Category: Product safety

Consumer Law Compared and Refreshed

[Update of 4 December 2024: in my presentation tomorrow at the annual Australasian Consumer Law Roundtable, hosted by Deakin U in Melbourne’s CBD, I will present an updated version of my 2024 CCLJ article with Prof Souichirou Kozuka comparing consumer law administration, contracts and product safety. This will mention my Submissions (linked below) to three recent federal Treasury-led public consultations (perhaps prompted by a general election due by May 2025!) into (i) facilitating the Australian government adopting foreign standards for minimum safety of specific goods, (ii) adding civil pecuniary penalties for consumer guarantee remedies not provided by suppliers (including regarding safety, as an aspect of “acceptable quality” for goods), and (iii) a generic unfair commercial practices prohibition. Japanese consumer law has none of these features, but each raises interesting issues.]

Yesterday (28 June 2024) I enjoyed attending the ACCC National Consumer Congress in sunny Sydney (program here). This annual invitation-only event provides an excellent opportunity to discuss cutting-edge law and policy issues with new and old colleagues working in Australian state and federal governments, consumer NGOs, businesses and academia (more limited, but I am pictured here with QUT’s Nicola Howell [expert in consumer credit, co-convenor of the academic-focused annual Consumer Law Roundtable] and Dr Catherine Niven [expert in product safety regulation, major contributor to my ARC Discovery Project on child product safety begun before the pandemic- with our last research output published in 2023 here] and Monash Em Prof Justin Malbon [co-author of my 2019 book on ASEAN Consumer Law Harmonisation, with UMelb Prof Jeannie Paterson who had to attend the Congress virtually this year]). It would be good to see more such events bringing together such stakeholders in Japan (compared with in my recent CCLJ article with Souichirou Kozuka), ASEAN and other Asian states.

The first session was on “Buying in Australia – Are We Safe?”. The answer was “No” from panellists including Catherine (except perhaps one speaker). The opening speaker gave a moving account of how long and traumatic the process was to secure a mandatory product safety standard around button batteries, which were fatally ingested by her infant Bella. Another early fatality involving Britney was highlighted in my 2020 piece for The Conversation (leading to an ABC radio interview). That related also to my then Journal of Consumer Policy article arguing that the Australian Consumer Law did need to add an EU-style “general safety provision” (GSP) to fill gaps so suppliers switched to a more pro-active approach to risk assessments to ensure only safe consumer products were put onto the market, rather than waiting for accidents or risks to be identified and then conduct “voluntary” recalls of unsafe goods (mainly then only to avoid potential product liability claims for compensation and/or adverse reputational effects). In my comments at the Congress, I mentioned that after Canada added such a requirement in 2010, its recall rates went down; and when Singapore added a partial GSP (requiring all products to comply with EU, specified American or ISO standards) there were immediately fewer unsafe toys on their market. Yet the Treasury-led Consultation in 2020 into adding a GSP has led nowhere.

As alternatives, it seems, we find from late 2021 a further Consultation about allowing foreign standards to be adopted into the ACL (which I commented was a no-brainer) and another Consultation into allowing civil penalties for suppliers not providing remedies to consumers from defective – including unsafe – products under mandatory consumer guarantees (which I suggested was rather broad-brush and indirect, compared to ex ante regulation).

I also mentioned that unfortunately the written Submissions made by myself and others to all three Consultations have still not been made public. This is also true of the 2023 Consultation into adding to the ACL a general unfair trading prohibition (as under EU, US or Singaporean law). That would go beyond existing ACL prohibitions on misleading or unconscionable conduct to better address eg “dark patterns” facilitated by new technologies (such as “subscription traps” that the ACCC CEO reiterated at the Congress remain a concern). There were moves to make public Submissions to that Consultation (including mine, reproduced here for convenience and giving as an example such a subscription trap laid by The Economist magazine) and they were disclosed from 28 June (the day after the ACCC Congress) noting “79 submissions were received for this consultation, including 8 confidential submissions”. But in principle I believe such consumer law reform consultations should automatically make public submissions unless confidentiality is requested. That is now common good practice across Australian law reform bodies, including the Productivity Commission. In the same vein, Australia’s consumer law reform agencies should publicise at least a short report stating whether and why they may not be proceeding with ACL amendments.

I ended my comments by alerting Congress attendees to new developments in the EU that intersected with concerns raised by the panelists. The new General Product Safety Regulation requires suppliers to document product risk assessments (and implement traceability measures), notify regulators of progress on recalls, set up a public complaints portal (as the US has had for over a decade, but was not recommended in the 2017 ACL Review report) and make mandatory for online platforms some requirements (like responding within set time frames to complaints about unsafe products) that larger firms had adopted voluntarily under the 2018 EU Product Safety Pledge (mirrored by Australia’s 2020 Pledge). The EU Product Safety Pledge has itself been updated, and existing firms have re-signed it, to allow eg regulators to have access to the platforms’ portals to better monitor them for unsafe products.

The EU’s Product Liability Directive, which was adopted in 1992 has also recently been revised to better address new technologies and trends. For example, Article 7 makes an online platform jointly liable for harm if it suggests to an average consumer that products are provided either by the online platform itself or by a recipient of the service who is acting under its authority or control. However a recent comparative law article that Jeannie Paterson co-authored (and I helped with) noted a risk that platforms will avoid this liability potential by website and other disclaimers about exercising control over the suppliers. The article contrasts Californian cases against Amazon and other legal concepts that go further in imposing shared liability on such platforms, including pros and cons of such initiatives.

