ASEAN Consumer Law Harmonisation and Cooperation: Achievements and Challenges

This is the title of my next book, co-authored with Profs Justin Malbon, Jeannie Paterson and Caron Beaton-Wells in Melbourne, which will be published by Cambridge University Press around the end of this year in its series on “Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration“. It is the first Western-language research monograph detailing significant developments in consumer law and policy across the Association of Southeast Asian Nations, underpinned by a growing middle class and implementation of the ASEAN Economic Community from 2016. Eight chapters examine consumer law topics within ASEAN member states (such as product safety and consumer contracts) and across them (financial and health services), as well as the interface with competition law and the nature of ASEAN as a unique and evolving international organisation. We include insights from extensive fieldwork, partly through several consultancies for the ASEAN Secretariat over 2013-5, to provide a reliable, contextual and up-to-date analysis of consumer law and policy development across the region. The volume also draws on and contributes to theories of law and development in multiple fields, including comparative law (with references also to consumer law developments in Australia, Japan and the EU), political economy and regional studies.

1 Introduction: Backdrop and Overarching Perspectives
This chapter introduces the backdrop to the achievements and challenges experienced as ASEAN has intensified its program of harmonising minimum standards of consumer protection across Southeast Asia, especially over the last decade. A key factor outlined is economic integration both among ASEAN member states and with their wider regional and global economies. Yet diversity among member states (demographics, economic development, legal and political systems, NGOs and press freedom) can influence the timing and extent of consumer law reform and implementation in each country. The chapter ends with summaries of the scope and key lessons of the remaining substantive chapters (examining product safety regulation, consumer contracts, financial and health services, and interaction of consumer law with competition law) as well as the concluding chapter (adding proposals for enhancing more public-private ‘shared regional value’).
2 Theoretical Perspectives on ASEAN and Consumer Law Developments
What is ‘ASEAN’ exactly? Is it a collective noun for describing ten states in Southeast Asia, or is ASEAN something more than that – and if so, what? These deceptively simple questions need answering to understand what has been achieved and what is achievable within and by ASEAN for consumers. This chapter therefore examines what is meant by the so-called ‘ASEAN way’ – a term frequently adopted by key players to explain and justify ASEAN’s role and existence. It also explores the influences of the European Union’s structures and instruments on ASEAN’s use of formal governance mechanisms and its use of concepts such as an ‘economic community’ to define itself. The chapter also considers ASEAN’s meaning and purpose from a range of theoretical perspectives, including: new regionalism; game theory and reciprocity; collective action; and social networks and the networked polity. The chapter further explores ways ASEAN can become more effective in advancing consumer interests through transgovernmentalism, ‘trading up’ and legal transplantation. Some of these perspectives are adopted when examining the topics covered in the following chapters in this volume.
3 Product Safety Law: Fragmented Regulation and Emergent Product Liability Regimes
Appendix A: Food Safety Regulation — Developing Transgovernmentalism
Appendix B: Cosmetics Regulation — Trading Up
Consumer product safety law has become a core element of consumer protection law in almost all ASEAN member states. Reforms began by creating post-market intervention powers for consumer affairs regulators, allowing them to ban or recall goods found to be unsafe; and sometimes pre-market powers, to set minimum safety standards. Yet many general consumer affairs regulators still lack capacity and jurisdiction, especially for pre-market powers, limiting capacity to exercise even post-market regulatory powers and to engage in proliferating cross-border standard-setting networks. The Chapter also examines the relationship between regulators and NGOs, as well as with private litigants who may wish to turn instead to the court system to obtain relief for harm from unsafe goods. Five ASEAN states have enacted strict product liability legislation. Indeed, although inspired by 1985 European Union legislation, the versions in Southeast Asia generally are more pro-plaintiff in various ways. Yet there are almost no court filings. Appendices present two extended case studies: informal networks promoting food standards and safety, and formal agreements harmonising cosmetics regulation.
