(a) Definitions.
(1) The term
claim or grievance as used in this section shall mean any
dispute that:(A) Arises out of any
transaction executed on or subject to the rules of a designated contract
market,(B) Is executed or effected
through a member of such facility, a participant transacting on or through such
facility or an employee of such facility, and
(C) Does not require for adjudication the
presence of essential witnesses or third parties over whom the facility does
not have jurisdiction and who are not otherwise available.
(ii) Arises out of any retail forex transaction (as defined in
§
5.1(m) of this chapter).
(2) The term customer as
used in this section includes any person for or on behalf of whom a member of a
designated contract market, or a participant transacting on or through such
designated contract market, effects a transaction on such contract market
except another member of or participant in such designated contract market
Provided, however, a person who is an "eligible contract
participant" as defined in section 1a(18) of the Act shall not be deemed to be
a customer within the meaning of this section.
(3) The term Commission
registrant as used in this section means a person registered under the
Act as a futures commission merchant, retail foreign exchange dealer
introducing broker, floor broker, commodity pool operator, commodity trading
advisor, or associated person.
(b) Voluntariness. The use by customers of dispute settlement procedures shall be voluntary as provided in paragraphs (c) and (g) of this section.
(c) Customers. No Commission registrant shall enter into any agreement or understanding with a customer in which the customer agrees, prior to the time a claim or grievance arises, to submit such claim or grievance to any settlement procedure except as follows:
(1) Signing the agreement must not be made a
condition for the customer to utilize the services offered by the Commission
registrant.
(2) If the agreement is
contained as a clause or clauses of a broader agreement, the customer must
separately endorse the clause or clauses containing the cautionary language and
provisions specified in this section. A futures commission merchant or
introducing broker may obtain such endorsement as provided in §
1.55(d) of
this chapter for the following classes of customers only
(i) A plan defined as a government plan or
church plan in section 3(32) or section 3(33) of title I of the Employee
Retirement Income Security Act of 1974 or a foreign person performing a similar
role or function subject as such to comparable foreign...