The second Congress session was on “Justice delayed: strengthening consumer dispute resolution in Australia”. Panellists highlighted persistent problems of access to justice, focusing initially on (prolific) defective vehicles and National Disability Insurance Scheme services. Although Prof Kozuka and I also highlight problems in Japan, I think Australia can do better in various ways. For example, because of the evidentiary issues raised in tribunals or magistrates’ courts, regulators should first more pro-actively use their ACL powers since 2010 to bring representative actions against suppliers who claim for example that cars or other complex products comply with the consumer guarantee of acceptable quality, such as reasonable durability. They can also support consumer NGOs who could run such test cases (eg to to determine how long a mid-value washing machine should last) and then publicise the outcomes, to help facilitate future negotiations and settlements.

Secondly, the NSW Office of Fair Trading should actually use its powers (added before the COVID-19 pandemic) to order suppliers to compensate consumers for up to $3000 in harm caused by products not complying with consumer guarantees, and publicise this among suppliers and consumers. Other jurisdictions should add such powers too, especially as the ACL is supported to be uniform across Australia. It is true that some suppliers may contest such orders. But they will also likely do that if and when the ACL adds powers for all consumers regulators to order civil pecuniary penalties for major failures, as mooted in late 2021 Consultation (paralleled by the Productivity Commission’s recommendations from an inquiry into Rights to Repair). Decisions from tribunals and courts, even at lower levels, will help clarify the meaning of general terms like reasonable durability.

Thirdly, we should introduce effective public complaints registers across Australia. Most jurisdictions lack them. And for example the NSW register does not differentiate by sales volumes or other measures of scale, making it hard for consumers or their advisors to determine if one supplier is really better or worse than others. These and other questions were raised in a 2017 Report by the Productivity Commission and should be revisited to improve access to consumer redress (and indeed informed purchasing decisions).

The third Congress session was on “Regulating for real people: understanding consumer behaviour to drive effective markets”. In his thought-provoking introduction (kindly shared now here), Consumers Federation of Australia chair Gerard Brody highlighted observed limits even with “nudges”, for example regarding electricity contract switching, and asked why suppliers shouldn’t just promise or be required to automatically put customers on the best plan. The CEO of (peak NGO) Consumers NZ pointed out that past consumption patterns may not be a good guide. I also wonder about handing over so much power and data to suppliers, and making consumers too passive (which is partly why for unfair contract terms regulation the price and subject matter cannot be impugned: consumers are assumed to be able at least to investigate and consider those, provided these items are not presented in a misleading way). A better solution might be electricity bills that say “if you switched to our Plan B you would save $XXX dollars” and then the customer could opt-in. [Update of 4 December 2024: after a recent problem with my electricity company in NSW, which had stated something like this on their bills but in a confusing way, I now am more amenable to Gerard Brody’s suggestion for an automatic “upgrade”.]

The Consumers NZ CEO provided an update on the progression of a private Member’s Bill to introduce a right of repair for New Zealand, including around spare parts availability, and likely mandatory labelling about durability (as recommended also by the Productivity Commission’s Right to Repair report). Again, I would add that the EU provides some good lessons for the antipodes (and say Japan). In February 2024 the EU institutions reached provisional agreement to enact the Right to Repair Directive, as part a larger environmental initiative aiming to extend a product’s life cycle and support a circular economy. Relevant features compared to the ACL regime (which for example allows the supplier not consumer to chose between repair and replacement):

“The Directive will require producers to carry out repairs outside of the legal guarantee for products covered by repairability obligations under certain EU ecodesign regulations listed in an Annex … [likely beginning with] certain white goods (including household washing machines, dishwashers and refrigerators), vacuum cleaners, electronic displays, and mobile phones and tablets (among others)

… [requirements for] information on certain spare parts to appear on a website, making them available to all parties in the repair sector and preventing certain practices that can hinder repair – including contractual clauses or certain software- and hardware-related barriers

… [seemingly] loan devices to be provided to consumers while they wait for repair in certain cases and to enable a consumer to opt for a refurbished unit as an alternative

… Under the existing Sale of Goods Directive, the seller is liable to the consumer for any lack of conformity which exists at the time when the goods were delivered and which becomes apparent within two years of that time. In the event of non-conformity, the Sale of Goods Directive sets out a hierarchy of remedies, allowing consumers to initially choose between repair and replacement … to encourage consumers to choose repair over replacement, the legal guarantee under the Sale of Goods Directive would be extended by 12 months following a repair …”.

This EU development also intersects with greenwashing, and the hot topic of the last Congress session – “Lightbulb moments: bold ideas to help consumers play a meaningful role in the green transition”.

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.

Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context

[This is the original draft for a posting that was significantly revised and published under a different title on 29 October 2020 by The Conversation, prompting also interviews/podcasts with ABC National Radio “Life Matters” on 5 November 2020 and “Counterpoint” on 14 December 2020. This work is related to my ongoing ARC-funded joint research project DP170103136 and a JCP article published earlier this year (manuscript on SSRN.com here). A version will be presented and then discussed in the 1 December 2020 webinar for the International Association of Consumer Law (pre-recording available here) and the Consumer Law Roundtable hosted this year by QUT on 3 December. (Last updated: 1 December 2020.)]

The COVID-19 pandemic has heightened our awareness of safety risks, but also the socio-economic costs needed to reduce them. Public health interventions can also collide with human rights and constitutional principles, and undermine state capacity. Australia’s policy-makers and regulators are still facing many difficult choices to manage this new disease.

In consumer law, they and peak NGOs like Choice have also been busy grappling with a range of pandemic-related issues. These range from hand sanitiser quality through to refunds for airfares and other travel services. Nonetheless, hopefully policy-makers can now get back to some unfinished business, as we learn to live with COVID-19 while praying for a vaccine or cure.

