“publish”, in relation to publication of a matter by the OFSO, means publish the matter in a manner appearing to the OFSO to be likely to bring the matter to the attention of those affected by it;

“relevant financial services business” has the meaning given by Article 9;

“respondent” means a person against whom a complaint may be entertained by virtue of Article 10;

“staff” has the meaning given by Article 4(3).

Part 2

Establishment and functions of OFSO

2 Establishment of OFSO

(1) There is to be a body corporate to be known as the Office of the Financial Services Ombudsman (“OFSO”).

(2) The OFSO is to have a board, whose members are the OFSO’s directors, consisting of –

(a) a Chairman; and

(b) at least 2, and no more than 4, other members.

(3) Schedule 1 makes further provision in relation to the constitution of the OFSO.

(4) Schedule 2 makes provision in relation to the finances of the OFSO.

(5) The States may by Regulations amend –

(a) paragraph (2)(b), to alter the minimum or maximum number of members;

(b) Schedule 1, other than paragraph 11.

3 General functions of OFSO

(1) The primary function of the OFSO is to administer the operation of this Law to secure that complaints about financial services are resolved –

(a) independently, and in a fair and reasonable manner;

(b) effectively, quickly, with minimum formality, and so as to offer an alternative to court proceedings that is more accessible for complainants; and

(c) by the most appropriate means, whether by mediation, referral to another forum, determination by an Ombudsman or in any other manner.

(2) The OFSO has in addition any other function conferred on or transferred to it under this Law or any other enactment.

(3) The States may by Regulations –

(a) transfer to the OFSO any function under any other enactment, to the extent that the function relates to complaints about financial services; and

(b) amend this Law or any other enactment in order to give effect to any transfer of functions to the OFSO under sub-paragraph (a).

(4) The board of the OFSO must, in carrying out its functions, seek to protect the independence of the OFSO, including in particular the independence of the Ombudsmen, from –

(a) the States of Jersey, and in particular the Minister (subject to paragraph (5)(b));

(b) persons providing funding for the OFSO;

(d) persons who use the services of financial service providers;

(e) the Commission; and

(f) any other influence that might compromise its independence.

(5) Paragraph (4) does not require the board to protect the independence of the OFSO from –

(a) any corresponding body in Guernsey, if there is an arrangement described in Article 6(1);

(b) the Minister, to the extent that the Minister is exercising his or her power under paragraph 12 of Schedule 1 or under any other provision of this Law.

4 Appointment of Principal Ombudsman and other staff of OFSO

(1) The board of the OFSO must appoint as the Principal Ombudsman, for a period of at least 5 years, a person appearing to the board to have the appropriate qualifications and experience to perform the functions of the Principal Ombudsman under this Law.

(2) The appointment of the Principal Ombudsman is to be on such terms (including terms as to the early termination of his or her appointment and as to remuneration) as the board considers –

(a) promote the independence of the Principal Ombudsman; and

(b) are otherwise appropriate.

(3) The OFSO –

(a) must secure the availability of a sufficient number of other suitable persons (“staff”) to perform its functions from time to time; and

(b) may do so in any way it considers appropriate, including without limitation –

(i) by appointing employees,

(ii) by appointing agents, on the terms that it thinks fit as to the remuneration and expenses of those agents,

(iii) by establishing panels of self-employed persons who may be contracted on particular occasions, and

(iv) by contracting or otherwise arranging with another person to provide staff on any basis.

(4) The OFSO may not enter into or offer to enter into a contract of employment with a person who was a board member immediately before that contract is entered into or offered.

(5) In respect of its employees the OFSO may, as it thinks fit –

(a) determine terms as to remuneration, expenses, pensions and other conditions of service; and

(b) establish and maintain schemes, or make any other arrangements, for the payment of pensions and other benefits.

5 Designation of Ombudsmen

(1) The board of the OFSO must –

(a) secure that, among its staff, there is a sufficient number of persons who appear to the Principal Ombudsman to have the appropriate qualifications and experience to perform the functions of an Ombudsman under this Law; and

(b) designate those staff members as Ombudsmen for the purpose of this Law.

(2) The appointment of a person who is designated as an Ombudsman is to be on such terms (including terms as to the duration and termination of his or her designation and as to remuneration) as the board considers –

(a) promote the independence of the Ombudsman; and

(b) are otherwise appropriate.

6 Arrangements with Guernsey and adaptation to European standards

(1) Paragraph (2) applies if an arrangement is entered into by the Minister, after consulting the OFSO, with the States of Guernsey for any or all of the following –

(a) sharing resources or staff for the purposes of any function under this Law and of any similar function under a corresponding Ombudsman scheme in Guernsey;

(b) aligning any aspect of the procedures, policies, eligibility criteria or other elements of the Ombudsman schemes of the jurisdictions;

(d) combining the Ombudsman schemes of the jurisdictions into a single scheme similar to the scheme under this Law.

(2) The States may by Regulations make such provision as they consider necessary or expedient to give effect to that arrangement, and that provision may, without limitation, include –

(a) provision for conferring functions on the OFSO in relation to the Guernsey scheme, or for transferring functions of the OFSO to the corresponding body under the Guernsey scheme;

(b) provision for uniting the finances of the schemes, or for allocating between the jurisdictions the expenses of the schemes or the powers to raise income for the schemes;

(c) provision for transferring, wholly or partly, the employment of any employee of OFSO (including the Principal Ombudsman) to the corresponding body under the Guernsey scheme, or for reducing the hours and pay of such an employee when that employee is to be offered similar work under the Guernsey scheme;

(d) provision for sharing of information between the schemes of each jurisdiction; and

(e) provision made by amendment of any provision of this Law except this Article and Parts 5 and 6.

(3) In the case of an arrangement described in paragraph (1)(d), Regulations under paragraph (2) may, without limitation, include –

(a) provision for merging the OFSO with the corresponding body under the Guernsey scheme;

(b) provision for transferring all of the functions of the OFSO to the corresponding body under the Guernsey scheme, and for abolishing the OFSO following the transfer.

(4) Nothing in paragraph (2) or (3) is to be read as –

(a) requiring provision to be made by way of Regulations under this Article, if that provision can instead be made –

(i) by an arrangement described in paragraph (1) without any enactment,

(ii) by Regulations or an Order under any other provision of this Law, or

(iii) by any other means;

(b) preventing –

(i) a board member, an Ombudsman, or any or all of the other staff of the OFSO, from accepting appointment to a corresponding position under the Guernsey scheme, or

(ii) a person appointed to any position under the Guernsey scheme from being appointed to a corresponding position under this Law; or

(5) The States may by Regulations make such amendment to this Law as they consider expedient to give effect, in relation to this Law, to any provision of –

(a) Regulation (EU) No. 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes (OJ L 165/1, 18.6.2013)[2];

(b) Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes (OJ L 165/63, 18.6.2013)[3];

(c) Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136/3, 24.5.2008)[4];

(d) Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (OJ L 115/31, 17.4.1998)[5];

(e) Commission Recommendation 2001/310/EC of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (OJ L 109/56, 19.4.2001)[6];

(f) any other Community instrument, within the meaning of the European Communities (Jersey) Law 1973[7], appearing to the States to be relevant to the functions of the OFSO.

(6) This Article is without prejudice to any other power to amend this Law –

(a) under any other provision of this Law, including Article 12(8); or

(b) under Article 2 of the European Communities Legislation (Implementation) (Jersey) Law 1996[8].

Part 3

Referral of Complaints to OFSO

7 Eligible complaint

A complaint may be referred to the OFSO if –

(a) the person (“the complainant”) making the complaint, or on whose behalf the complaint is made, is an eligible complainant;

(b) the complaint relates to an act by another person, being an act that occurred in the course of relevant financial services business carried on, in or from within Jersey, by that other person; and

8 Eligible complainant

(1) In this Article –

“relevant act”, in relation to a complainant, means the act that is the subject of the complainant’s complaint;

“relevant business” means the relevant financial services business in the course of which the relevant act occurred;

“relevant provider” means the person whose act was the relevant act (being the person carrying on the relevant business at the time of that act, whether or not that person is or was a financial services provider at any other time).

(2) A complainant is eligible if the complainant –

(a) was, at the time of the relevant act, a person falling within any of the categories described in paragraph (3);

(b) is not, and was not at the time of the relevant act, a financial service provider; and

(c) at the time of the relevant act, had the relationship required by paragraph (6) to the relevant provider in respect of the relevant act.

(3) The categories referred to in paragraph (2)(a) are –

(a) an individual who, in relation to the relevant provider and the relevant act, is acting for purposes other than his or her trade, business or profession;

(b) a microenterprise, within the meaning of Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124/36, 20.5.2003)[9], as amended from time to time;

(i) relates to charities, trusts, foundations or other bodies,

(ii) appears to the Minister to be appropriate for this purpose, subject to paragraph (5), and

(iii) is specified for this purpose by the Minister by Order on the recommendation of the OFSO.

