August 2021 – Japanese Law and the Asia-Pacific

Guest Blog: Pandemic Pressure Points –Economics Governance and Society in Japan

Written by: Joseph Black (CAPLUS law student Intern, 2021) [with updates from Prof Luke Nottage]

On 25 August 2021, the Australian Network for Japanese Law (ANJeL), the Australia-Japan Society of New South Wales (AJS), the Australia-Japan Research Centre (AJRC), the Japan Studies Association of Australia (JSAA) and the Centre for Asian and Pacific Law (CAPLUS) delivered a timely seminar entitled “Pandemic Pressure Points: Economics, Governance and Society in Japan”. The webinar [recorded here] was moderated by Dr Rowena Ward, JSAA Treasurer and Senior Lecturer in Japanese studies at the University of Wollongong. Panellists were Professor Yasuko Hassall Kobayashi, Associate Professor at Ritsumeikan University’s College of Global Liberal Arts (and Honorary Associate Professor, ANU College of Asia and the Pacific); ANJeL co-director Professor Luke Nottage from the University of Sydney Law School; and Professor Shiro Armstrong, AJRC director and Associate Professor of economics at the Australian National University (also co-editor of the East Asia Forum blog). Closing remarks were given by Masahiko Kiya, Consul-General of Japan in Sydney, and also Patron of AJS and on ANJeL’s Advisory Board. We had the privilege to explore diverse and topical themes: the impact of the pandemic on Japanese governance and its legal system, the impact of the pandemic on the Japanese economy, how the pandemic has disadvantaged vulnerable groups, and, among other themes, the emergence and potential of digitalisation in Japan. [Comparing developments in Japan with China, Indonesia and Malaysia, as part of an ANJeL/CAPLUS/CAPI (UVic) webinar around Prof Victor Ramraj’s edited book on COVID-19 in Asia, see the 28 May 2021 webinar recording here.]

Dr Ward commenced the substantive part of the seminar by sharing graphs reflecting vaccination and case numbers in Japan. While the number of cases has substantially increased since the middle of June 2021, deaths have recently come down compared to the 7-day average (~7 compared to 32), and have been kept very low by international standards even during earlier waves. Turning to age and sex statistics, males, especially in their 80s, are generally at a higher risk of death than females, and recently, there have been virtually no women in their 30s who have died from COVID. Around 40% of Japanese have received two doses. This number is somewhat higher than in Australia, which has also ramped up vaccinations over the last two months.

Following the statistics, Professor Kobayashi presented and dissected the economic disparity between women and men in the Japanese labour market amid the pandemic and the general social picture. Professor Kobayashi noted that women have generally had less income than men (~251.0 to 338.0); have been subject to precarious, part-time jobs at a higher rate than men; and have experienced more unemployment than men. Women with child/ren had the highest unemployment rate (11.5% compared to 4.2% for men and 9.1% for women) according to May 2020 statistics. As Professor Armstrong later suggested, the actual rate of unemployment figure may be unknown for all women (and men), as the unemployed may not have started looking for employment and are therefore not incorporated in unemployment statistics. Professor Kobayashi noted that there has been an increasing number of telephone consultations for domestic violence (skyrocketing from around 9,000 in January 2020 to over 17,000 between March and April 2020). Furthermore, women have found themselves tasked with ever-more domestic responsibilities, and would like men to participate more in the household than pre-pandemic (21% of tasks to about a quarter).

Professor Armstrong turned to the Japanese economy, and discussed the immediate impacts of the pandemic on the economy. He noted that, while the economy did not shrink this quarter, we may miss the ‘Olympic bounce’ that historically accompanies the Olympics (Tokyo was in a state of emergency and we did not see the type of tourism that follows the Olympics). Nonregular workers, women, young people, the elderly, and the vulnerable in Japanese society have particularly experienced financial hardship. Unlike Australia, Japan has provided limited stimuli, and it has taken considerable time for Japanese to receive checks and masks.

Later, Professor Nottage discussed Japanese law before and amid the pandemic. Japan has been comparatively unusual in pandemic management [but rather like eg Sweden] by not imposing criminal or other legal sanctions on individuals, but instead relying mainly on community norms and self-responsibility to limit movement and COVID-19 spread. One question is whether this provides another example of what Professor John Haley identified as a persistent pattern of “authority without power” in Japanese legal history, meaning authorities don’t have or want to invoke legal powers. An illustration is the practice of informal “administrative guidance” to influence business activity, quite common until the 1980s.