In October 2019 the Treasury released its Consultation Regulatory Impact Statement (RIS) entitled “Improving the Effectiveness of the Consumer Product Safety System”. This was part of a suite of reform initiatives agreed after the 2016-7 review of the Australian Consumer Law (ACL), which re-harmonised consumer rights and regulatory powers nationally from 2011.

The review’s Final Report and now the RIS considered adding to the ACL an EU-style “general safety provision”. European countries (such as the UK in 1987, then the EU from 1992), as well as Hong Kong, Macau, Malaysia (1999), Canada (2010) and Singapore (2011, partially), have introduced such a GSP. It was discussed in several earlier government inquiries, notably by the Productivity Commission in 2006 and 2008, but the Commission concluded that the ACL should try some other measures first. A GSP would require manufacturers and importers to ensure that they only supply safe consumer products, otherwise risk public law sanctions from regulators.

Choice found that many Australians wrongly assume we already have this requirement. Yet the ACL currently only allows mandatory safety standards to be set pro-actively for specific types of general consumer products (currently around 40, many involving higher-risk children’s products). These specific standards take a long time to develop, usually only after serious injuries or deaths particularly within Australia. A recent example is renewed efforts to introduce a mandatory standard around button batteries, after a third child died in July and the AFL withdrew thousands of bracelets in October 2020. Regulators can also issue bans (around 20) for products found unsafe, but this is an even more reactive response.

Also only after harm arises, manufacturers can be indirectly incentivised to supply safe products by harmed consumers potentially bringing strict liability compensation claims. But such ACL product liability claims, requiring individuals to prove a “safety defect”, are becoming proportionately fewer. Even large class action law firms prefer focusing resources on more straightforward and large-scale claims by shareholders against listed companies for misleading conduct.

The Treasury’s draft RIS invited public comment on various reform options and three perceived problems with Australia’s consumer product safety system. One problem was misunderstanding about the current ACL regime. A second was its largely reactive nature, impacting on regulatory interventions and supplier behaviour. A third was considerable harm from unsafe consumer products. The ACCC identified 780 deaths and 52000 injuries annually. It also estimated at least a $4.5 billion annual economic cost, assuming around a $200,000 “value of a statistical life year” for premature deaths and disability. There were also costs of $0.5 billion in direct hospital costs for governments, and further costs associated with minor injuries and consequential property loss. (These seem conservative estimates, especially as the US consumer safety regulator recently US$1 trillion costs annually for that country – although the methodology and assumptions for that estimate are not set out in the UNCTAD report.)

My own Submission and a related peer-reviewed article added comparative empirical data in support of a GSP. First, the OECD Global Recalls portal shows that Australia reported higher per capita voluntary recalls over 2017-9 than Korea, the UK, Japan and the USA. Australia reported a rate similar to Canada, at least on the OECD data, but Canada’s legislation has a more expansive duty on suppliers to report product accidents to regulators compared to that added to the ACL. A large proportion of our recalls involve child products, mostly from China.

[Table 1: Comparing Australia’s Recalls (2017-9)]

Secondly, annual recalls have been growing in Australia, as pointed out by Dr Catherine Niven et al (co-researchers for our ARC-funded project comparing child product safety) and various submissions by Choice. The uptick is noticeable from around 2012, tracking burgeoning e-commerce and more importers dealing with more manufacturers abroad. We can anticipate more more consumer product safety problems due to further online sales during the pandemic, and the ACCC issued warnings in April 2020. So far this year, though, annual recalls are down, according to the around 240 by end-October (excluding automobile recalls), compared to around 400 over all of 2019. This drop is likely to be temporary and caused by: (a) pandemic-related recession causing less consumer spending, (b) less time and energy for consumers to complain about unsafe products, (c) businesses struggling with finances and staff so not checking products and conducting or reporting recalls as much, and (d) less regulatory capacity to sweep bricks-and-mortar shops for unsafe products or monitor online platforms (except perhaps the larger ones).

[Figure 1: Australia’s Recalls (1998-2019)]

Perhaps for similar reasons, the Canadian government website shows a drop in recalls reported there this year too: about 130 by end-October compared to 251 over 2019. That website also curiously records fewer recalls annually for “consumer products” (excluding vehicles, foods and healthcare products) than reported on the OECD portal, suggesting Canada’s recall rate per capita may instead be significantly lower than Australia’s. Importantly, it shows a significant drop in annual recalls from 2009 (306) and 2010 (299) to 2011 (258) and 2012 (236), followed by annual recalls averaging around 250 consistently from 2013-2019. The GSP introduced by the Canada Product Safety Act 2010 therefore seems to have had a positive impact, shifting supplier mindsets towards adopting a more pro-active approach including better safety assessments before putting goods onto the market. Singapore also reported a drop in unsafe children’s products found there the year after it introduced a form of GSP through 2011 Regulations.

In further contrast to Australia, the USA reported significantly fewer recalls following the introduction of third-party conformity assessment for toy exporters after problems emerged particularly with China-sourced products around 2008. Dr Niven et al further note that Australian recall notices do not need to include some significant information, eg regarding (even de-identified) injuries. Many Australian recalls of child products also involve breaches of the mandatory standards that have actually been set. (For more details, see her PhD thesis now available here.)

Our regulators could try to sanction local suppliers more for such breaches. But introducing a broader GSP would encourage a “paradigm shift” needed among Australian firms. As discussed in my article, this ACL reform could complemented (but not replaced) by some of the other RIS options, and/or a “product safety substantiation notice” power (mirroring ACL s219, allowing regulators to require suppliers to substantiate claims or misrepresentations that might be misleading).

