利益下，他們便會提供馬虎的調解服務，並希望把個案轉交給律師樓，以致調解服務名不副實。　　市場上也曾出現「濫用調解」的誤導情況，香港業主會會長佘慶雲憶述，有七十歲的雷曼苦主曾因誤信調解而蒙受損失。「七十歲婆婆被銀行職員違規推銷投資衍生工具，涉及金額一百萬元，雷曼爆煲後，銀行理應悉數賠償。但銀行卻向該婆婆介紹調解員，婆婆卻信以為真接受調解，更簽下調解同意書，銀行終賠償六十萬。由此可見，在大是大非的案件中，調解並非最好解決方法，往往損害興訟人的利益。由銀行推介的調解員是在調解的過程中作出誤導，也非常多發生。
　　而坊間有培訓課程，不設考試及入讀門檻，以八千至一萬多元不等的學費招生，「課程簡介會上，不少人屬勞動階層，只求覓新工作出路，但連了解課程內容亦有困難，更遑論閱讀法律文件及理解案情 , 律師行多利用他們作假和解。」

與金融調解中心分工煥
近日政府建議成立金融糾紛調解中心，提出申索上限50萬元，香港調解會主席陳炳煥表示，50萬元只是諮詢文件的建議，但他亦支持50萬元的建議，因已涵蓋八成的個案，相信一般市民可利用此服務, 而中銀對USD60,000和解要求 , 差不多是50萬元的調解不用金融糾紛中心而和陳炳煥合 作 , 歹念可見

why_is_banking_a_criminal_industry_because_its_crimes_go_unpunished

http://www.alternet.org/economy/156334/why_is_banking_a_criminal_industry_because_its_crimes_go_unpunished

First, Barclay's has been manipulating the Libor, the main interest rate upon which most other interest rates and financial transactions are based, since 2005. Moreover, Barclay's traders were colluding with traders in many other banks to assist them in manipulating the Libor too, so that they could all profit from their bets on it.

Second, JP Morgan Chase is having a really great month. Recent reports describe how it isresisting Federal subpoenas related to price-fixing in U.S. electricity markets. It is also accused (by former employees among others) of deliberately inflating the performance of its investment funds to obtain business. And finally, JP Morgan's failed "London whale" trade, which has now cost over $5 billion, is being investigated to determine whether the loss was initially concealed from regulators and the public.

Third, HSBC is paying a fine because it allowed hundreds of millions, perhaps billions, of dollars of money laundering by rogue states and sanctioned firms, including some related to terrorist activities and Iran's nuclear efforts. But HSBC is only one of at least 12 banks now known to have tolerated, and in some cases aggressively courted, money laundering by rogue states, terrorist organizations, corrupt dictators, and major drug cartels over the last decade. Others include Barclay's, Lloyds, Credit Suisse, and Wachovia (now part of Wells Fargo). Several of the banks created special handbooks on how to evade surveillance, created special business units to handle money laundering, and actively suppressed whistleblowers who warned of drug cartel activities.

Fourth, a new private lawsuit cites documentsindicating that Morgan Stanley successfully pressured rating agencies into inflating the ratings of mortgage-backed securities it issued during the housing bubble.

Fifth, Visa and Mastercard have just agreed to pay $7 billion to settle a private antitrust case filed by thousands of merchants, who alleged that Visa and Mastercard colluded to fix fees and terms of service.

Just another month in financial services. Is it unusual? No, it's not. If we go back just a little further, we have UBS, HSBC, Julius Baer, and other banks actively marketing tax evasion services to wealthy U.S. and European citizens. We have senior executives of several banks (including JP Morgan Chase and UBS) strongly suspecting that Bernard Madoff was running a Ponzi scheme, but deciding to make money from him rather than turn him in. And then, of course, we have the financial crisis and everything that led to it. As I show in great detail in my book Predator Nation, we now possess overwhelming evidence of massive securities fraud, accounting fraud, perjury, and criminal Sarbanes-Oxley violations by mortgage lenders, investment banks, and credit insurers (including senior executives of Countrywide, Citigroup, Morgan Stanley, Goldman Sachs, Bear Stearns, AIG, and Lehman Brothers) during the housing bubble that caused the financial crisis. If we go back to the late 1990s, we have the massively fraudulent hyping of Internet stocks, and several banks (including Merrill Lynch and Citigroup) actively aiding Enron in committing its frauds.

So, July 2012 really isn't abnormal at all. The reason for this is very simple. Over the past two decades, the financial services industry has become a pervasively unethical and highly criminal industry, with massive fraud tolerated or even encouraged by senior management. But how did that happen?

Well, deregulation helped, of course. But something else was far more important. It is the one critical factor that unites all of the episodes cited above, including those of this month. This critical unifying factor is the total number of criminal prosecutions of major firms and senior executives as a result of all of these crimes combined.

And what is that number?

Zero.

Literally zero. A number that neither President Obama nor Mitt Romney shows the slightest interest in changing.

Consider the Obama administration's choices for the four most important positions in financial sector law enforcement. The attorney general (Eric Holder) and the head of the Justice Department's criminal division (Lanny Breuer) both come to us from Covington & Burling, a law firm that represents and lobbies for most of the major banks and their industry associations; indeed Breuer was co-head of its white collar criminal defense practice, and represented the Moody's rating agency in the Enron case. Mary Schapiro, the head of the SEC, spent the housing bubble in charge of FINRA, the investment banking industry's "self-regulator," which gave her a $9 million severance for a job well done. And her head of enforcement, perhaps most stunningly of all, is Robert Khuzami, who was general counsel for Deutsche Bank's North American business during the entire bubble. So zero prosecutions isn't much of a surprise, really.

