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ORGANIZATION AND FUNCTIONING OF ABDRC
ABDRC is an independent apolitical not-for-profit entity of public interest established under the Government Ordinance no. 38/2015. The purpose of ABDRC is to manage the infrastructure required for alternative resolution of the disputes (ADR) between consumers and the banking and financial institutions in a balanced, reasonable, expeditious and out-of-court manner, working with experts in the banking and financial sector (conciliators) who, according to the procedure chosen by the parties, may either propose or impose a resolution solution for the dispute.
The activity of the Center is steered by a Board formed of 5 members and the ABDRC Director. Only the persons included in the List of ABDRC Conciliators – who are experts in the field, of the highest repute, independent and impartial – handle resolution of disputes. The List of Conciliators is available on the website www.csalb.ro.
The membership of the Steering Board was thus thought so that the parties in dispute are place on equal footing, and the reliability of the overall construction is enhanced. Thus, the members of the Board are designated by the National Consumer Protection Authority, the National Bank of Romania, the Romanian Banking Association. and the consumer associations, and one member is independent and elected by the other four. The Board members approve the underlying policy and strategy for the activity of ABDRC and are independent in their decision-making. They are NOT involved in any review or resolution of disputes, and refrain from influencing or issuing instructions in this respect. Their main task is to make sure that ABDRC has sufficient resources to operate efficiently and independently. Similarly, the Board sets out the resolution procedural rules and the selection criteria applied to the persons who apply to be listed as Conciliators.
ABDRC manages the necessary infrastructure for alternative resolution through two types of procedures: procedure with proposed solution (Conciliation) and procedure with imposed solution (Arbitration), hereinafter referred to as ADR procedures. These procedures are optional, voluntary, and separate from the court proceedings (out-of-court).
When the complaint has not been settled directly with the financial-banking institution, the consumer may approach ABRDC. Conciliators review the situation based on the documents made available by consumers and traders, and propose/impose a solution for dispute resolution. Such solutions can be different from a sentence obtained in court, which strictly applies the provisions of the law, because for ADR, conciliators may also consider the commercial practices and the general law principles, and may also resolve the dispute under the equity law.
The Center is funded from the contributions of the credit institutions and those of the non-banking financial institutions, and from other sources, pursuant to the law, that is “from own resources, formed of fee revenues and amounts charged for services rendered to third parties, and from donations and/or sponsorships”.
Considering the significant increase in the number of legal proceedings during the last years, as well as the lack of trust of consumers of financial and banking services in this market, establishment of the Alternative Banking Dispute Resolution Center comes to restore the balance in the relation between consumers and banks/NBFIs.
In ABDRC, the costs of the disputes are minimal for traders and zero for the consumers who approach the Center, the terms are short and by no means longer than 90 days regardless the procedure chosen, and each case is reviewed and resolved individually, thus preventing inconsistent interpretation or unpredictable solutions.
Conciliators are persons with legal or economic background and training in the financial and banking sector, have at least 10 years of experience in a legal or economic activity, and are persons of the highest repute. Dispute resolution rests exclusively with conciliators. They are independent from the parties to the dispute, and are not paid, directly or indirectly, by them at the time of their appointment to review the case. The list of conciliators who work with ABDRC is available at www.csalb.ro.
No, they are not. Conciliators are collaborators of the center, included in the List of Conciliators after having been validated by the Steering Board of ABDRC.
ADR – ALTERNATIVE DISPUTE RESOLUTION – PROCEDURES
ADR means alternative dispute resolution under specific procedures, meaning out-of-court.
ADR procedures are out-of-court dispute resolution procedures. For ABDRC, we refer to two types of procedures: conciliation and arbitration. In both cases, these are optional and voluntary procedures which are commenced at the request of consumers, and are also free-of-charge for the latter.
Yes, there are. The ADR procedures put in place across the Member States are highly diverse. Some procedures conclude with a decision which can be binding on both parties, or only on the trader. Other procedures conclude with a recommendation. There are ADR schemes which arrange the so-called “hybrid procedures”. For instance, in case of the Dutch Financial Services Complaints Institute, the procedure implies performance of a mediation stage, and if this does not conclude with a resolution for the dispute, arbitration proceedings may be commenced.