Introducing a GSP would make Australian suppliers think more carefully about (and document) safety assessments before putting consumer products on the market. This is more efficient and safer than releasing products and then trying to recall them after problems start to be reported, hoping not too many (more) consumers get harmed. It would also encourage Australian firms to “trade up”, like counterparts overseas, to the standards expected in many of our trading partners.

[Luke Nottage receives funding from the Australian Research Council: DP170103136, “Evaluating consumer product regulatory responses to improve child safety”. He provides occasional pro bono advice to Choice regarding consumer law and policy reform, and acknowledges assistance from them in compiling from government recalls data what is reproduced here as Figure 1.]

Comparing Consumer Product Safety Law for New Markets and Technologies

In the context of changes in the consumer marketplace and regulatory frameworks locally and internationally, the Australian government is re-initiating public consultations about introducing an EU-style “General Safety Provision”. Although this requirement for suppliers pro-actively assess risks and put or keep only safe products products has also been introduced beyond Europe in Hong Kong, Macau, Malaysia and (partly) Singapore, it has also not yet been introduced in Japan. However, Japan may have a better regulatory framework in other respects (eg mandatory accident reporting requirements on suppliers that extend to some “near misses”, along with public disclosure of such reports) and better enforcement (eg of mandatory safety standards for specific products).

Japanese courts also continue to generate more case law applying EU-style strict product liability, introduced by a 1994 Act, compared to an analogue introduced in 1992 in Australia (and increasingly in other parts of Asia, including many ASEAN states). This helps promote and clarify more indirect incentives on suppliers to source and provide safe products. However, such impact for product liability litigation is still constrained by issues such as effective access to justice / courts. This is evident from a recent book examining major EU and some other countries, reviewed below for the Journal of European Tort Law: Piotr Machnikowski (ed) European Product Liability: An Analysis of the State of the Art in the Era of New Technologies (Intersentia, Cambridge, 2016, ISBN 978-1-78068-398-0, ix+705pp):

This is a very useful reference book especially for academic researchers and legal practitioners, but also policy-makers or law reformers, as it compares product liability law and practice across 12 countries in Europe as well as five other countries. A key question is whether the 1985 product liability (PL) Directive (85/374/EEC), compensating consumers for physical harm as well as certain consequential property losses caused by product safety defects, remains “fit for purpose” – especially given the proliferation of new technologies.

The Introduction by Machnikowski succinctly outlines those as including: mobile internet (smartphones, tablets etc), the automation of knowledge work, the “internet of things” (such as connected home appliances), cloud technology, advanced robotics, autonomous vehicles, next-generation genomics and regenerative medicine, advanced materials (eg through nanotechnology), energy storage, advanced oil and gas exploration and recovery, renewable energy sources, and 3D printing (pp3-8). He explains how these technologies require us to reconceptualise the role of substantive private law, as they often have global reach and prompt calls for public regulation. The new technologies also strain the capacity of the legal system to respond quickly and effectively. They often implicate intellectual property and services rather htan movable or tangible products, and networks of suppliers rather than just manufacturers and some specified intermediaries, as primarily envisaged by the PL Directive. The new technologies raise questions about its focus on product defects linked to physical safety (rather than infringements of privacy or non-economic rights and interests), the exemption from liability usually provided for “development risks” (the no-one-could-have-known defence), attributing causation, and the scope of (potentially catastrophic) damages claimable. The book therefore aims to analyse how conventional PL law is or could be addressing such questions, as well as how PL law interacts with other areas of tort law and public regulation (pp 8-13).

The volume compares the law of European Union member states selected from both the “Old” and “New” Europe (Austria**, the Czech Republic, Denmark*, England*, France**, Germany**, Italy*, the Netherlands*, Norway*, Poland and Spain) and the European Economic Area (Norway) as well as Switzerland. It therefore reviews legal systems in the “Roman, German, common law and Nordic traditions”, along with “two important common law traditions from outside Europe (USA** and Canada*) as well as two mixed jurisdictions (Israel* and South Africa” (pp 13-14). The back cover blurb adds that this hefty book “is the result of an extensive international research project funded by the Polish National Science Centre. It brings together experienced scholars associated with the European Group on Tort law (EGTL) and the European Research Group on Existing EC Private Law (Acquis Group) … The country reports show that the practical significance of product liability differs widely in the various Member States”.

The preceding paragraph above tries to give a sense of this variable significance of PL law by indicating with an asterix (*) or double asterix (**) those countries where there is respectively extensive or very extensive litigation and case law; those without any asterix are countries where lawsuits reportedly remain rare. This rough appraisal is derived mainly from each country report’s concluding Part X (Assessment of Domestic Law), except for the chapter on Spain (lacking Part X), as well as each chapter’s respective Part IX (Alternative Regulations and Remedies) and Part VIII (Procedural and Evidential Issues). The comparison reinforces the well-established general proposition that it is factors beyond reforms to substantive PL law, even the shift from negligence-based to strict liability under the 1985 Directive model (inspired by some earlier US case law), which primarily generate lawsuits and therefore case law that might offer more guidance on what constitutes appropriate safety for consumer products.[1]

The country reports identify (sometimes overlapping) factors arguably impacting on whether or not PL law is extensively litigated:

  • effectively enforced public regulation preventing harmful products coming on the market (also in Norway, per Askeland, p 375), and strong social welfare or insurance schemes (eg in Denmark, per Holle and Mogelvang-Hansen, pp 171-2);
  • expenses in accessing evidence, and lawyers open to contingency fees, compared to non-legal dispute resolution avenues (in England, per Oliphant and Wilcox, p 203);
  • linking of civil with criminal proceedings to ease plaintiffs’ evidentiary burden (in France, per Borghetti, p235);[2]
  • scope of claimable damages (with lawsuits under PL Directive implementing legislation only really since a 2002 amendment allowing claims also for pain and suffering in Germany, per Magnus, p 272);
  • reversed burden of proof under still more familiar Civil Code negligence provisions in Italy, per Comande, pp 307-8);
  • quite predictable law (facilitating settlements), business reputation, products (like mobile phones) bundled with services facilitating claims against direct suppliers rather than manufacturers (in the Netherlands, per Keirse – but noting that general tort law has also become stricter: pp 355-6);
  • unpredictability in civil processes and litigation outcomes due to limited legal aid, variability in lawyers’ fees, high litigation costs, the “loser pays principle”, complex and lengthy procedures, problems with experts and judicial methodologies, and unclear standard of proof (p 404, per Baginska);
  • “almost impenetrable” commentary with very limited case law (in Switzerland, per Winiger, pp 477-8);
  • potential claims versus regulators and perhaps related compensation schemes, as well as class actions (in Canada, per Arbour, pp 513-9);
  • no-fault liability schemes precluding personal injury claims for defects in automobiles, and comparative ease of suing actors (eg doctors or employers) than manufacturers of potentially unsafe products (in Israel, per Gilead, p 544).

Each country report also succinctly sets out Parts dealing with “Sources of Law”, “Basic Elements of Liability”, “The Person Liable for Damage”, “The Aggrieved Person and Damage”, “Causality”, “Defences and Exclusions”, and “Remedies”. This structure facilitates easy comparisons on points of interest (eg on the extent to which an intermediate supplier might have contributed sufficiently to be deemed a joint “manufacturer”[3]), although it would have been helpful for the book to add an Index.

Especially for the (many) countries where case law is sparse, the country reporters do not delve into great detail about the potential applicability of especially Directive-based PL law to the various new technologies (but see Austria, per Koch, p 147). However, in his Conclusions, Machinowki nonetheless includes a very interesting analysis that can be seen as challenging the “Adequacy of the European Product Liability Regime for Threats Posed by New Technologies”, focusing on what should now constitute a “product”, “defect”, “development risks”, the “entity liable for composite products”, and appropriate “time limits”, as well as generally the “possible development paths for product liability law” (pp 691-705). Readers familiar with PL law could perhaps begin the book here, at the end. For particular points of interest, they can cross-reference to the detailed and authoritative commentary on the “Product Liability Directive” itself (pp 17-108) co-authored by Fairgrieve, Howells, Machinowski and five others. That will also be essential background reading for those less familiar with PL law. Academics and policy-makers, rather than practitioners, may also find some related insights in the penultimate chapter by Faure, setting out a rather general “Economic Analysis of Product Liability” (pp 619-65).


Overall, this is a very well conceived and executed comparative reference book that can be highly recommended, especially for those interested in PL law in the context of proliferating new technologies. A second edition or companion volume might usefully extend the analysis to other European countries as well as those, especially in the Asian region, that have increasingly adopted the PL Directive approach – often with more pro-plaintiff innovations.[4] However, other than Japan and Australia to some extent, these Asian countries have so far even less case law and related commentary that may help guide them as well in addressing emergent consumer product safety issues.

[1] Matthias Reimann, “Liability for Defective Products at the Beginning of the Twenty-First Century: Emergence of a Worldwide Standards?”, 51 American Journal of Comparative Law, 751-38 (2003). For a recent illustration, showing almost no lawsuits filed in five Southeast Asian countries that have adopted Directive-style PL legislation, except in Thailand thanks to contemporaneous  legislation facilitating consumer claims through regular courts, see Luke Nottage and Sakda Thanitcul, “Economic Integration and Consumer Protection in Southeast Asia: ASEAN Product Liability Law and Safety Regulation” in ibid (eds) ASEAN Product Liability and Consumer Product Safety Law (Winyuchon, Bangkok, 2016), available via https://ssrn.com/abstract=2703130.

[2] On the synergies between civil and criminal proceedings in medical malpractice and (especially mass tort) PL claims in Japan, see also respectively Robert Leflar, “Medical Error as Reportable Event, as Tort, as Crime: A Transpacific Comparison” 22 Journal of Japanese Law 39-76 (2005) available at https://www.zjapanr.de/index.php/zjapanr/article/view/478/503; and Luke Nottage, Product Safety and Liability Law in Japan (Routledge, 2004) especially ch3.

[3] See a class action settlement regarding imported soy milk, approved by the Victorian Supreme Court, which might have had otherwise to rule on this point under either Australian or Japanese law (both incorporating variants of the PL Directive since the early 1990s): Erin Downie v Spiral Foods Pty Ltd and Others [2015] VSC 190, available at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/190.html.

[4] See also Luke Nottage, Justin Malbon, Jeannie Paterson and Caron Beaton-Wells, ASEAN Consumer Law Harmonisation and Cooperation (Cambridge University Press, Singapore, 2020) especially ch3; Geraint Howells, Hans Micklitz et al (eds) Consumer Law in Asia (Cambridge University Press, forthcoming 2021).

Guest blog: review of “ASEAN product safety law”

Written by: Prof Sothi Rachagan (Vice-Chancellor, Nilal University, Malaysia)
[Prof Rachagan, doyen of consumer law and policy studies in Southeast Asia, has kindly provided the following review of my conference volume co-edited with Chula Uni Prof Sakda Thanitcul, published by Winyuchon (Bangkok) in 2016 in English plus Thai translation, with a version of the introductory chapter available here.]