In contrast, what do you think would happen to you if, as a lone individual, you were caught supporting Iran's nuclear program? Do you think that you would get off with a "deferred prosecution agreement" and a fine equal to a few percent of your annual salary? No?

But that's because you don't live right. You probably haven't been to the White House a dozen times since President Obama took office, or attended White House state dinners, like Lloyd Blankfein has. Nor have you probably overseen millions of dollars in lobbying and campaign donations, or hired senior administration officials, or sent your executives into the government in senior regulatory positions, or paid $135,000 for a speech by someone who later became chairman of the National Economic Council. And, well, you get the law enforcement that you pay for.

Charles Ferguson is director of the Wall Street documentary 'Inside Job' and author of 'Predator Nation'

To HKCEO

Thank you for your sending of the complaint to SFC and HKMA.
Enclosed are the rules and findings from Legco Minibonds report (English) that Bank of China lawyers choose to ignore in reply to me :

p. x - (n) guidance issued by National Association of securities dealers in US, TCF initiative of FSA in the U.K.

p. xi - (r)securities business of banks being regulated by HKMA and SFC largely ineffective

p. 61 4.24 - "INVESTMENT RISKS" - centrality of the CDS ....and its related companies in the product structure and their potential risks have not been duly highlighted in the issue propectus.

p. 61 4.25 - ...names of the seven reference entities ...which easily attracts attention upfront on these entities and overshadows other product features and risks which appear in the same sheet, but in much smaller font size.

p. 62 4.27 - ... GP2 (Diligence) requires intermediaries to act with due skill, care and deligence in the best interests of their clients.
Under GP4 (Information about clients), intermediaries are required to observe a number of "know your client" ( KYC) requirements. In making a recommendation or solicitation, intermediaries should ensure the suitability of the recommendation of solicitation for the client is reasonable in all the circumstances. In respect of derivative products, it is the intermediary's duty to ensure that the client understands the nature and risks of the product.

P.63 4.29 - The key suitability obligations on intermediaries are:

(a) Know their clients;
(b) Understand the investment products they recommend to clients;
(c) Provide reasonably suitable recommendations by matching the risk return profile of each investment product with the personal circumstances of each clients;
(d) Provide all relevant material information to clients;
(e) Employ competent staff and provide appropriate training;
and
( f ) Document and retain the reaons for each product recommendation.

p.78 5.6 According to GP2 of the code of conduct, intermediaries should act with due skill, care and diligence and in the best interest of the customers ............intermediaries need to consider include market and industry risks, economic and political enviroments and any other factors which may impack on the risk-return profiles of the investments. .... intermdiaries should make their own enquiries and obtain explanation from the issuers about the products instead of relying on propectuses and marketing materials only. ... Intermediaries should also ensure that product due diligence is conducted on a continuous basis having regard to the nature, features and risks of investment products.

p.81 (f) - Legal/regulatory implications on the bank - compliance with the local laws and regulations, cross-border regulatory requirements, disclosure/reporting obligatgions.

******* lies of BOCHK to Legco (and to
newspapers)******
p.82 local product teams/committees comprising qualified staff with extensive relevant market experience conducted product due diligence in accordance with the bank's product due diligence guidelines.
****************************************************
p.82 5.10 - (BOCHK) prepared a four-page summary in Chinese giving a very short description of the features and six major risks of the products. The summary also contained a statement that the product was not suitable for investors with low or medium risk tolerance levels....


p.83 5.11 - (BOCHK) did not introduce a formal risk rating to the ... structured products it offered until August 2004

p. 86 5.19 - ...the documents....did not clearly show in which aspects the products were suitable for different risk catagories of investors, as required under the Suitability FAQ.

p. 89 5.26 - According to the management of the six banks, it was mandatory for sales staff to attend both general and product-specific training.

p. 94 5.35 - the general training provided to their sales staff focused on generic market and product knowledge, regulatory and compliance requirements (such as the Code of Conduct, KYC requirements, suitability obligations) applicable to the sale of investment products. ......... Most of
the RMs also recalled that the management had drawn their attention to the Suitability FAQ issued by SFC.

p.94 5.36 - ...........Another IC stated that most of his information .... deteriorating financial condition came from the media. One of the ICs indicated that he had not received any instruction requiring him to inform the sales staff about ... worsening financial position.

p. 101 5.49 .... the handling RM must first ensure that the customeer had a valid risk/investment profiling. (.. for 12 months.)

p. 102 5.51 ... structure products....were not suitable for everyone and were not suitable for inexperienced investors.

p. 105 5.57 ....with risk mismatch ....additional safeguards were implemented to ensure that the customers understood the products risks.
...

p. 117 5.80 ....all the steps of providing offer documentations and product explanation had been taken by their RMs prior to completion of their transactions....

p.117 5.81.... the banks had relied heavily on the signed written declarations as proof of the customers' understanding ... of the structure products. .. It should be noted that the signing of forms could not necessarily demonstrate that the product had been properly explained by the bank staff and understood by the customer.

And the most important part :

p. 131 5.110 ....(BOCHK) had resolved over 20% of their outstanding cases through ECHP.

p. 137 6.11 CCB... announced that after seeking legal advice from the Department of Justice ......five cases were still under investigation.....