However, Professor Nottage observed that with the COVID-19 pandemic, the government did have constitutional power to extend emergency powers to restrict business activity (which it eventually legislated for, but still in a soft manner compared to Australia and other countries) and even to restrict movement by citizens. The government seems to have decided not to introduce harder lockdown measures because legally they still have to be proportionate, and Japanese citizens and firms generally act responsibly anyway. Another reason is that compensation should be paid if constraints are legislated, and the Japanese government already has high levels of national debt. The response has arguably struck quite a good balance, if we focus on the very low death rates (as the government seems to have done from the outset of the pandemic) combined with benefits from keeping the economy largely open. As one Tokyo-based law professor remarked, a visitor nowadays wouldn’t really know that Japan was going through a global pandemic, except for people wearing masks in crowded situations, somewhat fewer commuters as more work or have university studies from home, and some organisations restricting numbers and hours of operation.

The recent reliance mainly on self- and community responsibility does sit somewhat uneasily with the reforms implemented after an all-of-government report on justice system reform, aimed at making the law more part of everyday life in Japan. Those changes to civil and criminal justice, as well as the expansion of legal education and professionals, were aimed at allowing businesses more flexibility instead of ex ante regulation by public authorities, but improved processes to provide ex post remedies for misbehaviour through more functional courts or alternative dispute resolution systems. But in public health, especially in crises like a pandemic, prevention is usually better than cure. There are downsides, too, in moving socio-economic ordering in an overly legalistic direction.

Professor Nottage also mentioned some areas where the pandemic has had significant impact on Japan’s legal system, drawing on a series of YouTube interviews with various experts in Japanese law, funded through the Japan Foundation Sydney for ANJeL and the JSAA. Japan’s contract and consumer law systems seems to be responding comparatively well, but the pandemic challenges have forced the courts to bring forward plans to digitalise their still mostly paper-based procedures. By contrast, the rapid worldwide shift to remote hearings in international arbitration and mediation creates opportunities for newly established ADR institutions in Japan, but also significant competition.

The webinar also had a variety of questions and answers during the question segment, in the Sydney Law School podcasts recording. For further developments and perspectives, the AJRC is holding a Japan Update 2021 online seminar on 8 September 2021 over 10:00AM-3:00PM AEST.

***

Joseph Black is a Juris Doctor student at the University of Sydney and anticipates commencing his Masters of International Law program from February 2022. Joseph is an intern with the CAPLUS and is interested in Japanese Law, Chinese Law, Indonesian Law, East Asian Studies, and other fields.

Asia ADR Week 2021 session on roles of in-house counsel [& ‘errors of law in arbitration’]

[Updates: A. Also in August 2021, I chaired a presentation via Monash University on “Errors of Law in Arbitration – Revisited”, with a recording here. Dr Benjamin Hayward argued that a tribunal’s application of a substantive law different from that expressly chosen by the parties, or not applying the conflict of law provisions of the seat (and any chosen Rules) where such substantive law is not expressly chosen, could constitute an error of applicable procedure and thus a ground for challenging the consequent arbitral award.

B. My co-authored article on the new ACICA Rules (mentioned at 7 below), including comparative references to Japan and other Asian jurisdictions, is available in manuscript form: Nottage, Luke R. and Dreosti, Julia and Tang, Robert, The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture (September 26, 2021). Journal of International Arbitration, 38:6, 2021 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3931086

C. My co-authored article empirically examining the “formalisation” of international arbitration, and the diminishing influence of non-lawyers (or even in-house counsel) across key nodes of influence, is available in manuscript here (and shortened for a forthcoming Elgar book co-edited by Shahla Ali, Giorgio Colombo et al on “Sustainable Diversity in International Arbitration”): Nottage, Luke R. and Teramura, Nobumichi and Tanna, James, Lawyers and Non-Lawyers in International Arbitration: Discovering Diminishing Diversity (September 20, 2021). Available at SSRN: https://ssrn.com/abstract=3926914]