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Reforming Product Safety Law: Good and Bad News from the Australian Consumer Law Review

Written by: Luke Nottage and Catherine Niven
In 2008, as consumer confidence in Australia took a big hit from the Global Financial Crisis, the Productivity Commission published a report advising the federal Treasurer to lead a belated “re-harmonisation” of consumer protection law. The State and Territory governments agreed to enact substantive provisions mirroring those legislated by the federal Government, thus creating a uniform “Australian Consumer Law” (ACL) in force nation-wide from 2011.
This reform project was mainly “sold” as saving transaction costs for businesses domestically, but also in their dealings with overseas markets that have also been “trading up” to higher standards of consumer protection law (including now ASEAN). As such, for example, all Australian jurisdictions introduced general provisions voiding unfair contract terms along the model adopted by the European Union (EU) in 1993, following the lead of Victoria in 2003. More directly impacting on consumer product safety, the ACL added a novel reporting requirement that suppliers notify the Australian Competition and Consumer Commission (ACCC) about serious product-related accidents, introduced already in 2001 by the EU – albeit in more expansive form.
In addition, the Australian governments also agreed to review the operation of the ACL after five years. In March 2017, with little fanfare, officials in “Consumer Affairs Australia and New Zealand” (CAANZ) released a Final Report including recommendations for ACL reform. They include mixed blessings for enhancing consumer safety law.

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Book Review – Celeste Arrington “Accidental Activists: Victim Movements and Government Accountability in Japan and South Korea” (Cornell University Press, 2016)

This extensively researched and succinctly written book effectively compares the processes and outcomes of several major movements for victims’ redress from governments in Japan and Korea. The focus is on campaigns that developed especially from the 1990s, an era of perceived “judicialization of politics, enabled by democratization in Korea in 1987 and more competitive electoral politics in Japan since 1993” (p. 203), when victims sought redress for poor decisions regarding Hansen’s disease (leprosy, as discussed in ch. 3), blood tainted with Hepatitis C (ch. 4) and abductions by North Korean authorities (ch. 5).
Arrington examines not just the respective victims’ contestations with the state, but also the nature and timing of their interactions with key mediating institutions (ch. 2): the legal profession (to pursue litigation), the media (providing publicity for their causes), and activist groups (for lobbying). In particular, she emphases how too much early engagement with politicians – even “elite allies” – aimed at achieving legislative or bureaucratic intervention, as occurs more in Korea’s more open-textured democratic process, may lead perversely to poorer redress outcomes as the issue becomes more polarised politically.

Continue reading “Book Review – Celeste Arrington “Accidental Activists: Victim Movements and Government Accountability in Japan and South Korea” (Cornell University Press, 2016)”

Symposium: Consumer and Contract Law Reform in Asia

Private law and regulatory frameworks impacting on consumer protection are being reformed in many parts of Asia, the world economy’s fastest-growing region. This development is important for Australian exporters and outbound investors, as well as policy-makers engaged over 2016 in a five-yearly review of the Australian Consumer Law. [My Submission to that inquiry is here – Download file]
This symposium on 10 August 2016, hosted by the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS) with support from the Australian Network for Japanese Law (ANJeL), brings together experts from around the Asian region to outline and compare reform initiatives achieved or underway in consumer law as well as contract law more generally. [On 12 August at UNSW, ANJeL is also supporting a symposium on “Democracy, Pacificism & Constitutional Change: Amending Article 9?”: the draft program is here – Download file.]

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New Year and New Books on Asian Law – Consumer Law and Corporate Governance