- The consumer files an application with ABDRC enclosing thereto the proof of a previous attempt to have the dispute resolved directly with the trader, and the documents/agreements executed with the trader.
- ABDRC serves the conciliation application received to the financial-banking institution in order to obtain the trader’s agreement to enter into one of the ADR procedures.
- If the agreement of the trader to enter into one of the ADR procedures is obtained, the conciliator is randomly appointed. The conciliator is accepted by the parties, or another person from the List of Conciliators is randomly appointed.
- If applicable, the conciliator sets the terms for the conciliation meeting.
- The conciliator proposes the solution which is then submitted to both parties.
- The parties are afforded 15 days to express their agreement/disagreement to the propose solution.
- The consumer may, but is not obliged to, seek independent advice or may be represented or assisted by a third party or by the representatives of the consumer associations in any stage of the procedure;
- The consumer may withdraw from the procedure at any time if they are unhappy with operation or the manner in which the procedure is conducted;
- The consumer has the choice as to whether or not to accept to or follow the proposed solution;
- Involvement in the procedure shall not exclude the possibility of seeking redress through court proceedings;
- The proposed solution may be different from an outcome determined by a court applying legal rules;
- The resolution which the conciliator renders as a result of the acceptance given to the Resolution note by both parties, shall become an enforceable title unless it is challenged in court within 15 days of serving.
- The parties agree to resolve the dispute under this type of procedure. This understanding is called compromise. Such compromise can also result from the consumer filing the application, and financial-banking institution issuing a written agreement in this respect.
- The parties select the arbitrator(s) from the List of Conciliators who work with ABDRC.
- The financial-banking institution submit the Statement of Defence within 10 calendar days.
- The conciliator renders the solution. The dispute is resolved under the agreement between the parties and under the law, considering, if applicable, the general law practices and principle, or, at the request of the parties, the equity law. The resolution is drawn up and signed off within maximum 15 days of rendering.
- The solution is final, binding and enforceable. The solution may be appealed against only by means of an action for annulment with the Bucharest Court of Appeal, pursuant to art. 608 of the Code of Civil Proceedings.
- The solution rendered in the procedure is binding;
- The solution rendered by the Arbitral tribunal is binding on the parties;
- The parties may withdraw from the procedure only before formation of the Arbitral Tribunal;
- Involvement in the procedure shall not exclude the possibility of seeking redress through court proceedings;
- The imposed solution may be different from an outcome determined by a court applying legal rules;
- The procedure is free of charge for the consumer;
- The consumer may be assisted/represented by a Consumer Association which they authorize to this end;
- The consumer may be assisted/represented by an attorney whose fees shall however, be borne by them;
- Resolution of disputes under ADR procedures requires, before submitting the application to the ABDRC, that they would have attempted to have the dispute resolved directly with the trader. Such a direct resolution attempt shall be made evidenced by documents;
- Resolution of disputes under ADR procedures concluded with imposing a solution takes place only if a compromise was executed further to an attempt to have the dispute resolved directly with the trader.
WHAT DO CONSUMERS WHO ARE NOT HAPPY WITH THEIR CONTRACTUAL RELATION WITH THE FINANCIAL-BANKING INSTITUTION NEED TO DO?
- They need to attempt to resolve the problem directly with the bank/NBFI concerned by means of format notices/applications/letters.
- If not happy with the reply thereto, consumers may approach ABDRC.
- ABDRC presents the two types of ARD procedures to consumers.
- Consumers choose the procedure and fill in the application, and ABDRC contacts the financial-banking institution.
- The conciliator is a designated randomly from the List of Conciliators, but he has to be accepted by both parties.
- The conciliator reviews the casefile. He may ask for additional information, evidence, etc.
- The conciliator proposes or imposes a solution, as per the procedure chosen.
WHAT IF I CHOOSE RESOLUTION OF THE DISPUTE WITH THE FINANCIAL-BANKING INSTITUTION UNDER THESE ALTERNATIVE PROCEDURES (OUT-THE-COURT), CAN I THEN GO TO COURT?
ADR procedures are not designed to replace the legal proceedings, nor do they prevent consumers or financial-banking institutions from pursuing their rights to take legal actions. Where a dispute could not be resolved under an ADR procedure the outcome of which is not binding, the parties may then bring up legal actions in connection with that dispute. For the ADR procedures the outcome (solution) of which is binding, the resolution may be set aside in court.