4 Consumer Contracts in ASEAN: Variation and Change
This chapter explores the themes of procedural and substantive fairness in regulating consumer contracts in ASEAN member states. Most member states have regimes that address conduct by traders that impinges upon consumers’ ability to make free and informed decision about the contracts they enter, with prohibitions on misrepresentation and undue pressure. The treatment of unfair contract terms is less even across the region. Equally, in many circumstances the law that exists ‘on the books’ is not backed up by regulatory oversight. Consumers often lack the recourses to pursue claims of unfair conduct or terms and so an active and responsive regulator is essential to the vitality and effectiveness of the consumer protection regime. Nonetheless, it does not seem overly optimistic to suggest a growing awareness of the relevance of consumer protection in a thriving market economy, including prohibitions on substantive unfairness, or the possibility of a more unified approach consistent with the ASEAN way.
5 Consumer Financial Services: What Role For ASEAN?
This chapter takes a regionalist perspective in exploring ways ASEAN can protect and advance consumer interests regarding consumer finance. Presently, ASEAN, as an organisation, is paying relatively little attention to the opportunities and challenges presented. The chapter explores some of the ‘traditional’ issues arising at the domestic level, including lenders: charging excessive interest rates; misleading and deceiving consumers; and harassing them or engaging in illegal activity when recovering loan repayments. Emerging issues include the rise of fintech. It offers new opportunities for financial inclusion, but also presents new challenges due to the rise of non-financial institution lenders, including those operating online platforms. Lack of proper regulation of these lenders risks regional financial instability and the exploitation of low-income consumers. Given the pace and complexity of change and the increasingly borderless nature of fintech, a regional approach could best assist with developing appropriate responses. The chapter proposes that enhanced shared knowledge and more effective networking amongst key players within ASEAN would advantage the region as a whole.
6 Professional Health Services: ASEAN’s Trade Liberalisation Agenda
Consumer law and policy generally envisages that consumer interests are best advanced by prohibiting abusive marketplace practices and promoting competition. This chapter proposes the framework be sophisticated for the provision of professional health services. Arguably, universal access to health services is a basic human right. Thus, the consumer interest is best understood within a human rights and a marketplace framework. These two frameworks do not always sit comfortably together, as illustrated in this chapter. The chapter explores the impacts of ASEAN’s market liberalisation strategies upon the delivery of professional health services. One strategy involves regional mutual recognition of health qualifications. This could enhance consumer interests by increased movement of medical practitioners to areas of regional need. Conversely, it could lead them to shift from low-income countries where universal access needs are acute to countries where practitioners receive higher incomes. The chapter concludes with an examination of how ‘health tourism’ is being promoted by some ASEAN members for economic benefit. However, these apparent benefits maybe somewhat illusory.
7 Integration with Competition Policies, Laws and Institutions: Opportunities for ASEAN Consumer Protection
This chapter explores the interface between competition and consumer policies, law and institutions as it is emerging in ASEAN. It analyses the reasons for the traditional separation of these two fields, both generally and ASEAN in particular, and then explains the case for an integrated approach to policy-making and a coordinated approach to institutional design, pointing to international examples of such approaches. The chapter considers the evidence of integration and coordination in ASEAN to date, and considers reasons for the functionally silo-ed approach that has been exhibited in most member states thus far. It argues that increased recognition of the positive interdependencies between competition and consumer policies should be a key element of ASEAN’s future development, consistent with theories of networked governance, trading up and contextualised transplantation.
8 Key Reflections and Future Directions
This chapter draws together themes of the earlier chapters to how consumer protection law reform might be advanced in a manner consistent with the evolving ‘ASEAN Way’ in order to effect real and postive change for consumers and markets. We focus on aspects of transgovermentalism and especially ‘shared regional value’ as a way of conceiving and advancing an operational mechanism among ASEAN member states that may lead to effective consumer protection regulation while retaining regional autonomy and diversity.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.