Arbitration Clauses In Investment Advisory Agreements
[More: Virginia ready to ban mandatory arbitration clauses for state-registered counselors] For years, legislators have been working to remove mandatory arbitration clauses in legal agreements relating to consumer rights, employment, agreements and civil rights, as well as agreements between investment professionals and their clients. Depending on the amount of assets they manage, most investment advisors must complete an “ADV form” either with the SEC or with the National Securities Agency in the state where they have their primary location. The ADV form consists of two parts. Part 1 contains information about the consultant`s activities and whether he or she has had problems with regulators or clients in the past, and the second part describes the consultant`s services, fees and strategies and forms the basis of the brochure that RIAs must make available to their clients. RIAs must update their form ADVs at least once a year.  It is not clear that this rule applies to investment advisors who are primarily registered in a state other than Virginia, but who are registered for advisory activities in Virginia. In summary, lawyers representing investment consulting clients who have signed an account agreement with a Delaware legal choice provision should evaluate the applicability of this agreement and the application of its legal choice, in order to ensure effective and thorough representation. We write to express our firm belief that the Securities and Exchange Commission (the “Commission”) should immediately exercise its authority, in accordance with Section 921 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, to prohibit the use of mandatory arbitration clauses in service contracts… If arbitration provides investors with an effective forum to resolve disputes, as some do, investors can choose this option – but they should have a choice. It is equally important that investors are not prevented from bringing a class action under the fine contractual characters imposed by a mandatory waiver clause on collective actions. Arbitration is an alternative settlement of disputes. Instead of taking a case to court, arbitration offers an alternative to finding a solution.
The American Bar Association states that arbitration is private, and the arbitrator has the authority to make a decision on the dispute. Some of the commonly known drawbacks of mandatory arbitration are: in 1986, SEC employees, in the letter to McEldowney Financial Services No-Action, considered that a contractual provision that might lead a client to believe that he or she had waived an available right of action against the investment advisor could be contrary to the provisions of the Anti-Fraud Advisers Act set out in Section 206. If section 206 of the Consultants Act is prohibited, the application of such a contractual provision would be annulled by Section 215 of the Consultants Act. Section 215 (a) declares in nullity any contractual clause requiring a person to waive compliance with a provision of the Consultants Act. This means that a contractual provision designed to maintain a counsellor at a level of care below that required by the Consultants Act is invalid. As such, SEC staff in McEldwoney found that a provision requiring arbitration as the sole dispute resolution forum could not normally be included in a consulting contract if it could reasonably lead the client to believe that it had waived all rights it may have under federal securities laws. In practical terms, the compromise clause at issue at McEldwoney states that “any controversy or claim arising from this contract or its violation is governed by arbitration proceedings in accordance with the commercial arbitration rules of the American Arbitration Association, and the verdict on the arbitration award issued by the arbitrator may be brought to any competent court.” Suppose the complainant is from Missouri and has included Missouri securities law rights in his claim