Happy New Year of the Monkey! I am also pleased to report that two new books will be forthcoming.
One is co-edited by Chulalongkorn University Law Faculty (and immediate past Dean) Prof Sakda Thanitcul, who like me studied for an LLD at Kyoto University (but, unlike myself, persevered and obtained the degree there, as well as another PhD from the University of Washington). Entitled “ASEAN Product Liability and Consumer Product Safety Law”, this volume adds the editors’ introduction plus two other general chapters to ten country reports presented and discussed at a major international conference held late July 2015 in Bangkok, funded by Chulalongkorn University’s ASEAN Studies Centre and hosted at Thailand’s Ministry of Commerce facilities. Thanks also to publication support from the Centre as well as the Sydney Southeast Asian Centre (SSEAC), complimentary copies of the English version will be distributed to delegates at the 2nd ASEAN Consumer Protection conference, also being held in Bangkok over 14-15 December (see here for my co-authored volume of Policy Digests & Case Studies for that conference, and Volume 1 tabled at the 1st conference in Hanoi a year earlier). In addition, the book will be translated and published in Thai in early 2016, through Thailand’s leading legal publisher (Winyuchon), to reach a broader audience at reasonable cost. With priority to national and international regulators and NGOs, other complimentary copies of the English version are available on request, to assist in the important and ongoing task of harmonising and strengthening consumer law and enforcement, amidst major trade and investment liberalisation initiatives underway in the region – including now the Trans-Pacific Partnership FTA. The editors’ introductory chapter is also freely downloadable via SSRN.com, and Prof Sakda will be visiting the University of Sydney in late July 2016 thanks to further support from SSEAC. Bios for all contributors to this book are listed below.*
Southeast Asia has long been known as a particularly dynamic part of the global economy. In 2007 the leaders of the ten member states of the Association of Southeast Asian Nations further agreed to accelerate the project to complete a single market or “ASEAN Economic Community” by the end of 2015. Less well known is that their blueprint also committed to improve and harmonise consumer law, to prevent a “regulatory race to the bottom”. A new Committee has encouraged member states to enact strict product liability regimes (as in Australia, Japan and the EU) aimed at making it easier for consumers (and sometimes even businesses) to be compensated for harms suffered from unsafe products. ASEAN states have also introduced new or revised laws allowing regulators to set mandatory safety standards before products are put into circulation, and to enforce post-market controls such as bans and recalls of unsafe products.
The second new book is on “Independent Directors in Asia”, co-edited for Cambridge University Press with ANJeL stalwarts Profs Harald Baum (MPI Hamburg), Souichirou Kozuka (Gakushuin, Tokyo) and Dan Puchniak (NUS). As previously mentioned on this Blog, contributions have been extensively workshopped at major conferences in Berlin and then Singapore, as well as by individual authors in other forums. A longer version of the chapter comparing Australia, which I co-authored with Fady Aoun, is also forthcoming in early 2016 from the University of Miami International and Comparative Law Review. Core aspects of corporate governance in Asia provides essential backdrop to firms’ dealings with consumers as well as their cross-border engagement facilitated nowadays through FTAs.
* LIST OF CONTRIBUTORS to the ASEAN Product Liability and Consumer Product Safety book:
RIZA BUDITOMO
Riza Buditomo is an Associate Partner in the Corporate & Securities practice group of Hadiputranto, Hadinoto and Partners (member firm of Baker & McKenzie). He graduated from the University of Indonesia with a B.A. Law in 2004, and Accounting Diploma in 2002. With an educational background in accounting and tax as well as law, Riza focuses on corporate/commercial, trade and tax work. This includes consumer protection, export/import, food industry, and anti-dumping issues. He has also been involved in several due diligence projects for acquisitions and mergers, drafting legal due diligence reports, providing various types of legal advice and assisting major clients in a number of high profile transactions. Riza is admitted in Indonesian Courts including the Tax Court. Riza is also a certified customs consultant.
RUMONDANG SARI DEWI
Rumondang Sari Dewi is an Associate in the Corporate & Securities practice group of Hadiputranto, Hadinoto and Partners. She graduated from the University of Padjadjaran with a B.A. Law in 2009. She has been involved in assisting and advising clients in various corporate and trade matters. She also has experience assisting clients in dealing with government authorities on licenses and approvals.
SORNPHETH DOUANGDY
Sornpheth Douangdy is Associate Director in charge of both legal and tax services at PricewaterhouseCoopers (Lao) Company Limited. Prior to working at PricewaterhouseCoopers, he was the Deputy Head of the Law Research Division in the Law research and International Cooperation Institute and the Ministry of Justice in Lao; Deputy Head of the Law Research Division in the Law Research Centre at the Ministry of Justice; a member of the Civil Law Working Group to prepare the Civil law Textbook and to amend Contract Law, Tort Law, and Law on Economic Arbitration Organisation; a lecturer in Intellectual Property Law at the Law Colleges; the co-ordinator of Ministry of Justice to the UNODC; a member of the secretariat team to implement the UN Convention against Corruption; and a judge of Saysettha Court, Vientiane. Sornpheth holds a bachelor degree from the Faculty of Law and Political Science at the National University of Laos, and a post-graduate Business Law and Commercial Law degree from Curtin University of Technology, Australia.
GERAINT HOWELLS
Geraint Howells is Chair Professor of Commercial Law and Dean of the Law School at City University of Hong Kong; barrister at Gough Square Chambers, London (though not currently practising) and former President of the International Association of Consumer Law. He previously held chairs at Sheffield, Lancaster and Manchester and has been head of law schools at Lancaster and Manchester. His books include Comparative Product Liability, Consumer Product Safety, Consumer Protection Law, EC Consumer Law, Product Liability, European Fair Trading Law, Handbook of Research on International Consumer Law and The Tobacco Challenge. He has undertaken extensive consultancy work for the EU and UK government as well as for NGOs.
JOCELYN KELLAM
Dr Jocelyn Kellam has a particular interest in product liability in the Asia Pacific. Previously a partner with one of Australia’s national law firms and an Adjunct Professor of Law at the University of Sydney she holds a PhD (USydney) and LLM (Tuebingen) in comparative product liability law. Jocelyn is the general editor of a comparative text, Product Liability in the Asia Pacific (Federation Press, 3rd ed 2009), and the former general editor of the Australian Product Liability Reporter.
KHIN MAR YEE
Khin Mar Yee (LLB, LLM, PhD) is Professor and Head of the Department of Law, University of Yangon. Her teaching and research interests include international trade law, intellectual property law and the Law of the Sea.
JOHN KING