(4) The Minister may by Order, on the recommendation of the OFSO, amend paragraph (3)(a) or (b) to exclude any description of individual or microenterprise appearing to the Minister to be likely to have resources, expertise or other characteristics rendering it reasonable to expect that description of individual or microenterprise to use other means than the OFSO to resolve complaints.

(5) In making an Order under paragraph (3)(c) the Minister must take particular account of –

(a) the desirability of ensuring that the services of the OFSO are primarily available to persons appearing to the Minister to be likely to lack resources, expertise or other characteristics that would render it reasonable to expect those persons to use other means than the OFSO to resolve complaints;

(b) if there is an arrangement described in Article 6(1), the desirability of aligning the scheme under this Law with the corresponding Guernsey scheme.

(6) The required relationship for the purpose of paragraph (2)(c) is –

(a) as a client of the relevant provider, being a person –

(i) with whom the relevant provider transacts or has transacted relevant financial services business, or

(ii) to whom the relevant provider gives or has given advice about such business;

(b) as a person attempting to become a client of the relevant provider; or

(c) any other relationship, appearing to the person examining the complaint under Article 12(1)(a) to be sufficiently close to give appropriate standing for the services of the OFSO to be available to the complainant, taking account of the guidelines published under paragraph (14).

(7) The Principal Ombudsman must determine, and keep under review, guidelines for use under paragraph (6)(c) by persons examining complaints under Article 12(1)(a).

(8) The guidelines may make provision in respect of any relationship that a complainant might have to the relevant provider in respect of the relevant act, but must include provision in respect of a relationship that a complainant has –

(a) as a participant, or a person on whose behalf another person is a participant, in a collective investment fund in respect of which the relevant provider carries on the relevant business;

(b) as a person to or in respect of whom benefits are to be provided under a pension scheme in respect of which the relevant provider carries on the relevant business;

(c) as a person for whose benefit a contract of insurance was taken out or was intended to be taken out, or who has a right to benefit from a claim under a contract of insurance, being a contract in respect of which the relevant provider carries on the relevant business;

(d) as a person who relies in the course of business on a cheque guarantee card issued by the relevant provider by way of the relevant business;

(e) as the true owner, or person entitled to immediate possession, of a cheque or other instrument to which Article 5 of the Cheques (Jersey) Law 1957[10] applies, or of the funds it represents, collected by way of the relevant business by the relevant provider for the account of another person;

(f) as a person who receives a banker’s reference given by the relevant provider by way of the relevant business;

(g) as a person who gives the relevant provider a guarantee or security in relation to any credit provided by that provider by way of relevant business falling within Article 9(1)(i);

(h) as a person in relation to whose financial standing the relevant provider holds information by way of by way of relevant business falling within Article 9(1)(i);

(i) as a person who attempts to enter a relationship falling within any of sub-paragraphs (a) to (h);

(j) as a person against whom the relevant provider takes, or attempts to take, steps the taking of which constitute relevant business falling within Article 9(1)(i).

(9) The provision that may be made in the guidelines includes provision that a relationship (whether or not one of the relationships mentioned in paragraph (8)) –

(a) is generally to be treated as sufficiently close to justify eligibility;

(b) is generally to be treated as not being sufficiently close to justify eligibility; or

(10) The Minister may by Order, after consulting the OFSO and the persons mentioned in paragraph (13)(a) to (d) –

(a) amend any of paragraphs (8)(a) to (j) or add further sub-paragraphs to paragraph (8);

(b) make such provision as is mentioned in paragraph (9) in relation to a relationship mentioned in paragraph (8).

(11) Before making a recommendation to the Minister under paragraph (3)(c)(iii) or (4) the OFSO must consult –

(a) such persons as the Minister may specify by notice to the OFSO; and

(b) any other person appearing to the OFSO to be appropriate.

(12) Before determining any new guideline or any substantial amendment to a guideline, the Principal Ombudsman must consult –

(a) the Minister;

(b) such persons as the Minister may specify by notice to the OFSO;

(13) The Minister must specify, for the purposes of paragraphs (11)(a) and (12)(b) –

(a) if there is an arrangement described in Article 6(1), the person appearing to the Minister to be appropriate in relation to the corresponding Guernsey scheme;

(b) any body appearing to the Minister to be representative of the interests of all or any of the persons who may be eligible complainants as a result of the proposed Order or guideline;

(c) any body appearing to the Minister to be representative of the interests of all or any of any persons who are more likely to be respondents as a result of the proposed Order or guideline; and

(d) any other persons appearing to the Minister to be appropriate.

(14) The OFSO must publish the guidelines, specifying a date after the publication on which any new or amended guideline is to come into effect.

(15) In carrying out their functions under paragraphs (6)(c) and (7), the person examining a complaint under Article 12(1)(a) and the Principal Ombudsman must take particular account –

(a) of the principle that the services of the OFSO should be available for complaints where the relationship is sufficiently close, or of such a nature, as to mean –

(i) that acts of the relevant provider are likely to have effects on the interests of persons having that relationship to the relevant provider, and

(ii) that it is fair and reasonable to expect the relevant provider to accept responsibility for the effect of those acts on those interests; and

(b) if there is an arrangement described in Article 6(1), of the desirability of aligning the scheme under this Law with the corresponding Guernsey scheme.

(16) It is irrelevant for the purposes of this Article whether the complainant has any or no connection with Jersey (other than through the required relationship in respect of the relevant business that was carried on, as required by Article 7(b), in or from within Jersey).

9 Relevant financial services business

(1) Relevant financial services business is business, other than business exempted under paragraph (4), that is any one or more of the following –

(a) financial service business within the meaning of the Financial Services (Jersey) Law 1998[11];

(b) the business of an AIF, of an AIFM or of a service provider, as each of those terms is defined by the Alternative Investment Funds (Jersey) Regulations 2012[12];

(d) the business of a collective investment fund, within the meaning of the Collective Investment Funds (Jersey) Law 1988[14], or of a functionary within the meaning of that Law;

(e) insurance business for the purposes of the Insurance Business (Jersey) Law 1996[15];

(f) business that would fall within any of sub-paragraphs (a) to (e) but for an exemption or exclusion conferred by or under any of the Laws or Regulations mentioned in those sub-paragraphs;

(g) business that –

(i) falls within paragraph 7 of Part B of Schedule 2 to the Proceeds of Crime (Jersey) Law 1999[16], and

(ii) is specified Schedule 2 business, within the meaning of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008[17], in respect of which Article 10 of that Law requires the person carrying on the business to be a registered person within the meaning of that Law;

(h) relevant pension business, within the meaning of Schedule 3;

(i) relevant credit business, within the meaning of Schedule 4; or

(j) relevant ancillary business, within the meaning of paragraph (2).

(2) Relevant ancillary business is business ancillary to any other business falling within any of paragraphs (1)(a) to (i) (the “main business”), if –

(a) the main business is carried on in relation to the complainant by the same person as the ancillary business; or

(b) the ancillary business consists of –

(i) introducing, directly or by one or more intermediaries, persons who seek services, the provision of which constitutes the main business, to other persons who carry on that business, or

(ii) giving advice with a view to making such introductions.

(3) Business that may be ancillary for the purpose of paragraph (2) includes, without limitation –

(a) current account services;

(b) the provision and operation of automated teller machines;

(d) designing or establishing financial schemes or arrangements that require the provision of a service by way of the main business.

(4) The Minister must by Order exempt classes of business, to the extent that they would otherwise be relevant financial services business, in relation to which the Minister considers that it is not appropriate for the services of the OFSO to be available.

(5) In making an Order under paragraph (4) the Minister must take particular account of –

(a) the matters described in Article 8(5); and

(b) any likely impact on respondents carrying on any class of business that may be carried on without being registered, or holding a permit or certificate, under any of the Laws or Regulations mentioned in paragraphs (1)(a) to (e).

(6) Before exercising the power under paragraph (4) the Minister must consult –

(a) the OFSO;

(b) the Commission;

(c) if there is an arrangement described in Article 6(1), the person appearing to the Minister to be responsible for the corresponding scheme in Guernsey;

(d) any body that the Minister believes is representative of the interests of all or any of those who would be affected by the proposed Order; and

(e) such other persons as appear to the Minister to be appropriate.

10 Respondents

(1) In this Article “relevant provider” and “relevant act” have the meanings given by Article 8(1).