As part of the “Asia ADR Week” of events for 2021, coordinated by the Asian International Arbitration Centre based in Kuala Lumpur, as session was scheduled for the first day of the main conference – Thursday 19 August 4-5pm AEST (2-3pm KL time) – on the topic of “Starting In-House: The Role of General Counsel of Multinational Corporations in ADR”. [A recording is available on request for my USydney students.] Agreed session contributors were myself as moderator and:

Ms Debolina Partap (Wockhardt Limited, general counsel based in Mumbai)

Ms Esther Chow (Kone Elavator (M) Sdn Bhd, general counsel based in KL)

Mr Nick Longley (Holman Fenwick Willan, based in Melbourne; formerly in a law office in Hong Kong as well as in-house for four years with a Japanese civil engineering company and now significant engagement with Korean firms)

Mr Cameron Ford (Squire Patton Boggs, based in Singapore, and formerly in-house for over a decade)
Mr Raymond Goh (China Tourism Group Corp Ltd, Group general counsel – International, in Hong Kong / China).

The assigned description was: “The role of an in-house counsel in shifting the focal point on dispute resolution from the traditional standpoint of litigation to the innovative vigor of ADR has resulted in the majority of Fortune 1000 companies preferring to use ADR as a means of resolving both international and domestic disputes. This session focuses on the multi-faceted role of in-house counsel in spearheading ADR as a principal means of resolving disputes.” The focus therefore was on evolving in-house counsel perceptions around Asia regarding alternatives to litigation (arbitration, mediation, other Alternative Dispute Resolution) to resolve cross-border disputes. Part of the backdrop is resurgent delays and especially costs in international commercial arbitration despite its continued spread east from the traditional (European then US) venues.

The first part of the session asked some general questions focused on our panelists currently or having worked extensively as in-house counsel [Ms Chow, Ms Partap, Mr Goh, Mr Ford]:

1. How do or should in-house counsel teams nowadays decide generally whether to provide for and/or engage in arbitration, mediation, expert determination or other ADR rather than cross-border litigation?

2. Does or should the approach change if the disputes involve commercial and government parties?

The second part of the session posed some more specific questions:

3. The latest QMUL international arbitration survey (with more than usual Asia-Pacific respondents) confirms the continued popularity of multi-tiered DR clauses, which commit parties contractually to try eg mediation before arbitration (rather than having waiting for the dispute to arise, and then try to achieve agreement to try other ADR before proceeding to pre-agreed arbitration). Yet are such multi-tiered clauses equally negotiated and invoked among companies and legal advisors in the Asian region? See http://www.arbitration.qmul.ac.uk/research/2021-international-arbitration-survey/ [cf eg Japan, Korea (Mr Longley), Malaysia (Ms Chow)]

4. Especially in the region, are there difficulties in enforcing say the mediation step (as a jurisdictional requirement say before being able to proceed to arbitration), and issues in determining the law applicable to that question? Cf eg this US report / chapter for a book / project by Profs Gu and Reyes: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3601337, and recent case law in Hong Kong etc (https://pulse.kwm.com/hong-kong/multi-tiered-dispute-resolution-clauses-what-happens-if-you-dont-comply/) [Mr Longley]

5. What prospects are there for more establishment and use of dedicated centres for mediation, especially in the Asian region (eg already Singapore / SIMC, but also recently Japan / JIMC and Vietnam / VMC)? See eg https://www.jimc-kyoto.jp/. Would it be easier for in-house counsel to promote cross-border mediation if institutional, rather than ad hoc?

6. Why is the 2019 Singapore Mediation Convention, aimed at facilitating enforcement of settlement agreements along the lines of the NYC, attracting many signatures (but not eg from Japan or Australia) but few ratifications? See https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status. What have been experiences in enforcing settlement agreements cross-border in Asia even without this new Convention?

