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OMBUDSMAN FOR BANKING SERVICES AND INVESTMENT (OBSI) |
ARBITRATION |
LITIGATION |
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1 |
LIMIT $350,000 |
Limit $500.000 |
No Limit |
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2 |
Can only make recommendations for a settlement and not give a binding judgment |
Binding, non-appealable Judgment |
Appealable judgment |
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3 |
Cost: zero, but to improve chances of success, should have a representative at all stages of the process. Cost $6,000 to $10,000 |
Cost: $8,000 to $12,000 (but some representatives work on a contingency basis i.e. no success-no-fee) |
Cost: Between $60,000 to $120,000
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4 |
Decision maker investigator who (usually) formerly worked in the financial services industry
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Retired Superior Court Judge or Senior Lawyer |
Judge |
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5 |
No provision for expert reports essential and expert witness or expert evidence (which Judges and arbitrators deem essential in determining an investment loss claim) |
Expert report essential. Expert witness can be called to support claim |
Expert report and expert witness essential |
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6 |
No witnesses. Investigator interviews interested parties in separate interviews |
Witnesses can and are called |
Witness can be called |
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7 |
No opportunity for claimants to hear and /or refute the other sides’ “testimony” |
All evidence given in the presence of the other party |
All evidence given in the presence of the other party |
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8 |
No cross-examination of interested parties to challenge or test the truth of their statements/evidence |
Cross examination allowed |
Cross examination allowed |
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9 |
No discovery of important and relevant documents |
Discovery of documents allowed |
Oral and documentary discovery allowed |
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10 |
Parties cannot compel the other party to disclose/ furnish important documents which may be vital to that parties claim |
Parties can be ordered by arbitrator to produce and disclose important documents thus avoiding prejudice to a party |
Parties can be ordered to produce and disclose important documents |
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11 |
Parties usually unrepresented with potential for disastrous results |
Representation recommended. Very few investors can successfully represent themselves at arbitration |
Representation recommended |
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12 |
Takes four to nine months on average, to conclusion |
Takes four to seven months on average, to conclusion |
Can take three to five years to conclusion |
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13 |
No fees payable to OBSI |
Can opt out of paying other parties legal costs |
Usually loser pays the winner’s legal costs (if unsuccessful) |
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14 |
No provision for a pre-interview meeting, to agree/settle contentious issues
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Pre –hearing held |
Pre –hearing held |
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15 |
Cannot have a say in the selection of an investigator |
Parties can choose an arbitrator from a panel of arbitrators |
Cannot choose a Judge
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