(2) A complaint may be entertained by the OFSO against any one or more of –

(a) the relevant provider (irrespective of whether that person is still a financial service provider when the complaint is referred to the OFSO);

(b) another person who, when the complaint is referred to the OFSO –

(i) has any liability in relation to the relevant act, being a liability that was transferred, after the commencement of this Part, to the person from the relevant provider, and

(ii) is carrying on relevant financial services business (whether or not the same business as that to which the complaint relates) in or from within Jersey; and

(3) An Ombudsman may, by notice in writing given to a person, designate that person (the “successor”) as a respondent in relation to a complaint referred to the OFSO, whether in addition to or in substitution for a person falling within paragraph (2)(a) or (b), if –

(a) any business, asset or liability (in relation to the relevant act or to any other matter) of the relevant provider was transferred, after the commencement of this Part and before the complaint is referred to the OFSO, to the successor from the relevant provider;

(b) the relevant provider no longer exists when the complaint is referred to the OFSO, or in the opinion of the Ombudsman substantial prejudice is likely to be caused to the complainant if the relevant provider is treated as the only respondent;

(c) when the complaint is referred to the OFSO, the successor is carrying on relevant financial services business (irrespective of where it is carried on and whether it is the same business as that to which the complaint relates); and

(d) in the opinion of the Ombudsman, after inviting and considering objections from the successor, it is fair and reasonable in all the circumstances of the case to treat the successor as answerable for the relevant act in any respect (and whether jointly with any other person or otherwise).

(4) For the purposes of paragraphs (2)(b)(i) and (3)(a) the transfer –

(a) may be direct, or through any other person or persons and through any number of transactions; and

(b) may be by agreement of the relevant provider (with the successor or any other person), by operation of law, as part of the winding up of the relevant provider, or in any other manner.

11 Timing conditions

(1) The timing conditions are that –

(a) the act to which the complaint relates occurred on or after 1st January 2010;

(b) the complaint is not referred to the OFSO before the complainant has, in the opinion of an Ombudsman, given the respondent a reasonable opportunity to deal with it; and

(c) the complaint is referred to the OFSO on or before the expiry of the relevant time-limit, as determined under paragraphs (4) to (8).

(2) For the purpose of paragraph (1)(b), the Ombudsman must consider all the relevant circumstances (including any relevant direction, code of practice, guidance, or other rule or standard, issued by or on behalf of the Commission), but must not treat a reasonable opportunity as extending beyond –

(a) 3 months after the date on which, in the opinion of the Ombudsman, the respondent first had sufficient information to be able to start to investigate the complaint; or

(b) if sooner, the date on which the respondent notifies the complainant that the respondent will take no further action on the complaint for any reason.

(3) An Ombudsman may treat the timing condition in paragraph (1)(b) as satisfied if, in the opinion of the Ombudsman, there is some exceptional reason justifying the investigation of the complaint by the OFSO without the respondent having a reasonable opportunity to deal with it.

(4) For the purpose of paragraph (1)(c) the relevant time-limit is –

(a) if the abbreviated time-limit applies, that time-limit;

(b) if the abbreviated time-limit does not apply, the general time-limit.

(5) The general time-limit is the period ending whichever is the later of –

(a) 6 years after the act to which the complaint relates; and

(b) 2 years after the complainant could reasonably have been expected to become aware that he or she had a reason to complain in relation to the act complained of.

(6) The abbreviated time-limit –

(a) is the period ending 6 months after the first day on which all of the internal procedure conditions are met; and

(b) applies if –

(i) all of the internal procedure conditions are met, and

(ii) the general time-limit has not expired when the abbreviated time-limit expires.

(7) The internal procedure conditions are –

(a) that the respondent has established a procedure for handling complaints in relation to the relevant financial services business to which the complaint relates;

(b) that the procedure conforms to a model procedure published by the OFSO, or otherwise requires the respondent to investigate the complaint, to attempt to resolve it and to notify the complainant of the result;

(c) that the respondent notifies the complainant in writing that the respondent has applied the procedure to the complaint and regards the procedure as exhausted;

(d) that that notification is given within 3 months after the date on which, in the opinion of the Ombudsman, the respondent first had sufficient information to be able to start to investigate the complaint; and

(e) that the respondent, on notifying the complainant under sub-paragraph (c), informs or reminds the complainant in writing –

(i) of the complainant’s right to refer the complaint to the OFSO, giving details of a means by which the OFSO may be contacted,

(ii) of the effect of the abbreviated time-limit, specifying the date on which it expires, and

(iii) if the respondent has reason to believe that the general time-limit may expire before the abbreviated time-limit, of the need for the complainant to check the general time-limit.

(8) An Ombudsman may –

(a) treat the general or abbreviated time-limit as suspended during any period throughout which, in the opinion of the Ombudsman, the complainant could not reasonably be expected to pursue the complaint for any reason relating –

(i) the complainant being a minor,

(ii) the complainant’s lack of mental capacity,

(iii) some other impediment affecting the complainant and justifying the suspension in all the circumstances;

(b) treat the timing condition in paragraph (1)(c) as satisfied if, in the opinion of the Ombudsman, there is some other exceptional reason justifying the investigation of the complaint by the OFSO despite the expiry of the relevant time-limit.

(9) The Minister may, on the recommendation of the OFSO, by Order –

(a) amend paragraph (6)(a) to extend or reduce the period of the abbreviated time-limit;

(b) amend the internal procedure conditions in paragraph (7).

Part 4

Handling of Complaints by OFSO

12 Initial handling of complaints referred

(1) When a complaint is referred to the OFSO, the OFSO must –

(a) examine whether the complaint is one which may be so referred under Part 3; and

(b) if it is not, reject it.

(2) If the complaint is one that may be referred to the OFSO, the OFSO may –

(a) examine whether there are compelling reasons why it is inappropriate for the complaint to be dealt with by the OFSO; and

(b) if there are, reject it.

(3) Without prejudice to the generality of paragraph (2)(a), the reasons referred to in that sub-paragraph include (subject to whether the reason is compelling in the particular case) that –

(a) the complaint has no real prospect of success, such as where –

(i) the complaint is frivolous or vexatious,

(ii) the complainant has not suffered, and is unlikely to suffer, compensatable loss, within the meaning of Article 16(3), or

(iii) the complaint is evidently misconceived even on the complainant’s version of the facts;

(b) the subject matter of the complaint has already been appropriately dealt with, such as where –

(i) the respondent has already made an offer of compensation, or of a goodwill payment, that is still open for acceptance and is fair and reasonable in relation to the circumstances alleged by the complainant,

(ii) the subject matter of the complaint has previously been considered or rejected by the OFSO, and the complainant presents no evidence that is likely to affect the outcome and was unavailable to the complainant at the time of the previous consideration or rejection,

(iii) the subject matter of the complaint has been the subject of legal proceedings in which a final decision has been made, or

(iv) the subject matter of the complaint has been finally dealt with by an independent complaints scheme or dispute-resolution process that is comparable to the OFSO;

(i) the subject matter of the complaint is the subject of current legal proceedings, and those proceedings are not stayed for the purpose of enabling the matter to be referred to the OFSO,

(ii) the subject matter of the complaint is being dealt with by an independent complaints scheme or dispute-resolution process that is comparable to the OFSO,

(iii) the complaint cannot be determined without deciding on a significant doubtful point of law, and the need for resolution of that point by a court outweighs the benefits of the OFSO procedure, or

(iv) it would be more appropriate for the subject matter of the complaint to be dealt with by an arbitration scheme, or another complaints scheme or dispute-resolution process, that is comparable to the OFSO and to which the complainant can reasonably be expected to resort;

(d) the subject matter of the complaint is inappropriate for the OFSO, such as where the complaint is about –

(i) employment matters, where the complainant is an employee or former employee of a respondent,

(ii) investment performance, as opposed to negligent selection or management of investments,

(iii) the legitimate exercise of the respondent’s commercial judgement, or

(iv) a decision by the respondent exercising a discretion under a will or trust, including any failure to consult the complainant before exercising such a discretion in a case where there is no legal obligation to consult; or

(e) it would be inappropriate to deal with the complaint in the circumstances, such as in the absence of consent from another potential complainant whose interests would be unreasonably prejudiced by proceeding without his or her consent.

(4) Rejection under paragraph (1)(b) or (2)(b) is to be by notice in writing to the complainant and respondent, setting out the reasons for the rejection and any provision for review.

(5) Nothing in this Article prevents an Ombudsman determining a complaint in the respondent’s favour on grounds for which the complaint could have been rejected under this Article.

(6) The functions under paragraphs (1) to (4) must be delegated to an Ombudsman, or to another member of the OFSO’s staff, and must not be carried out by the board, a member of the board, a committee or a member of such a committee.

(7) The OFSO must publish its policy on –

(a) the factors that will be considered in deciding whether to reject complaints under this Article;

(b) the delegation of functions under paragraphs (1) to (4); and

(c) its arrangements for review of decisions to reject a complaint, if such a decision is delegated to a person other than an Ombudsman.