7. Is there declining interest and practice of Arb-Med across Asia (except perhaps in mainland China and to a lesser extent Japan), linked perhaps to more use of separate mediation as part of multi-tiered DR clauses, and/or a sense that Arb-Med is not “global practice” which arbitration institutions and practitioners feel increasingly required to follow? Cf ACICA (for which Mr Longley and I served on the Rules drafting committee) which decided not to proceed with an Arb-Med provision in its 2021 Rules, although modelled on legislative provisions for domestic arbitrations: http://arbitrationblog.kluwerarbitration.com/2021/05/01/is-arb-med-un-australian/ [Mr. Goh]

8. Are there already or likely to be changes towards more use of mediation (either separate, or in Arb-Med) due to the pandemic, or eg has the enforced move to remote hearings etc created enough time, cost and arbitrator availability benefits to maintain adequate attractiveness for international arbitration? Is the recent rise of Expert Determination in Australian domestic dispute resolution driven by arbitration costs and delays in arbitration and litigation, thus likely to carry over into cross-border dispute resolution and beyond the pandemic? [Mr Longley, compared with say Malaysia – Ms Chow, and experiences from Singapore – Mr Ford]

Australasian Consumer Law Roundtable: 1 December @ USydney

Sydney Law School, with support especially from its Ross Parsons Centre, is pleased to host this year’s Roundtable, in hybrid format on 1 December 2021, to discuss recent or emerging research and topics in consumer law and policy. In an informal interactive format, for the last fifteen years the Roundtables invite together experts in consumer law mainly from universities across Australia and New Zealand, but sometimes more widely including from Japan and other parts of Asia or even further afield, as well as some consumer regulators or peak NGO representatives. The event is open to other staff and HDR students from USydney, as the host, and any consumer law academics from Australian, NZ or Asian universities are also welcome to seek permission to attend by emailing luke.nottage@sydney.edu.au

Short presentations for discussion at this year’s Roundtable include the following [not necessarily in the order listed below]. Several involved recent or forthcoming publications that may be made available to the wider public already or after the event.

