Criteria for appointment as a FIDReC Adjudicator
The Adjudicator has to be of sufficient stature and possess the experience and expertise to command the respect and confidence of the disputing parties. The Adjudicator has to be able and capable of carrying out the duties required of an Adjudicator of FIDReC. The said duties include the following :-
- The Adjudicator has to conduct the adjudication hearing attended by representatives of the Financial Institution (FI), complainants as well as nominees and witnesses of both parties and to listen to and evaluate written and oral evidence of both parties and their witnesses.
- Matters of Procedure are determined by the Adjudicator (e.g. structure of hearing, whether cases against more than 1 FI should be joined together and heard at a single hearing, admission of evidence on day of hearing or exclusion of such evidence, admission of submissions on day of hearing or exclusion of such submissions, further orders and directions (e.g. production and exchange of further evidence, procuring attendance of or written statements from additional witnesses), considering applications by parties for adjournments, deciding whether to adjourn the adjudication hearing etc).
- The Adjudicator has to handle all challenges and issues raised by parties during the hearing. The Adjudicator has to ensure that the procedure is fair to both parties and that the procedure set by the Adjudicator is suitable and appropriate taking into account the facts and nature of the particular case and evidence presented.
- The Adjudicator has to address questions to both parties and their witnesses to elicit the relevant facts from the parties and witnesses. The Adjudicator also has to summon relevant documents so as to ensure that decision arrived at by Adjudicator takes into account the relevant facts.
- The Adjudicator has to ensure a level playing field and that no party is inappropriately disadvantaged.
- The Adjudicator has the discretion to exclude and disallow questions which are irrelevant, provocative, repetitive, frivolous or improper etc.
- The Adjudicator has to ensure that the principles of Natural Justice are adhered to (e.g. parties have to be afforded an adequate opportunity to be heard).
- In some cases, where necessary, the Adjudicator has to decide whether to draw adverse inferences due to non-production of documents/evidence and/or witnesses after taking into account all relevant factors such as the reasons for such non-production as well as the impact/significance of the non-production etc.
- All preliminary objections and matters are determined by Adjudicator (e.g. applications to dismiss cases on grounds that case is vexatious or frivolous, objections to admission of FI representatives, complainant's nominees and witnesses of both parties including expert witnesses, assessing and determining whether to accept expert witnesses' credentials and admit the expert witnesses, deciding whether to convert witnesses to complainants, deciding whether to admit additional representatives etc).
- Where the adjudication proceeds by way of documents only adjudication, the Adjudicator has to give the appropriate directions and orders.
- The Adjudicator has to assess each case based on its facts and merits taking into account all relevant facts such as written submissions of parties, oral testimonies of the witnesses and complainants.
- The Adjudicator has to assess and evaluate conflicting oral evidence and determine the credibility of witnesses and complainants as well as the evidence adduced by them.
- The Adjudicator has to make appropriate findings of fact and determine the issues of law and equity relevant to the case.
- The Adjudicator has to write the grounds of decision setting out his or her decision and the reasons for the decision.
- In cases where an award is made in favour of the complainant, the Adjudicator has to approve the settlement agreement and ensure that the agreement reflects the award. The Adjudicator has to hear and decide on any dispute relating to the settlement agreement raised by the parties.
- The Adjudicator has to observe and comply with the Adjudicator's Code of Conduct set out in Appendix C, Annex 4 of FIDReC's Terms of Reference.
- The Adjudicator shall not provide any form of legal advice , financial advice and/or other professional advice to the parties. Where necessary, the Adjudicator may remind the parties to consult the appropriate professionals.
- The Adjudicator has to give all necessary orders and/or directions to safeguard the integrity of the adjudication process, to ensure that the adjudication process complies with the rules of Natural Justice and/or to ensure that the adjudication process is fair and transparent.
Click here to apply to be appointed as a FIDReC Adjudicator