(8) The Minister may by Order, on the recommendation of the OFSO, amend any or all of paragraphs (2)(a) and (3)(a) to (e) to limit the reasons for which a complaint may be rejected, if it appears expedient to do so in order to align those reasons with any equivalent reasons in the law of any other jurisdiction or with any European or international standard relevant to Ombudsman schemes.

13 Complaint to be handled as Ombudsman sees fit

(1) If a complaint is not rejected under Article 12, the Principal Ombudsman must secure that it is allocated to an Ombudsman to supervise the investigation of the complaint with a view to mediation, referral, determination or resolution by any other means.

(2) The Ombudsman to whom the complaint is allocated must –

(a) handle the complaint in such manner as he or she considers most appropriate for the clarification of the issues and generally for the just handling of the complaint; and

(b) have regard to the primary function of the OFSO under Article 3(1), and in particular, so far as it appears to the Ombudsman appropriate to do so, seek to avoid –

(i) formality in handling the complaint, and

(ii) any need for legal representation for either party.

(3) Subject to paragraphs (2) and (5), the Ombudsman may handle the complaint as he or she sees fit.

(4) Without prejudice to the generality of paragraph (3), the Ombudsman –

(a) may make such enquiries of the complainant and respondent and of any other person as he or she considers appropriate;

(b) is not bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before courts;

(d) may at any stage indicate a provisional view on any issue and invite comment from both parties on that view;

(e) may invite comment from both parties on a preliminary draft of the determination, or may issue a determination without such a prior invitation, if the Ombudsman is satisfied that it is not necessary in the circumstances.

(5) The Ombudsman must not take account of evidence in determining a complaint unless –

(a) both parties have had an opportunity to see and comment on the evidence; or

(b) the evidence has been disclosed to the respondent and not to the complainant, but the Ombudsman is satisfied in the exceptional circumstances of the case –

(i) that a fair determination cannot be made without taking account of that evidence, and

(ii) that it is necessary not to disclose that evidence to the complainant, in order to preserve the confidentiality of information revealed by that evidence.

(6) The complainant and the respondent must assist the Ombudsman in the discharge of the Ombudsman’s duties under paragraph (2).

14 Allocation of functions in relation to handling of complaints

(1) Only an Ombudsman may make a determination of a complaint.

(2) The Ombudsman to whom the complaint is allocated may authorize any other of the OFSO’s staff (not being a board member or committee member), to perform any other function in relation to a complaint, including but not limited to –

(a) investigation of the complaint;

(b) mediation of the complaint;

(3) A person performing a function described in paragraph (1) or (2) in relation to a complaint is entitled to do so free from any interference from any other person, except the Ombudsman to whom the complaint is allocated or a person (other than a board member or committee member) who acts at the direction of that Ombudsman.

15 Determination

(1) An Ombudsman, when determining a complaint, must do so by reference to what is, in the opinion of the Ombudsman, fair and reasonable in all the circumstances of the case.

(2) Without prejudice to the generality of paragraph (1), the Ombudsman, must take into particular account –

(a) the relevant law;

(b) any relevant direction, code of practice, guidance, or other rule or standard, issued by or on behalf of the Commission;

(d) what the Ombudsman considers to have been relevant good industry practice at the time of the act to which the complaint relates.

16 Awards and directions

(1) If a complaint is determined in favour of the complainant, the determination may include –

(a) an award against the respondent of payment, in money or money’s worth, of such amount (“a money award”) as the Ombudsman considers –

(i) to represent compensation for compensatable loss as defined in paragraph (3), and

(ii) to be fair and reasonable in all the circumstances of the case;

(b) a direction that the respondent take such steps in relation to the complainant as the Ombudsman considers to be fair and reasonable in all the circumstances of the case.

(2) For the purposes of a money award or a direction under paragraph (1) the Ombudsman –

(a) may include an amount or step even if a court could not order that amount to be paid or that step to be taken; and

(b) may seek –

(i) to put the complainant into the position that he, she or it would have been in but for the matter complained of,

(ii) to put the complainant into the position that he, she or it would have been in if the respondent had carried on its business fairly and reasonably in relation to the matter complained of, or

(iii) to achieve any other result appearing fair and reasonable to the Ombudsman in all the circumstances of the case.

(3) Compensatable loss is –

(a) financial loss;

(b) material distress or material inconvenience; or

suffered by the complainant as a result of the act complained of.

(4) The Minister may by Order specify a maximum amount that may be included in a money award in respect of compensatable loss under paragraph (3)(b) or (c).

(5) The steps that may be included in a direction under paragraph (1)(b) do not include –

(a) the payment of money or money’s worth; or

(b) any step the effect of which is to give the complainant a benefit that has a monetary value to the complainant that, if it had formed part of a money award, would have resulted in a contravention of paragraph (7).

(6) If the Ombudsman is satisfied that a respondent has failed to comply with a direction under paragraph (1)(b), the Ombudsman may add to the determination a money award in respect of that failure.

(7) The total money award in respect of a complaint may not exceed the monetary limit, being £150,000 or such other amount as may be specified by the Minister by Order.

(8) If the Ombudsman considers that fair compensation requires payment of an amount exceeding the monetary limit, the Ombudsman may recommend that the respondent pay the complainant the balance.

(9) A money award –

(a) may provide for the amount payable under the award to bear interest at a rate and as from a date specified in the award (but not so as to take the total over the limit in paragraph (7) on or before the time when the determination becomes binding); and

(b) is recoverable by the complainant as a debt due from the respondent.

(10) The OFSO may assist or act on behalf of the complainant in recovering an award under paragraph (9)(b), if –

(a) the complainant requests the OFSO to do so, or appears unable so to request and unable to enforce the award otherwise; and

(b) it appears to an Ombudsman to be necessary to do so in order to maintain respect among potential respondents for determinations under this Law.

(11) A determination may include provision that any copy of the determination disclosed by any person (and in any manner, including indirectly) to any person other than the complainant or the respondent must be redacted –

(a) to exclude the identity of the complainant or any information from which that identity can be ascertained; and

(b) exceptionally, to exclude any other information that the Ombudsman considers should be private.

(12) The Ombudsman must –

(a) before making a determination, inform the complainant of the effect of paragraph (11)(a); and

(b) include in the determination a provision under paragraph (11)(a) if the complainant so requests.

17 Costs

(1) An Ombudsman may, on determining a complaint, award costs –

(a) against the respondent in favour of the complainant;

(b) against the respondent in favour of the OFSO.

(2) Costs must not be awarded unless, in the opinion of the Ombudsman –

(a) the payer was responsible, through improper or unreasonable conduct or unreasonable delay, for causing additional resources to be deployed, or expenses to be incurred, by the payee in dealing with the complaint; and

(b) the costs represent a reasonable contribution to those resources deployed, or expenses incurred.

(3) For the purpose of paragraph (2) the payer is the person against whom the costs are awarded, and the payee is the person in whose favour they are awarded.

(4) An Ombudsman making an award of costs may order that the amount payable under the award bears interest at a rate and as from a date specified in the determination.

(5) An amount due under an award of costs is recoverable as a debt due to the person in whose favour the award was made.

18 Notification and finality of determinations

(1) Within a reasonable time after determining a complaint the Ombudsman must give a written statement of the determination to the respondent and to the complainant.

(2) The statement must –

(a) give the Ombudsman’s reasons for the determination;

(b) require the complainant to notify the Ombudsman, on or before a date specified in the statement and by a means so specified, if the complainant accepts the determination; and

(3) If the complainant notifies acceptance in accordance with paragraph (2)(b), the determination binds the respondent and the complainant.

(4) If paragraph (3) does not apply, the determination is not binding.

(5) After the date specified under paragraph (2)(b), a determination that is not binding nevertheless becomes binding if –

(a) the complainant has not notified the Ombudsman that the complainant rejects the determination;

(b) the complainant notifies the Ombudsman that the complainant wishes to accept the determination and gives details of compelling reasons why the complainant could not reasonably have been expected to notify in time; and

(c) the Ombudsman, after inviting representations from the respondent, is satisfied that those reasons are compelling and that it would be unjust not to allow the complainant to accept the determination out of time.

(6) No appeal lies against a binding determination.

(7) Neither the complainant nor the respondent may institute or continue legal proceedings in respect of a matter which was the subject of the complaint, after a determination of the complaint becomes binding.

(8) The Ombudsman must notify the respondent and the complainant of each of the following events, as the case may be –

(a) when a determination becomes binding under paragraph (3);

(b) when a date specified under paragraph (2)(b) passes without the determination becoming binding; and

(c) when a determination becomes binding, or remains not binding, following a decision of the Ombudsman under paragraph (5)(c).

(9) A copy of a determination on which appears a certificate signed by an Ombudsman, stating that the determination has become binding, is evidence that the determination has become binding.

(10) Such a certificate purporting to be signed by an Ombudsman is to be taken to have been duly signed unless the contrary is shown.