Samuel Becher (VUW)	“Dark Contracts” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3911528)	Firms design non-transparent consumer contracts. This article documents the multiple non-transparent contractual mechanisms and practices that firms employ in their consumer contracts. Specifically, it delineates how firms use non-transparent tools in almost every possible contractual juncture: from the contract’s nature, scope, and language to contract performance, dispute resolution, change, and termination. The article first documents this non-transparency. Thereafter, it argues that the sum of these non-transparent components is greater than its parts. The aggregated impact of these non-transparency practices undermines fundamental contract law notions and leaves consumers disinformed and disempowered. While firms have a profit incentive to employ non-transparent contracts, bounded ethicality makes it even more unlikely that firms fully realize the harmful consequences of their contracts. Against this backdrop, the article dubs these highly non-transparent consumer contracts “Dark Contracts.” To better tackle the problem of Dark Contracts, the article proposes introducing transparency-related instruments to the law of consumer contracts to tackle this thorny challenge. It further argues that policymakers should design such concepts to (1) allow better scrutiny over firms’ practices and (2) empower consumers to make better-informed decisions.
Jason Harris (Sydney Law School)	“Liability for ACL Breaches Within Corporate Groups and Franchise Systems”	An emerging issue in corporate law concerns contribution orders for underpaid workers whereby the court can deem several entities to be within a ‘contribution order group’ and make another company liable for the unpaid entitlements where they have received the benefit of the work. There are broader contribution order regimes (not just for employee entitlements) in NZ, Ireland and Germany. I wonder whether ACL compensation orders had given rise to problems with corporate groups (i.e. assetless shell companies misleading, while the parent company benefits) and whether accessorial liability under ACL s236 is sufficient to address this? In other words, could contribution orders within corporate groups (loosely defined to include franchise systems) benefit consumers and are they worth looking at? I’ve done a bit of work within corporate law looking at veil piercing doctrines, and there is at least 1 TPA case on making a parent co liable for misleading conduct that was argued on veil piercing grounds (which I argued should have been decided on accessorial liability under the TPA instead).
Jeanne Huang (Sydney Law School)	“The Latest Generation of SEZs: Consumer-Oriented Unilateralism in China’s E-commerce Trade” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3875223)	WTO multilateralism is driven by manufacturers. However, in China, Cross-border E-commerce Retail Import (‘CERI’) has spurred a new, consumer-oriented trade unilateralism. CERI prospers within China’s National Cross-Border E-commerce Pilot Cities, which are Special Economic Zones aimed at using unilateral trade liberalization to meet consumers’ growing demands for high-quality foreign products. CERI enhances consumer benefits beyond reducing customer formalities and tax rates and lowering product prices. It re-conceptualizes consumer protection by treating consumers as diverse individuals rather than as a homothetic group. It also empowers consumers by making them ‘importers’ to minimize behind-the-border trade barriers. CERI warrants a rethinking of WTO multilateralism from its initial focus on corporations and capital owners to a revised focus on consumers.
Mary Keyes and Therese Wilson (Griffith U)	“Protecting Consumers in International Disputes: Arbitration and Jurisdiction Agreements in Australian Law”	The globalisation of markets for consumer goods and services means consumers regularly purchase goods and services from international suppliers. These agreements typically stipulate that consumers must litigate or arbitrate, if a dispute arises, in the suppliers’ home jurisdiction. As in other common law jurisdictions, in Australia there are no rules that deal specifically with the effect of arbitration and jurisdiction clauses in consumer contracts; their effect falls to be determined under the general principles that have been developed in the context of commercial transactions. This article investigates the use of arbitration and jurisdiction agreements involving Australian consumers through an empirical study and evaluates the Australian laws which regulate these agreements. It demonstrates that, while aspects of the current legal regime may have the capacity to protect consumers, such protections will not necessarily be applied. We review a number of recent cases that demonstrate this problem and suggest that changes to the Australian law are required to more explicitly protect consumers.
Benjamin Hayward (Monash Business School)	“‘Free Your Mind’: Using ‘The Matrix’ to Explain the Interaction Between the Australian Consumer Law and the CISG”	For those of a certain age, the conflict between the characters Neo and Agent Smith depicted in ‘The Matrix’ trilogy of movies is well-known and is one of the great rivalries of cinema history. What is not well-understood in the Australian legal context, including amongst lawyers who would be familiar with this Neo/Smith conflict, is the way in which the Australian Consumer Law interacts with the United Nations Convention on Contracts for the International Sale of Goods (the ‘CISG’). Though the CISG excludes consumer transactions from its scope, the fact that it defines those excluded transactions differently to the way in which the Australian Consumer Law defines consumer supplies provides scope for the CISG to displace the otherwise-mandatory ACL consumer guarantees. Analogy with ‘The Matrix’ trilogy provides an excellent basis for explaining this interaction, and ensuring that its implications are understood by the legal profession. Young lawyers and law students are today provided more means than ever to acquaint themselves with the CISG, and to understand its place in Australian law. Anecdotal evidence suggests that a knowledge gap still exists, however, amongst older lawyers – including those who may have grown up watching Neo and Smith’s conflict play out on the silver screen. This presentation is directed at helping address this knowledge gap, and in turns, seeks to contribute to a better professional understanding of the interaction under analysis.
