Is this the solution to solving the derivatives mis-selling issue?
12-05-2016 | by Victor Macrae |
Recently the Dutch Ministry of Finance appointed three independent experts to solve the long-lasting issue of derivatives mis-selling in the Netherlands. This is important for both firms and banks as the dispute puts severe pressure on their relationship. Moreover, judges are reaching more and more verdicts in favour of SME’s. In several cases interest rate swap transactions were declared void and the firm was compensated for its losses. Therefore the stakes are high. Is this last step permanently going to solve the issue?
The derivatives mis-selling problem originates from the fact that banks have been selling interest rate swaps to SME’s as an alternative to fixed rate loans. If market interest rates would not have dramatically decreased to unprecedented lows, there might have been no issue at all! But the reality is that buyers of interest rate swaps face various problems that they were apparently not aware of when signing the contract. For instance, in contrast to fixed rate loans, a bank can increase the interest margin when it deems a higher counterparty risk. Furthermore, when a firm wants to repay the underlying loan, it will also have to pay a possible negative market value of the swap. Also, a swap’s negative market value can decrease the firm’s access to liquidity.
MiFID strongly protects non-professionals
A key fact in this issue is that SME’s are deemed to be non-professional investors according to MiFID, a powerful EU directive that protects customers that purchase financial instruments. When selling interest rate swaps to non-professionals, banks should in advance inform them whether it acts as an advisor or as product seller. Furthermore, the bank should upfront provide sufficient information about all risks involved. Last but not least, banks should check that the non-professional investor understands the proposition and that the product is in the best interest of the customer.
Overarching solution
The Dutch financial conduct authority AFM first asked the banks to review their files of derivatives sales to SME’s and to pay compensation if necessary. Thereafter, the AFM concluded that the reviews were not ‘in the best interest of the customers’ and demanded that banks do it all over again. Recently the Dutch Minister of Finance intervened because he was unhappy with this process. As a consequence, to solve the issue once and for all the Ministry of Finance appointed three independent experts. I’m pleased with the idea of appointing three ‘outsiders’ as it makes it easier to reach a sound overall solution for all parties involved. SME’s would be fairly compensated and further financial and reputational damage of banks would be limited.
Disturbing signals
What bothers me is the fact that in the procedure set up by the AFM the banks will create an overall recovery plan together with the independent experts. This gives far too much power to the banks and undermines the independency of the experts! Having said that, the Minister of Finance has already softened this statement of the AFM. We will see how it works in practice. As an alternative SME’s can always go to court as judges have reached verdicts that are beneficial to them…
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