Part 5

Information

19 Powers to obtain documents and information

(1) In this Article –

“party” means the complainant or the respondent in a complaint;

“document” includes a document within the meaning of the Electronic Communications (Jersey) Law 2000[18] and an electronic record within the meaning of that Law.

(2) The Ombudsman may, by notice in writing given to a party to a complaint, require that party to produce a document that –

(a) is specified in the notice, or is of a description so specified; and

(b) appears to the Ombudsman to be likely to be necessary or useful for the investigation or determination of the complaint.

(3) The party must produce the document before the end of such reasonable period as is specified in the notice.

(4) A respondent who, without reasonable excuse, contravenes paragraph (3) is guilty of an offence and liable to a fine.

(5) If a party contravenes paragraph (3), the Ombudsman may require the party to state, to the best of his or her knowledge and belief, where the document is.

(6) If a document is produced in response to a requirement imposed under paragraph (2), the Ombudsman may –

(a) retain the document or take copies or extracts from it; and

(b) require the person producing the document to provide an explanation of the document.

(7) If a person claims a lien on a document, its production under this Article does not affect the lien.

(8) A person who requires, for the purpose of the person’s business, any document retained under this Article, and who requests that document, must be supplied with a copy as soon as practicable.

(9) The Ombudsman may, by notice in writing given to a party to a complaint, require that party to provide information that –

(a) is specified in the notice, or is of a description so specified; and

(b) appears to the Ombudsman to be likely to be necessary or useful for the investigation or determination of the complaint.

(10) The party must provide the information –

(a) before the end of such reasonable period as may be specified in the notice; and

(b) in such manner or form, if any, as may be specified in the notice.

(11) A statement made by a person in response to a requirement under paragraph (6)(b) or a notice under paragraph (9) may not be used by the prosecution in evidence against the person in any criminal proceedings, except proceedings under paragraph (15).

(12) The Ombudsman may, relying wholly or partly on an inference drawn from any contravention by a party of any requirement of or under this Article –

(a) determine any issue in the complaint to which the information or document sought appears to be relevant; or

(b) in the case of a contravention by a complainant, reject the complaint.

(13) Paragraph (12) applies irrespective of whether a contravention, by a respondent, amounts also to an offence under paragraph (4).

(14) Nothing in this Article requires the disclosure or production by a person to an Ombudsman of information or documents that the person would in an action in court be entitled to refuse to disclose or produce on the grounds of legal professional privilege.

(15) A person is guilty of an offence, and liable to imprisonment for a term of 2 years and to a fine, if the person provides information to the OFSO, knowing that it is false in a material particular and intending it to be used by the OFSO for the purpose of any function under Part 4.

(16) For the purpose of paragraph (15) it is irrelevant whether the information –

(a) is contained in a document or not; or

(b) is provided under this Article or not.

(17) No proceedings for an offence under this Article may be instituted except by or with the consent of the Attorney General.

20 Financial Services Commission to provide information for levy

(1) The OFSO may request the Commission to provide details that –

(a) are required by the OFSO to enable it to calculate or raise a levy under paragraph 4 of Schedule 2 in relation to any year;

(b) are held by the Commission; and

(i) are registered with the Commission to carry on any relevant financial services business falling within any of sub-paragraphs (a) to (e) of Article 9(1),

(ii) hold (or are otherwise authorized by) a permit from the Commission to carry on any such business, or

(iii) are registered persons, within the meaning of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008[19], in relation to whom the Commission is the relevant supervisory body for the purpose of that Law in respect of any relevant financial services business falling within Article 9(1)(g) of this Law.

(2) The Commission –

(a) must provide the details requested under paragraph (1) in a timely manner; and

(b) may provide the details –

(i) along with other information, if the resources required to separate the details would unduly prejudice the performance of other functions of the Commission, and

(ii) in any format in which the details are held, or in any format requested by the OFSO, at the option of the Commission.

21 Restricted information and permitted disclosure

(1) A person who receives information (“restricted information”) relating to the business or other affairs of any person –

(a) under or for the purposes of Part 4, or for the purpose of calculating or raising a case-fee or levy under paragraph 3 or 4 of Schedule 2; or

(b) directly or indirectly from a person who has so received it,

is guilty of an offence and liable to imprisonment for a term of 2 years and a fine if he or she discloses the information without the consent of the person to whom it relates and (where sub-paragraph (b) applies) the person from whom it was received.

(2) This Article does not apply to information that –

(a) is disclosed in the course of a public hearing held by an Ombudsman under Article 13;

(b) is contained in or derived from a determination, unless the determination includes provision prohibiting the disclosure of that information under Article 16(11);

(d) is disclosed in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it.

(3) This Article does not preclude the disclosure of information –

(a) for the purpose of enabling or assisting the OFSO or any person acting on its behalf to discharge any of its functions, other than its functions under Article 22;

(b) by the OFSO or any person acting on its behalf –

(i) to the Viscount,

(ii) to the Comptroller and Auditor General for the purpose of enabling or assisting the carrying out of any of the Comptroller and Auditor General’s functions in relation to the OFSO,

(iii) to the Commission, or to any person acting on behalf of or appointed by or at the request of the Commission, for the purpose of enabling or assisting the Commission or that person to exercise any function of the Commission or any function for which the person was so appointed, or

(iv) to any other person for the purpose of enabling or assisting that person to exercise, in Jersey and in relation to financial service providers, any function conferred on that person by or under any enactment;

(c) with a view to the investigation of a suspected offence, or with a view to the institution of, or for the purposes of, any criminal proceedings (whether the offence or proceedings are under this Law or otherwise);

(d) in connection with any other proceedings arising out of this Law, or with any proceedings conducted by or on behalf of the Commission under any of its functions; or

(e) without prejudice to the generality of sub-paragraph (a), by the OFSO to a body appearing to the OFSO to be equivalent to the OFSO in another jurisdiction, if it appears to the OFSO that disclosing the information would enable or assist the OFSO to discharge its functions.

(4) The States may by Regulations amend paragraphs (2) and (3) by –

(a) adding further persons or bodies to or by whom disclosure may be made and specifying in each case the purpose for which disclosure of information may be made;

(b) amending the circumstances in which disclosure may be made to or by any person or body specified in those paragraphs, including the purposes for which and conditions in which such disclosure may be made.

(5) No proceedings for an offence under this Article may be instituted except by or with the consent of the Attorney General.

22 Provision of general information by OFSO

(1) Without prejudice to the generality of the functions of the OFSO under this Law, the OFSO may in particular provide –

(a) information and guidance about the OFSO and its procedures, intended for actual or potential complainants or respondents or other users of the OFSO;

(b) information and guidance about the OFSO’s experience of complaints, and what may be learnt from that experience;

(d) information to the Commission on general patterns in complaints indicating contraventions of any requirement imposed or enforced by the Commission, or on other issues relevant to the Commission’s functions;

(e) information to any department of the States responsible for trading standards, or to any other body with similar responsibility, on general patterns in complaints in relation to financial service providers not regulated by the Commission.

(2) This Article does not permit the disclosure of any information if that disclosure constitutes an offence under Article 21.

Part 6

Miscellaneous and Final

23 Co-operation between OFSO and Commission

(1) Without prejudice to Article 20, the OFSO and the Commission must each take such steps as it considers appropriate to co-operate with the other in the exercise of their functions.

(2) The OFSO and the Commission must prepare and maintain a memorandum describing how they intend to comply with paragraph (1).

(3) The OFSO must publish the memorandum, as in force from time to time, and ensure that an electronic copy is freely available to the public.

24 Criminal liability of directors and similar officers

(1) This Article applies if an offence under this Law, committed by a limited liability partnership, a separate liability partnership or a body corporate, is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of –

(a) a person who is a director, manager, secretary or other similar officer of the body corporate, or a partner of the partnership; or

(b) a person purporting to act in any such capacity.

(2) That person –

(a) is also guilty of the offence; and

(b) is liable in the same manner as the body corporate or the partnership to the penalty provided for the offence.

(3) If the affairs of a body corporate are managed by its members, this Article applies in relation to acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.

25 Consequential and related amendments

(1) The States may, by Regulations, amend any enactment other than this Law for the purpose of making such transitional, consequential incidental, supplementary or savings provisions as they consider necessary or expedient in respect of any provision made by or under this Law.

(2) After Article 31(5)(a) of the Data Protection (Jersey) Law 2005[20] there is inserted the following sub-paragraph –

“(aa) any function conferred on the Office of the Financial Services Ombudsman or on an Ombudsman, under the Financial Services Ombudsman (Jersey) Law 2014[21];”.