Victoria Stace (VUW)	“Bills, bills, bills. What recent research has revealed about debt collection practices in New Zealand and how the law might respond” (Powerpoints here)	Recent research conducted by Victoria University of Wellington has given insight into the experiences of debtors who find themselves facing debt collection. Financial mentors across the country, who see clients daily in unmanageable debt situations, were asked questions around the conduct of debt collectors, the addition of fees and interest, and use of attachment orders. Particular issue emerged such as the use of intimidation, and use of attachment orders to benefits to collect old debts. This paper discusses the findings of that research and considers how the law can assist to improve standards of behaviour.
Vivien Chen (Monash Business School) with Lucinda O’Brien, Ian Ramsay and Paul Ali	“An Impending “Avalanche”: Debt Collection and Consumer Harm After COVID-19” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3917247)	Debt collection activity is expected to rise significantly in 2021, as financial hardship becomes more prevalent due to the economic impact of the COVID-19 pandemic. Consumer advocates have warned of an impending “avalanche in debt collection” and have called for better enforcement of laws designed to protect consumers from harassment as well as unfair, misleading and deceptive conduct by debt collectors. Women’s groups have also pointed to a rise in economic abuse, and resulting indebtedness, in the context of a general escalation in family violence during the pandemic. This article examines the legal framework governing the Australian debt collection industry. Drawing on recent case law and a series of focus groups conducted by the authors, it outlines law reform and enforcement measures that would better protect consumers from harmful debt collection practices. These include specific measures to address the financial, social and psychological impacts of family violence and economic abuse
Sagi Peari (UWA)	“Consumer Protection Law, Judge Made Law and the Concept of Coherence: Can They Co-Exist?”	Consumer protection law intervenes into the traditional doctrines, principles and concepts of the backbone categories of private law: contract and tort. For instance, consumer law challenges the longstanding limited scope of “unconscionability” and the “implied terms” doctrines of contract law. Within the tort law category, consumer law reconceptualises the fundamental elements of the law of negligence. While significant parts of private law categories remain to be subject to the domain of the judge-made law, the consumer laws operate through legislation. The paper tackles the following two interrelated aspects of the interplay between consumer law legislation and the traditional private law categories: (1) the impact of consumer law legislation on the judge made law; (2) the relation of this legislation to a key philosophical concept of private law- “coherence”.
Catherine Niven (QUT)	“Proposals to Modernise the EU’s General Product Safety Directive: A Blueprint for Australian Reform” [pre-recording of presentation here]	There has been little progress on Australian product safety reforms since the 2019 public consultation on the regulatory impact assessment of introducing a General Safety Provision (GSP). Since this time, the global COVID pandemic has accelerated growth in online shopping, exacerbating the key weakness of the Australian regime: its lack of a GSP. The European Commission (EC) has identified that the growth of e-commerce has decreased the effectiveness of its General Product Safety Directive due to its lack of specificity to online selling and applicability to new e-commerce actors in the product supply chain. In June 2021, the EC commenced public consultation on significant reform proposals aimed at modernising its framework. These include dedicated reforms for online marketplaces with obligations focussed on their place in the product supply chain, specific provisions related to online sales, widening the mandatory incident reporting obligation and using new technologies to conduct product safety recalls. There appears to be significant momentum behind these reforms to be delivered under the New Consumer Agenda of 2020. Could the developments in Europe be an opportunity for Australia to build on the last decade of reform discussion by incorporating key European reform proposals to its product safety regime to elevate the level of consumer protection and create a fairer playing field for Australian businesses?
Geraint Howells (Galway) [Keynote]	“Consumer Product Safety and Online Platform Liability” (Powerpoints here)	Platforms play an increasingly important role in e-commerce. This paper highlights different approaches to making them responsible and potentially liable for dangerous goods. Voluntary, regulatory and civil liability are all potential options being explored in Australia, the EU and US. This paper hopes to prompt discussion about the appropriate way forward.