Financial and banking consumer disputes. ABDRC has exclusive management authority as regards the underlying infrastructure of the alternative resolution procedures concluded with proposing or imposing a solution for this type of disputes. ABDRC may be approached by consumers who have a contractual relation with a trader under an agreement. If we refer to commercial banks, we speak of agreements covering the following: current account with or without card, credit or shopping card, deposit, loan, overdraft, treasury operations, currency exchange, deposit certificates. As regards NBFIs, the potential disputes which stem from loan/credit card or leasing agreements may be resolved.
Anyone who has or thinks he has:
- instalments the consumer believes have been abusively increased;
- a loan monitoring fee, or other risk fees considered abusive by consumers;
- the loan declared early due, in disregard of the contractual conditions;
- clauses qualified by consumers as abusive, as regards application of default interests;
- return of the financing fee which – as perceived by consumers – has been as unlawfully charged;
- removal of the monthly monitoring and management fees;
- return of the amount resulted from the excessive increase in the interest rate, as perceived by consumers;
- deregistration of entries in the Credit Register.
Or when you have other reasons to be dissatisfied with the bank or the NBFI you have an agreement with.
However, first of all you need to make sure that:
- you approach ABDRC as natural person, and you have something to be dissatisfied with in connection with a contractual relation with a trader, bank or NBFI.
- before filing an application with our Center, you have already attempted to have the dispute resolved directly with the trader. You can prove you have filed an application with the trader, and attempted to negotiate with then, whether you received a reply within 30 days or not. Keep the copy of such application with the registration number to enclose it afterwards to the casefile submitted to ABDRC.
- application to ABDRC (template here https://csalb.ro/en/request-forms/)
- written proof that you have previously attempted a direct resolution with the bank/NBFI
- banking (loan/current account/card, etc.) and/or collateral agreement, any addenda thereto, statements of account, repayment schedules, etc.
The proof should be in written form. The exchange with the trader should be in written format (on paper, by email, or any other durable medium). We recommend consumers to submit applications in written form, and receive a registration number. In the event that the trader does not reply within 30 days, or the reply was not to the consumer’s satisfaction, the latter may approach ABDRC, enclosing the written proof of a previous attempt to negotiate directly with the bank or the NBFI.
Irrespective of the place you leave in, in the country/abroad, if you have an agreement with a bank/NBFI established in Romania, send us everything by email to [email protected], or by mail to the address str. Sevastopol nr. 24, District 1, Bucharest, or bring them yourselves to the offices of ABRDC.
For consumer, the procedure is FREE OF CHARGE. If the documents are mailed or sent by courier, the consumer bears the shipment costs. Similarly, where consumers employ an attorney/other representative, the costs thereof are also borne by consumers. The procedures shall not take more than 90 days.
- the dispute resolution term is very short compared to legal proceedings;
- the procedure is free of charge for the consumer;
- the solution is rendered for each individual consumer, on a case-by-case basis.
Yes, you can. Consumers can go to courts of law at any time. Also, they can withdraw at any time from the procedure with proposed solution, but not from that with imposed solution. When consumers receive the resolution proposal under the respective procedure, they can either accept or reject it. Even if the solution has been accepted by the parties, consumers and traders are still afforded additional 15 days of service of the resolution to appeal it in courts of law.
The answer is Yes. Pursuant to art. 3 para. (1) letter a) of the Government Ordinance no. 38/2015, consumer is defined as “any natural person or group of natural persons organized in associations”. For groups of consumers, it is important that all consumers share the same claims against the same trader, and group has a representative. Additionally, consumer are also entitled to be represented by an attorney or an Association of Consumers.
IF YOU ALREADY HAVE A COURT SENTENCE FURTHER TO A LAWSUIT WITH A BANK OR NBFI, CAN YOU STILL APPROACH THE ADR CENTER?
Pursuant to art. 18 para. (3) letter a) of the Organization Regulation of ABDRC, the disputes which have already been ruled on under a court judgment or arbitral award will no longer be reviewed by the ADR Center if the case is identical to the one in court. If, however, there are other clauses which have not been covered by the court casefile, then the consumer may still approach the ADR Center. Similarly, when there is a pending lawsuit in which a judgment has not been yet rendered, consumers may approach the ADR Center for an amicable resolution.