On 1 January 2020, the Financial Services Act (FinSA) entered into force. Under the FinSA, clients of financial service providers can avail themselves of an ombudsman procedure. For this purpose, the financial service providers must be affiliated to an ombudsman recognised by the Federal Finance Department (FDF).
Articles 74 et seq. of the FinSA provide for a mediation procedure before an ombudsman to settle legal disputes between clients and financial service providers.
For this purpose, the financial services providers must be affiliated to an ombudsman (Art. 77 of the FinSA) that has been recognised by the FDF (Art. 84 para. 1 of the FinSA).
List of recognised ombudsmen
- 24.06.2020 - Swiss Banking Ombudsman Foundation
Bahnhofplatz 9, 8021 Zürich
- 24.06.2020 - Ombudsman's Office for financial service providers
Bleicherweg 10, 8001 Zürich
- 24.06.2020 - Finanzombudsstelle Schweiz (FINOS)
Talstrasse 20, 8001 Zürich
- 24.06.2020 - OFS Ombud Finance Switzerland
Bollwerk 21, c/o Etude Peter von Ins, 3011 Bern
- 27.07.2020 - Financial Services Ombudsman (FINSOM)
Avenue de la Gare 45, 1920 Martigny
- 27.07.2020 - Swiss Chambers’ Arbitration Institution (SCAI)
Boulevard du Théâtre 4, case postale 5039, 1211 Genève 11
- 27.07.2020 - Terraxis SA
Rue de la Tour-de-l'Île 1, 1204 Genève
Eligibility and conditions for membership are governed by the regulations of the ombudsman offices.
The list is not exhaustive – some recognition procedures are still ongoing. Moreover, it is still possible to apply for recognition.
According to Article 95 of the FinSA, financial service providers must be affiliated to an ombudsman within six months of the Act coming into force. If no ombudsman exists when the FinSA enters into force, the time limit for affiliation will not begin until ombudsmen have been recognised by the FDF (Art. 108 of the FinSO).
If there is no suitable ombudsman for several financial service providers, the Federal Council may establish an ombudsman (Art. 84 para. 4(2) of the FinSA).
Review criteria of the FDF
When recognising ombudsmen, the FDF is bound by the provisions of the law and ordinance. These provide for a certain amount of discretion. The following explanations are intended to show when the FDF considers the prerequisites to be fulfilled. It is not excluded that the fulfilment of the recognition requirements may be proven by other means.
Independence is deemed to be ensured if the ombudsman is backed by an independent organisation (e.g. foundation, association) that:
- appoints and remunerates the ombudsperson,
- provides or finances the necessary infrastructure,
- ensures the independence of the ombudsperson,
- monitors the efficiency and effectiveness of the ombudsman's activities.
The management bodies of the sponsoring organisation consist mainly of individuals from outside the sector. They do not participate in the management of the individual procedures.
The ombudsperson is appointed for a fixed term of office and can only be dismissed prematurely for important reasons.
The law does not exclude an ombudsman without a sponsoring organisation. However, its application for recognition would have to state how equivalent independence is guaranteed. According to Article 101 paragraph 2 of the FinSO, ombudsmen that are not legally independent must have sufficient separate and earmarked funding at their disposal.
Organisational regulations and rules of procedure
The applicants regulate the tasks and powers of all bodies in organisational regulations. These also set out the conditions for membership and exclusion. The conditions for membership must be based on objective criteria (Art. 101 of the FinSO).
The whole procedure is laid down in rules of procedure in the law. The proceedings must be unbureaucratic, fair, quick, impartial and inexpensive or free of charge for the client. The procedural rules of Article 75 of the FinSA must be observed.
The regulations ensure that the ombudsperson or the individuals leading the cases are directly or indirectly bound by the instructions of the affiliated financial service providers.
According to Article 80 of the FinSA, financial service providers make financial contributions to the ombudsman to which they are affiliated. The contributions are determined according to the ombudsman's schedule of contributions and costs based on services used.
In accordance with Article 99 of the FinSO, the ombudsman or an industry organisation designated by it collects contributions from its affiliated financial service providers to cover the total costs arising from its statutory duties. The contributions can be collected in accordance with the ombudsman's schedule of contributions and costs, namely in the form of a fixed basic contribution as well as additional, case-based contributions. According to Article 84 paragraph 42 letter e of the FinSA, the financing is to be determined in a schedule of contributions and costs.
The costs of the ombudsman's infrastructure are to be borne by the affiliated service providers or industry associations, irrespective of individual disputes. Infrastructure costs include those for administration, including member administration, availability and processing of enquiries, reporting and fulfilment of statutory reporting obligations. Furthermore, the creation of adequate financial reserves must be ensured.
The individual proceedings can be financed by fees from the service providers concerned. Costs may be shared with the client only to a very limited extent.
The applicant must submit a business plan stating that the ombudsman service will be guaranteed for a minimum period of two years. The applicant can submit various financing scenarios, whereby it must in any case be demonstrated that the fixed costs are covered.
The proof of financing depends on the chosen financing model. The FDF freely examines the evidence submitted.
According to Article 84 paragraph 2 letter b of the FinSA, only organisations which ensure that the individuals entrusted with mediation have the necessary specialist skills are recognised. The specialist knowledge of the individuals involved represents key added value of mediation by recognised ombudsmen. In particular, this involves specific knowledge of financial instruments, financial services and the financial and capital market as a whole. Furthermore, those concerned should also have specific specialist knowledge in the field of mediation.
Ombudsmen have considerable discretion in determining the specialist skills required.
The ombudsperson's curriculum vitae must demonstrate that he or she has sufficient knowledge of financial services, as well as experience and/or training in alternative dispute resolution (ADR)/mediation.
If cases are to be handled by third parties, the requirement profiles for these third parties must be submitted.
Last modification 15.09.2020