(3) At the end of Regulation 37 of the Alternative Investment Funds (Jersey) Regulations 2012[22] there is added the following paragraph –

“(3) Without prejudice to the generality of paragraph (1)(c), Regulation 35 does not preclude the disclosure of information by the Commission to the Office of the Financial Services Ombudsman or to an Ombudsman, within the meaning of the Financial Services Ombudsman (Jersey) Law 2014[23] –

(a) to comply with a duty of the Commission under Article 20 of that Law; or

(b) for the purpose of enabling or assisting that Office or Ombudsman to exercise any function under that Law (including the raising of a levy).”.

(4) At the end of Article 44 of the Banking Business (Jersey) Law 1991[24] there is added the following paragraph –

“(3) Without prejudice to the generality of paragraph (1)(c), Article 42 does not preclude the disclosure of information by the Commission to the Office of the Financial Services Ombudsman or to an Ombudsman, within the meaning of the Financial Services Ombudsman (Jersey) Law 2014[25] –

(a) to comply with a duty of the Commission under Article 20 of that Law; or

(b) for the purpose of enabling or assisting that Office or Ombudsman to exercise any function under that Law (including the raising of a levy).”.

(5) At the end of Article 28 of the Collective Investment Funds (Jersey) Law 1988[26] there is added the following paragraph –

“(3) Without prejudice to the generality of paragraph (1)(c), Article 26 does not preclude the disclosure of information by the Commission to the Office of the Financial Services Ombudsman or to an Ombudsman, within the meaning of the Financial Services Ombudsman (Jersey) Law 2014[27] –

(a) to comply with a duty of the Commission under Article 20 of that Law; or

(b) for the purpose of enabling or assisting that Office or Ombudsman to exercise any function under that Law (including the raising of a levy).”.

(6) In Article 38 of the Financial Services (Jersey) Law 1998[28], after paragraph (1)(a) there is inserted the following sub-paragraph –

“(aa) without prejudice to the generality of sub-paragraph (a)(iii), by the Commission to the Office of the Financial Services Ombudsman or to an Ombudsman, within the meaning of the Financial Services Ombudsman (Jersey) Law 2014[29] –

(i) to comply with a duty of the Commission under Article 20 of that Law, or

(ii) for the purpose of enabling or assisting that Office or Ombudsman to exercise any function under that Law (including the raising of a levy);”.

(7) At the end of Article 31 of the Insurance Business (Jersey) Law 1996[30] there is added the following paragraph –

“(3) Without prejudice to the generality of paragraph (1)(c), Article 29 does not preclude the disclosure of information by the Commission to the Office of the Financial Services Ombudsman or to an Ombudsman, within the meaning of the Financial Services Ombudsman (Jersey) Law 2014[31] –

(a) to comply with a duty of the Commission under Article 20 of that Law; or

(b) for the purpose of enabling or assisting that Office or Ombudsman to exercise any function under that Law (including the raising of a levy).”.

(8) At the end of Article 36 of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008[32] there is added the following paragraph –

“(3) Without prejudice to the generality of paragraph (1)(a), Article 35 does not preclude the disclosure of information by a supervisory body to the Office of the Financial Services Ombudsman or to an Ombudsman, within the meaning of the Financial Services Ombudsman (Jersey) Law 2014[33] –

(a) where the supervisory body is the Commission, to comply with a duty of the Commission under Article 20 of that Law; or

(b) for the purpose of enabling or assisting that Office or Ombudsman to exercise any function under that Law (including the raising of a levy).”.

26 Orders and Regulations

(1) An Order or Regulations under this Law may contain such transitional, consequential, incidental, supplementary or savings provisions, other than an amendment of this Law, as appear to the Minister or the States (as the case may be) to be necessary or expedient for the purposes of the Order or Regulations.

(2) A power under this Law to amend, by Regulations, any provision of this Law includes the power to make such transitional, consequential, incidental or supplementary amendments to any other provision of this Law as appears to the States to be necessary or expedient.

27 Citation and commencement

(1) This Law may be cited as the Financial Services Ombudsman (Jersey) Law 2014.

(2) Parts 1, 2 and 6 and Schedules 1 and 2 come into force on registration.

(3) Parts 3 to 5 and Schedules 3 and 4 come into force on such day or days as the States may by Act appoint.

m.n. de la haye

Greffier of the States

SCHEDULE 1

(Article 2(3))

Constitution of OFSO

1 Appointment of board members

(1) The Minister must, by instrument in writing, appoint 2 board members (subject to the minimum and maximum numbers under Article 2(2)) from among persons nominated by the Chairman.

(2) The Chairman, before nominating a member, and the Minister, before appointing a member, must seek the views of the Appointments Commission established by Article 17 of the Employment of States of Jersey Employees (Jersey) Law 2005[34] on the appointment (without prejudice to the powers of the States or the Appointments Commission under Article 15 of that Law).

(3) The Minister must, at least 2 weeks before appointing a board member, present to the States a notice of his or her intention to make the appointment.

(4) The Chairman may nominate a person only if that person –

(a) is not a member of the States; and

(b) has applied to be appointed or re-appointed as a board member and has complied with sub-paragraph (6) in respect of the application.

(5) An Ombudsman, and any member of the OFSO’s staff, may not hold office as a board member.

(6) In making nominations and appointments, the Chairman and the Minister must –

(a) seek to ensure that persons nominated or appointed are prepared in particular –

(i) to maintain the independence of the OFSO as set out in Article 3(4) and paragraph 11 of this Schedule, and

(ii) to act in the public interest, rather than as representatives of any particular interest;

(b) ensure that the majority of the board members are not financial service providers or persons whose business involves representing financial service providers; and

(c) have regard to the desirability of securing that there is such a balance as the Chairman or Minister considers appropriate (subject to clauses (a)(ii) and (b)) between –

(i) persons with experience of working as or for financial service providers,

(ii) persons with experience of using, other than as or for financial service providers, the services of financial service providers,

(iii) persons with experience of providing services similar to any of those provided by the OFSO, and

(iv) persons with experience of the financial, legal and other aspects of management of bodies similar to the OFSO.

(7) A person (the “nominee”) must not be nominated unless he or she has provided –

(a) a statement setting out the nominee’s interests, direct or indirect, in any relevant financial services business, or in business carried on outside Jersey that would be relevant financial services business if carried on in Jersey; and

(b) an instrument authorizing the provision to the Minister of information as to whether the person has been charged with, or convicted of, an offence –

(i) under customary law or under any enactment, or

(ii) against any law of a country or territory outside Jersey.

(8) The Minister must, in the instrument appointing a board member, specify a period for that appointment of not less than 3 years (subject to paragraph 4) and not more than 5 years.

(9) A person appointed as a board member holds and vacates office in accordance with the terms of his or her appointment, subject to this Law.

(10) The terms of appointment must be such as to secure the independence of board members in the performance of their functions.

(11) The rights and obligations of the OFSO, and the validity of the performance of its functions, are not affected by –

(a) a vacancy in the office of Chairman or board member; or

(b) a defect in the appointment of a person as Chairman or as a member of the board.

2 Appointment of Chairman and designation of Deputy Chairman

(1) The Minister must appoint the Chairman of the board –

(a) in the case of the first such appointment, and in any other case where there are no board members, from among persons appearing to the Minister to be suitable for the position (subject to paragraph 1(5)); and

(b) in any other case, from among board members appearing to the Minister to be so suitable.

(2) Before appointing a Chairman, the Minister must seek the views of the Appointments Commission established by Article 17 of the Employment of States of Jersey Employees (Jersey) Law 2005 on the appointment (without prejudice to the powers of the States or the Appointments Commission under Article 15 of that Law).

(3) The Minister must, at least 2 weeks before appointing a Chairman, present to the States a notice of his or her intention to make the appointment.

(4) When appointing a Chairman the Minister must determine the period of the appointment, expiring before or on the same date as the person’s appointment as a board member.

(5) A person appointed as a Chairman holds and vacates office in accordance with the terms of his or her appointment, subject to this Law.

(6) The Minister may re-appoint a serving Chairman (and references in this paragraph to appointment include re-appointment).

(7) The Chairman must designate another board member as Deputy Chairman.

(8) When –

(a) the Chairman is unable to act through incapacity or absence; or

(b) there is a vacancy in the office of Chairman,

the Deputy Chairman must perform the functions of the Chairman under paragraph 1 and any functions delegated to the Chairman under paragraph 8(3)(a).

3 Remuneration and expenses of board members

(1) The OFSO must pay to the board members –

(a) such remuneration as it may determine, subject to any maximum limit directed by the Minister (who may direct different limits in respect of the Chairman, Deputy Chairman and any other description of board member); and

(b) reasonable out of pocket expenses occasioned in the course of carrying out their duties.

(2) Any maximum remuneration directed by the Minister after the appointment of a board member does not operate to reduce the remuneration previously determined by the OFSO in respect of that board member, but does limit any subsequent increase.