Jeannie Paterson and Yvette Maker (UMelbourne)	“The Role of Consumer Protection Law in Responding to the Risks of ‘Intelligent’ Consumer Products”	Intelligent consumer products like voice-activated digital assistants potentially offer tremendous benefits to many consumers. They are labour-saving devices that create opportunities to free consumers from mundane tasks and assist them to make more informed and rational decisions. They have also been promoted for their potential to facilitate the activities of daily living for older people and people with disability. Yet while intelligent consumer products may offer convenience and enhanced accessibility, they also carry risks of harm to consumers in relation to violation of privacy, bias and discrimination and interference with decision-making autonomy. This presentation will explore the role of consumer protection law in responding to these risks, with a particular focus on issues of accessibility and equity. It will also consider the role of codes of AI ethics, and the complementary contribution of other fields of law and policy, in addressing matters on which consumer protection law has less to say.
Nicola Howell (QUT) and Jeannie Paterson (Melbourne)	“Remedies for emotional harm in Australian consumer credit law”	Emotional harm is a highly foreseeable outcome of financial stress – whether this arises from borrowing more than is manageable (unsuitable credit), difficulties in repaying credit arising from unforeseen life contingencies (hardship) or not being able to access credit (financial exclusion). Together with co-regulation (AFCA) and self-regulation (eg, Banking Code of Practice), the National Consumer Credit Protection Act now provides an extensive regulatory framework that should help to prevent or reduce financial stress for Australian credit consumers, however, the extent to which this framework can facilitate remedies for emotional harm (and not just financial harm) has not yet been subject to academic consideration. In this paper, we seek to address this gap by examining the current and potential scope for remedies for emotional harm arising from credit law contraventions. We begin by considering the emotional harms which may arise from over indebtedness. We then identify the key statutory provisions specifically aimed at alleviating the effects of unsuitable credit and financial hardship, and the associated remedies for breach. We argue that given the purpose of these regimes it should be open to courts to award remedies aimed at responding to emotional harm. We consider the role of regulators and AFCA in remedial relief responding to emotional harm. We scrutinise the value to consumers of such responses before turning the final part to consider remedies for failure by lenders to engage with the hardship regime and the gaps in this regime in providing real obligations and remedies/redress for breach.
Zofia Bednarz (UNSW)	“Using Consumers’ Data to Determine the Target Market for Financial Products: The Difficult Marriage between Financial Law and Data Protection”	Digitalisation has had a profound impact on financial services, with increasingly precise data profiling of consumers being one of the drivers of profit for the industry in the digital age. However, data profiling may also result in consumer harm that could range from data breaches to unfair pricing, digital manipulation, discrimination, and exclusion of vulnerable consumers. This can be particularly problematic in financial services context due to the consequences it has on consumers’ access to financial products. In this paper I focus on the requirement to determine the target market for financial products and its interplay with privacy and data protection rules. I argue that financial product governance rules requiring target market determination for products will further incentivise data profiling of consumers by financial services providers. I analyse ways in which financial firms may collect and use consumers’ data for the purpose of constructing the target market and confirming that clients who receive offers of products are within this target market. There is a real risk that financial law and data protection frameworks have failed to strike a balance between (surprisingly) competing interests of consumer protection regarding the provision of appropriate financial products and the use of consumers’ data in digital profiling. This means that the new rules on financial products governance may backfire, resulting in unintended consumer harms.
Kate Tokeley (VUW)	“The Power of the ‘Internet of Things’ to Mislead and Manipulate Consumers: A Regulatory Challenge” (https://ndlsjet.com/the-power-of-the-internet-of-things-to-mislead-and-manipulate-consumers-a-regulatory-challenge/)	The “Internet of Things” revolution is on its way, and with it comes an unprecedented risk of unregulated misleading marketing, and a dramatic increase in the power of personalized manipulative marketing. IoT is a term that refers to a growing network of internet-connected physical “smart” objects accumulating in our homes and cities. These include “smart” versions of traditional objects such as refrigerators, thermostats, watches, toys, light bulbs, cars, and Alexa-style digital assistants. The corporations who develop IoT are able to utilize a far greater depth of data than is possible from merely tracking our web browsing in regular online environments. They will be able to constantly collect and share real-time data from inbuilt IoT sensors and trackers such as microphones, cameras, GPS sensors, and temperature sensors. Artificial intelligence (AI) can be used to analyze this raw data in order to gain insights into consumer preferences and behavior, and deliver individualized marketing messages via our IoT devices. The persuasiveness of these marketing messages is likely to be further enhanced if future IoT household assistants are developed to have human-like mannerisms and appearances. This article explains how current laws that prohibit businesses from misleading and deceiving consumers will struggle to operate effectively in an IoT marketing landscape, where questions of who can be held liable, who should be held liable, what communication should be prohibited, and how to ensure enforcement, all become more complicated. It argues that current legal frameworks will need to be re-formulated in order to maintain the ability to prevent deceptive and misleading communication. It also tackles the wider question of whether legal frameworks should be re-formulated so as to add in protections against excessively manipulative marketing. The article points to several potential ways to achieve such re-formulations. Redesigning legal regimes to effectively protect consumers in a new IoT marketing landscape will no doubt be a challenge. The starting point is to confront the fact that there are genuinely difficult problems for which existing regulatory toolkits are ill-equipped to handle.