4 Cessation of office as board member

(1) A person ceases to be a board member if –

(a) he or she resigns from office by giving not less than one month’s notice in writing to the Minister;

(b) the Minister terminates his or her appointment under sub-paragraph (2); or

(2) The Minister may terminate the appointment of a board member, other than the Chairman, after –

(a) consulting the Chairman, or, if paragraph 2(8) applies –

(i) the Deputy Chairman in relation to any board member other than the Deputy Chairman, or

(ii) such board member or members as the Minister sees fit in relation to the Deputy Chairman; and

(b) satisfying himself or herself that the board member –

(i) has been absent from meetings of the board for a period longer than 3 consecutive months without the permission of the board,

(ii) has become bankrupt,

(iii) is incapacitated by physical or mental illness for a significant period, or

(iv) is otherwise unable or unfit to discharge the functions of a board member.

(3) The Minister must, not more than 2 weeks after terminating the appointment of a board member, report to the States that the Minister has terminated the appointment.

(4) A person’s appointment as board member expires if –

(a) the period for which the person was appointed expires without re-appointment;

(b) the person becomes a member of the States;

(d) the person’s appointment as Chairman is terminated under paragraph 5(2); or

(e) the person completes 10 years (whether consecutive or in aggregate) of service as a board member.

5 Cessation of office as Chairman

(1) A person ceases to be the Chairman if –

(a) he or she resigns from office as Chairman by giving not less than 2 months’ notice in writing to the Minister;

(b) his or her appointment as Chairman is terminated under sub-paragraph (2); or

(2) The Minister may terminate the appointment of the Chairman if the Minister is satisfied that the Chairman –

(a) has been absent from meetings of the board for a period longer than 3 consecutive months without the permission of the board;

(b) has become bankrupt;

(d) is otherwise unable or unfit to discharge the functions of the Chairman.

(3) The Minister must, not more than 2 weeks after terminating the appointment of the Chairman, report to the States that the Minister has terminated the appointment.

(4) A person’s appointment as Chairman expires if –

(a) the period for which he or she was appointed expires without re-appointment; or

(b) the person ceases to be a board member.

6 Procedure at meetings

(1) Except as otherwise provided in this Law, the board may determine its own proceedings.

(2) The quorum for the board is a majority of the board members.

(3) At a meeting of the board –

(a) if the Chairman is present, he or she is to preside;

(b) if the Chairman is not present but the Deputy Chairman is present, the Deputy Chairman is to preside;

(c) if neither the Chairman nor the Deputy Chairman is present, the board members present must elect one of their number to preside.

(4) At a meeting of the board –

(a) each board member has one vote on each matter for deliberation; and

(b) if a vote is tied, it is to be taken to have been lost.

(5) A resolution is a valid resolution of the board, even though it was not passed at a meeting of the board, if –

(a) it is signed or assented to by a majority of board members; and

(b) proper notice of the proposed resolution was given to all board members.

(6) The board must keep proper minutes of its proceedings, including minutes of any business transacted in accordance with sub-paragraph (5).

7 Disclosure of interest and criminal charges

(1) If a board member has any direct or indirect personal interest in the outcome of the deliberations of the board in relation to any matter –

(a) the board member must disclose the nature of the interest at a meeting of the board in person or by means of a written notice brought to the attention of the board;

(b) the disclosure must be recorded in the minutes of the board; and

(c) the board member must withdraw from any deliberations of the board in relation to that matter and must not vote upon it.

(2) A board member may disclose the nature of an interest for the purpose of sub-paragraph (1)(a) by giving a general notice that he or she should be regarded as interested in any matter concerning a particular organization, partnership or body corporate, the members or directors of which include –

(a) that board member; or

(b) a person through whom that board member has an indirect interest.

(3) A board member must notify the Minister as soon as practicable after being charged or convicted of an offence –

(a) under customary law or under any enactment; or

(b) against any law of a country or territory outside Jersey.

8 Committees and delegation

(1) The board may authorize the transaction of its business by committees, established by the board, that consist of board members alone or together with staff of the OFSO or other persons appearing to the board to be appropriate for the committee.

(2) The functions of appointing the Principal Ombudsman under Article 4(1) and of designating an Ombudsman under Article 5(1)(b) may be exercised only by the board.

(3) The OFSO may, subject to Article 14, delegate any of its other functions under this or any other enactment wholly or partly to –

(a) the Chairman;

(b) one or more board members;

(d) an Ombudsman; or

(e) any other member of the OFSO’s staff.

(4) Nothing in this paragraph –

(a) applies to a function reserved by or under this Law to an Ombudsman or to the Principal Ombudsman; or

(b) authorizes the OFSO to delegate this power of delegation.

(5) The delegation of a function under this paragraph –

(a) does not prevent the performance of that function by the OFSO itself; and

(b) may be amended or revoked by the OFSO.

9 Ancillary functions

(1) The OFSO may do anything reasonably necessary or expedient for or incidental to any of its functions, so far as is not prohibited by any enactment.

(2) Without prejudice to the generality of sub-paragraph (1), the OFSO may in its corporate name –

(a) sue and be sued;

(b) enter into contracts; and

10 Seal

(1) As a body corporate, the OFSO may have and use a common seal.

(2) The application of the seal is to be authenticated by the signature of a person authorized (generally or specifically) by the board for the purpose.

(3) If a document purports to be duly executed under the seal, that document is to be –

(a) received in evidence; and

(b) taken to be duly executed, unless the contrary is proved.

11 Independence from Minister and States

(1) The OFSO and the Ombudsmen are independent of the Minister and of the States.

(2) Sub-paragraph (1) is without prejudice to –

(a) any provision of this Law, including in particular paragraph 12, or of any other enactment; and

(b) any obligation to comply with any condition lawfully attached to any funding accepted by the OFSO from the States.

(3) Sub-paragraph (1) is not to be construed as preventing the OFSO from being an independently audited States body for the purposes of the Public Finances (Jersey) Law 2005[35].

(4) Despite sub-paragraphs (2) and (3) –

(a) the OFSO is not to be regarded as exercising functions on behalf of the Minister or the States;

(b) the Ombudsmen and the OFSO’s staff, board members and committee members are not to be regarded as employees of the States; and

12 Directions and guidance from Minister

(1) The Minister may give specific directions to the OFSO as to –

(a) the format and content of its accounts and annual report under paragraph 1 of Schedule 2;

(b) the setting of case-fees under paragraph 3 of Schedule 2;

(2) The Minister may give general directions to the OFSO in respect of its functions under Article 22(1)(a) and (b).

(3) The Minister may give guidance to the OFSO in respect of any matter on which specific or general directions may be given.

(4) Directions and guidance must be given in writing.

(5) The OFSO must –

(a) act in accordance with any specific directions given under sub-paragraph (1) and any general directions given under sub-paragraph (2); and

(b) have regard to any guidance given under sub-paragraph (3).

(6) The Minister must not give guidance or general directions unless he or she –

(a) has first consulted the OFSO and such other persons as appear appropriate to the Minister; and

(b) considers that the giving of that guidance or direction –

(i) is necessary in the public interest, and

(ii) will not compromise the independence of the OFSO.

13 Limitation of liability

(1) A protected person is not liable in damages for any act in the exercise or purported exercise of any relevant function.

(2) Sub-paragraph (1) does not apply –

(a) if it is shown that the act was in bad faith; or

(b) so as to prevent an award of damages made in respect of an act on the ground that the act was unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000[36].

(3) In sub-paragraph (1) –

(a) a relevant function is a power, duty or other function that may or must be exercised or performed under this Law or under any enactment under this Law; and

(b) a protected person is –

(i) the OFSO,

(ii) the board,

(iii) a board member,

(iv) a committee member,

(v) an Ombudsman,

(vi) any other person who exercises the relevant function as a member of the OFSO’s staff, or

(vii) any other person exercising a relevant function, if any enactment provides that this paragraph is to apply to that person when exercising that function.

SCHEDULE 2

(Article 2(4))

Finances of OFSO

1 Accounts, audit and reports

(1) The OFSO must –

(a) keep proper accounts and proper records in relation to the accounts;

(b) prepare accounts in respect of each financial year and a report on its operations during that year; and

(2) The accounts of the OFSO must distinguish clearly between amounts received as case fees, levy and other income.

(3) The Minister must lay a copy of the accounts and report prepared by the OFSO before the States not later than 2 months after receiving them from the OFSO.

(4) The OFSO must publish each report.

(5) The accounts of the OFSO must –

(a) be audited by auditors appointed in respect of each financial year by the board and qualified for appointment as auditors of a company by virtue of Article 113 of the Companies (Jersey) Law 1991[37]; and

(b) be prepared in accordance with generally accepted accounting principles and show a true and fair view of the profit or loss of the OFSO for the period and of the state of the OFSO’s affairs at the end of the period.

(6) This Article is without prejudice to any additional requirements in relation to accounts that are imposed by the Public Finances (Jersey) Law 2005[38] or any other enactment.

(7) In this paragraph, and in paragraph 2, “financial year” means the period beginning with the day on which this Schedule comes into force and ending with the 31st day of December next following, and each subsequent period of 12 months ending with the 31st day of December.

2 Budget

(1) The OFSO must, before the start of each financial year (or as soon as practicable after that start, in the case of the first such year), adopt an annual budget which has been approved by the Minister.

(2) The OFSO may, with the approval of the Minister, vary the budget for a financial year at any time after its adoption.

(3) The annual budget must include an indication of –

(a) the distribution of resources deployed in the operation of the OFSO; and

(b) the amounts of income of the OFSO arising or expected to arise from the operation of the OFSO.

(4) The board must secure –

(a) that the establishment and operation of the OFSO are funded primarily by financial service providers, in a manner that maintains the OFSO’s independence from those funding it; and

(b) that the service provided by the OFSO is generally free to complainants.

(5) Accordingly, the fees under paragraph 3 and the levy under paragraph 4 must be set at such a level as is necessary that, in aggregate and taken with any other resources of the OFSO, they –

(a) raise sufficient income to enable the OFSO to carry out its functions under this Law; and

(b) provide a reserve of such amount as the OFSO considers necessary for carrying out such functions.

(6) Nothing in sub-paragraph (5) is to be read as requiring the OFSO to set any case-fee or levy in any particular financial year, if the board considers that its duty under sub-paragraph (4)(a) can be met without doing so.

3 Case-fees

(1) The States may by Regulations provide for fees (“case-fees”) to be payable by respondents to the OFSO in respect of complaints against them.

(2) Without prejudice to the generality of sub-paragraph (1), Regulations under that sub-paragraph may –

(a) give the OFSO the power to prescribe a scheme of case-fees, by publishing the scheme or otherwise;

(b) allow such a scheme to set different case-fees on any basis, including in respect of different descriptions of financial service provider, such descriptions including in particular descriptions by reference to –

(i) whether the provider is registered with or holds a permit or other authorization from the Commission under a Law mentioned in Article 9(1), and

(ii) whether the provider has volunteered to be liable for a levy under paragraph 4;

(i) require payment of case-fees at or in respect of any stage of the handling of a complaint by the OFSO, or a later time when a levy is payable by a respondent, or at any other time, and

(ii) provide for the OFSO to waive case-fees in circumstances specified in the Regulations or at its discretion;

(d) require the OFSO, before prescribing or varying such a scheme, to consult on it, and to refer an increase in a fee to the Bailiff to be considered by Jurats if that increase is disputed by a consultee or in other circumstances specified in the Regulations;

(e) provide for enforcement of payment of case-fees, including powers to demand information required in order to calculate fees.

4 Levies

(1) The States may by Regulations provide for levies to be payable by financial service providers to the OFSO in respect of the expenses of the OFSO that are not met by case-fees under paragraph 3.

(2) Without prejudice to the generality of sub-paragraph (1), Regulations under that sub-paragraph may –

(a) prescribe descriptions of financial service provider that must pay a levy;

(b) prescribe other descriptions of financial service provider that may volunteer to pay a levy, in return for lower case-fees or for other favourable terms in relation to any fees or levies;

(c) distinguish in any manner, for the purposes of clauses (a) and (b), between different descriptions of financial service provider, such descriptions including in particular descriptions by reference to whether the provider is registered with or holds a permit or other authorization from the Commission under a Law mentioned in Article 9(1);

(d) provide for the manner in which the total amount required by the OFSO in levies is to be determined;

(e) give the OFSO the power to demand information from persons who may be liable to pay a levy, being information required in order to calculate the levy;

(f) give the Commission the power to demand such information on the OFSO’s behalf;

(g) specify (or permit the Minister to determine) limits to the amounts that may, in any period, be raised in total by way of levies, or charged to any one financial service provider;

(h) give the OFSO the power to prescribe a scheme, by publishing the scheme or otherwise, under which the liability for the levy is to be divided among those liable, the amounts of levy are to be calculated, and the persons liable are to be notified;

(i) prescribe the time and manner in which levies must be paid;

(j) provide for appeals against or reviews of decisions in relation to levies, and for the effects on liability to pay pending determination of the appeal or review;

(k) provide for enforcement of payment of levies (including enforcement of provision of information required in order to calculate levies), including orders for payments of costs of enforcement by persons connected with the person liable to pay.

5 Other fees, donations and borrowing

(1) Without prejudice to the other means by which the OFSO may receive funds to enable it to perform its functions, the OFSO may –

(a) contract to charge a fee for providing any service, information or other item in pursuance of any of its functions, if it is not obliged to provide that service or item gratuitously to the person with whom it contracts;

(b) accept a grant or donation, whether or not subject to conditions, but only if it considers that it can satisfactorily maintain its independence, integrity and reputation; and

(2) The Minister may, after consulting the Minister for Treasury and Resources, prescribe by Order either or both of –

(a) a maximum amount up to which the OFSO may borrow; and

(b) a requirement for the OFSO to obtain approval before borrowing, in a manner specified and from a person specified in the Order (whether the Minister or any other person).

6 Reserve and investment

The OFSO may, in accordance with any guidelines set by the Minister for Treasury and Resources –

(a) accumulate a reserve of such amount as it considers necessary; and

(b) invest that reserve and any other of its funds and resources that are not immediately required for the performance of its functions.

7 Exemption from income tax

The income of the OFSO is not liable to income tax under the Income Tax (Jersey) Law 1961[39].

SCHEDULE 3

(Article 9(1)(h))

Relevant Pension Business

1 Relevant pension business defined

Relevant pension business is any business so far as it comprises the choice, establishment or operation of a pension scheme, within the meaning of paragraph 2.

2 Pension scheme

(1) A pension scheme is a fund, scheme or other arrangement, constituted in one or more instruments or agreements, that falls within either or both of sub-paragraphs (2) and (3).

(2) A fund, scheme or other arrangement falls within this sub-paragraph if it is, or is held out as being or as capable of being –

(a) a fund described in Article 131G(1) of the Income Tax (Jersey) Law 1961[40];

(b) a “registered pension scheme” or a “recognised overseas pension scheme”, as each is defined in section 150 of the Finance Act 2004 of the United Kingdom, as amended from time to time; or

(c) recognized under legislation of any country or territory other than Jersey and having an effect equivalent to that of the legislation mentioned in clauses (a) and (b).

(3) A fund, scheme or other arrangement falls within this sub-paragraph if it has, or is held out as having or as being capable of having, effect so as to provide benefits to or in respect of persons –

(a) on retirement from an employment or all employment; or

(b) in similar circumstances.

(4) For the purpose of sub-paragraph (3) it is irrelevant whether the fund, scheme or other arrangement –

(a) has any effect on any liability to tax;

(b) has, or is held out as having or as being capable of having, effect so as to provide benefits to or in respect of other persons or in other circumstances linked to death, age or employment.

SCHEDULE 4

(Article 9(1)(i))

Relevant credit business

1 Relevant credit business defined

Relevant credit business is any business so far as it comprises –

(a) provision of credit under credit agreements;

(b) credit reference agency business;

(d) debt-counselling;

(e) debt-collecting; or

(f) debt administration,

as those terms are defined by the following paragraphs of this Schedule.

2 Credit

Credit includes –

(a) a cash loan;

(b) a loan secured against immoveable property, whether by hypothecation or by mortgage or in any other manner;

(c) the financial accommodation provided in the letting of goods (as defined in the Supply of Goods and Services (Jersey) Law 2009[41]) under a hire-purchase agreement (as so defined), or in the selling of goods under a conditional sale agreement (as so defined); and

(d) any other form of financial accommodation.

3 Credit agreement

A credit agreement is an agreement under which credit is provided to a person (“the debtor”), being an agreement between that debtor and the person providing the credit (“the creditor”).

4 Credit reference agency business

Credit reference agency business is the furnishing of persons with information relevant to the financial standing of other persons, being information collected for that purpose by the person furnishing the information.

5 Debt-adjusting

Debt-adjusting is, in relation to debts due under credit agreements –

(a) negotiating with the creditor, on behalf of the debtor, terms for the discharge of a debt;

(b) taking over, in return for payments by the debtor, the debtor’s obligation to discharge a debt; or

6 Debt-counselling

Debt-counselling is the giving of advice to debtors about the liquidation of debts due under credit agreements.

7 Debt-collecting

Debt-collecting is the taking of steps to procure payment of debts due under credit agreements.

8 Debt administration

Debt administration is the taking of steps –

(a) to perform duties under a credit agreement on behalf of the creditor; or

(b) to exercise or to enforce rights under such an agreement on behalf of the creditor, so far as the taking of such steps is not debt-collecting.