Kayleen Manwaring (UNSW)	“Enforcement-in-a-box: Computational Implementation of Private Rights”	The rise in use of smart devices and cyber-physical systems has also seen a rise in attempts at technological implementation of methods of enforcement of private rights (such as contract or copyright) by suppliers of services and software supporting those devices and systems. Many of these devices and systems are hybrids of physical object, software, hardware, data and services, and often are capable of being remotely disabled or modified by the software or service provider. This capacity for remote disablement or modification has the potential to be a potent tool for service and software suppliers to regulate an individual’s use of smart devices and cyber-physical systems. These methods may be used to enforce penalties against alleged breaches of private rights without recourse to a judicial or other dispute resolution process. This presentation will report on a work-in-progress project intended to examine these issues. Brownsword has warned that ‘full-scale technological management’ by regulators of prohibited conduct (eg a regulator technologically limiting the speed of a car or disabling it) is the ‘thick end of the wedge’ in relation to ‘destabilising’ the rule of law and degrading the importance of human ‘agency and autonomy’. Pasquale has additionally cautioned that even in circumstances where automated enforcement is efficient, ‘critically important publicly legal values risk being lost or marginalised when dispute settlement is automated.’ This project will examine if this conceptual analysis can be extended to business entities utilising technological management to directly enforce private rights, discussing research questions along the following lines: (1) What harms to individuals, and consequently what detrimental effects on public legal values (such as protection of consumers from abuse of corporate power), might arise from technological implementation in smart devices of private law enforcement methods, such as enforcement of debts, contractual conditions or intellectual property rights? (2) To what extent do existing laws in Australia regulate these harms and detrimental effects? (3) Do legal problems arise in relation to these existing laws? That is, are any of these laws under- or over-inclusive or uncertain? Are there any new harms or detrimental effects arising that are completely unregulated by existing law? (4) How can these harms and detrimental effects be mitigated from a legal (and potentially technological) point of view?
May Fong Cheong (ACU)	“Remedies for Purchasers of Forged Art: The Potential in Section 18 ACL on Misleading Conduct”	Art is acquired for its aesthetic value, for the beauty of that art piece as communicated by the artist. However, art is also increasingly acquired for the authorship of the art – buyers desiring not only art, but the work of a recognised “artist”. The authorship value of well-known artists has seen art pieces fetching skyrocketing prices transforming art as objects of aesthetic expression to art as an investment tool. The ‘commodification’ and ‘financialisation’ of art provide opportunities and economic incentives to produce counterfeits and forgeries posing unseen risk to purchasers of art. Both the art enthusiast and the art investor who pays a price for a work of art are entitled to enjoy, and obtain, that which they were led to believe – that the work is authored by the artist who painted that landscape, that object on the framed canvas piece he or she had paid for. They are entitled to the goods as described, to the attribution given of the art piece and to statements warranting the authorship and authenticity of the art. However, art authentication is a complex process: at the intrinsic level to search the truth to determine its cultural and historic value and at a practical level to protect the economic value of art and the functioning of the art market. The purchaser’s challenge to acquire authentic art pieces is further compounded by the intricacies and anomalies in the art industry; one concerning aspect is the questionable practices of auction houses. As a result, art purchasers find themselves in the precarious position of not knowing if the art pieces hanging in their walls are forged. This paper first considers two legal avenues that a disgruntled art purchaser might pursue: (i) implied conditions of goods corresponding to description in the Sale of Goods legislation; and (ii) consumer guarantees of acceptable quality, and of goods as described, under the Consumer Guarantee Law. It then considers how certificates of authenticity of authorship have been decided under the Uniform Commercial Code and under the New York Arts and Cultural Affairs Law. Finally, the paper investigates recourse to art buyers under the misleading conduct provision in section 18 of the Australian Consumer Law and argues that despite some limitations, this avenue offers the best potential for success for purchasers of forged art.
Luke Nottage (USydney), Jeannie Paterson (UMelbourne) & Erin Turner (Choice)	“Post-Pandemic Rights to Repair and Other Remedies Under the Australian Consumer Law” (PDF of Powerpoints here)	Recent survey evidence from Australia’s peak consumer NGO, for a current inquiry by the Productivity Commission into rights to repair, confirms anecdotal accounts of considerable problems faced by individuals in obtaining Australian Consumer Law remedies for suppliers’ violations of mandatory consumer guarantees (eg of “acceptable quality”, including reasonable durability). Over the last decade, suppliers may have learned not to expressly disclaim ACL obligations (risking enforcement action and fines), but also that consumers need to prove a product defect, and may be particularly prone therefore not to provide remedies since the lockdowns and other impediments to accessing justice since 2020. Our presentation looks at the extent and types of problems experienced, analyses the current ACL regime, and proposes various substantive and procedural reforms to generate better consumer redress and therefore supplier behaviour.