John E King is a partner in Tilleke & Gibbins, heading the firm’s Cambodia practice in Phnom Penh. He is supported by a strong team of local Khmer advisors and the international expertise of the firm’s offices across Southeast Asia to provide advice that is tailored to the franchising, life sciences, and technology sectors. John previously led the firm’s Dispute Resolution Department for several years, and he played a central role in building Tilleke & Gibbins’ Hanoi and Ho Chi Minh City offices, where he served as managing director from 2007 to 2010.
John is a US-licensed attorney, and a founding member of the Thailand branch of the Chartered Institute of Arbitrators. He earned his Juris Doctor (JD) with high distinction (magna cum laude and Order of the Coif) from the University of Minnesota, and he practiced banking and finance law at Leonard, Street & Deinard, a leading U.S. law firm, prior to joining Tilleke & Gibbins.
DYAN DANIKA LIM
Dyan Danika Lim (BS, JD) specialises in energy, gas, oil, telecommunications & public utilities litigation and alternative dispute resolution with a particular interest in domestic and international arbitration and cross border litigation. She also handles product liability cases. She is currently an Associate Solicitor at the Office of the Solicitor General of the Philippines and a Professor at the De La Salle University, College of Law. Prior to joining the government, she worked as a Senior Associate at the Litigation and Dispute Resolution department of the Angara Abello Concepcion Regala & Cruz Law Offices. She is a member of the UP Women Lawyer’s Circle and the Young International Arbitration Group.
LIM CHEE WEE
Chee Wee graduated from the University of New South Wales in Australia with LLB and BComm (Accounting) degrees. He was called to the Malaysian Bar as an Advocate and Solicitor in the High Court of Malaya in 1993 and started practising in SKRINE, where he became a partner in 2001. Chee Wee is the immediate past president of the Malaysian Bar.
Chee Wee has a broad commercial practice. He also has an established public and administrative law practice, having regularly advised and acted as Counsel for the Malaysian stock exchange and another regulator. His other areas of practice encompass banking, construction and engineering, land law, reinsurance, trusts and partnership disputes. He is listed in various international legal directories as a leading individual for dispute resolution.
LY TAYSENG
Managing Director of HBS Law, Attorney-at-law and Member of the Council of Jurists of the Council of Ministers of the Royal Government of Cambodia
NG HUI MIN
Ng Hui Min is a partner in Rodyk & Davidson LLP’s Litigation & Arbitration Practice Group. Hui Min graduated from National University of Singapore in 2006 and was admitted to the Singapore Bar as an Advocate & Solicitor in Singapore in May 2007. Hui Min is effectively bilingual in English and Chinese, and her main areas of practice encompass commercial litigation, corporate and investment disputes litigation, insolvency cases and employment disputes. She represents and advises companies and individuals on a wide array of commercial issues including commodities disputes, international sale of goods, directors’ duties, and shareholders’ disputes.
In her practice, Hui Min has represented companies on contractual disputes in the oil and gas industry as well as in the commodities industry where she has dealt with issues ranging from breach of warranty to claims under guarantees. Hui Min has also acted for companies in international arbitrations with respect to claims associated with international trade including commodities disputes. Hui Min has also acted for a variety of clients in employment matters, and possesses particular expertise in the area of confidentiality and restrictive covenants. In her insolvency practice, Hui Min has advised and acted for shareholders of companies where she has dealt with issues which include directors’ breach of fiduciary duties and deadlock between directors leading to a winding up of companies.
LUKE NOTTAGE
Dr Luke Nottage specialises in contract law, consumer product safety law, corporate governance and international arbitration, with a particular interest in the Asia-Pacific region. He is Professor of Comparative and Transnational Business Law at Sydney Law School, founding Co-Director of the Australian Network for Japanese Law (sydney.edu.au/law/anjel), and Associate Director of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS). Luke’s 11 books include International Arbitration in Australia (Federation Press, 2010), and Foreign Investment and Dispute Resolution Law and Practice in Asia (Routledge, 2011). He is an ACICA Special Associate and founding member of the Rules drafting committee, the Australasian Forum for International Arbitration council’s Japan Representative, and on the panel of arbitrators for the BAC, JCAA, KCAB and KLRCA. Luke has also consulted for law firms world-wide, ASEAN, the EC, OECD, UNCTAD, UNDP and the Japanese government, and is Managing Director of Japanese Law Links Pty Ltd (www.japaneselawlinks.com).
COLIN ONG
Dr Colin Ong is a practising member of the Brunei, English and Singapore Bars. He has acted as arbitrator or as counsel in many commercial and investment arbitrations under most major rules of arbitration governed under Civil and Common Law. He is a Chartered Arbitrator and a Master of the Bench of the Inner Temple. He is or has been a Visiting Professor at various universities, including the University of Hong Kong; Universitas Indonesia; King’s College (University of London); University of Malaya; Universiti Kebangsaan Malaysia; Universitas Indonesia; Queen Mary (University of London); Padjadjaran University (Indonesia); and National University of Singapore. He is the author of several arbitration and law books and is an editorial board member of various legal journals including Arbitration (CIArb); Business Law International; Butterworths Journal of International Banking & Financial Law; Dispute Resolution International; and Maritime Risk International.
He currently holds various positions including President, Arbitration Association Brunei Darussalam; Advisory Board, BANI (Indonesia); Board, Cambodia National Commercial Arbitration Centre; Advisor to China-ASEAN Legal Research Center; ICC Commission on Arbitration; and ICCA-Queen Mary Task Force (Costs and Security for Costs). He was a Former Principal Legal Consultant, ASEAN Centre for Energy; Panel Member (Brunei Darussalam nominee) of the ASEAN Protocol on Enhanced Dispute Settlement Mechanism; and Former Vice President of the LCIA (Asia-Pacific Users’ Committee).
PATRICIA-ANN T PRODIGALIDAD
Patricia-Ann T Prodigalidad (BS, LLB, LLM) is a Partner of the Litigation and Dispute Resolution Department of Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). Ms Prodigalidad specializes primarily in commercial litigation (intra-corporate disputes; banking, investments and securities litigation; corporate rehabilitation and insolvency) and criminal matters relating to corporate activity (including white collar and other business-related crimes; anti-money laundering; anti-corruption and other FCPA issues), with particular focus on cross-border issues. She likewise practices extensively in the fields of international commercial and construction arbitration as well as product liability and antitrust litigation. Ms Prodigalidad also acts as an arbitrator in international commercial and domestic arbitration, both institutional and ad hoc. In 2013, Ms Prodigalidad passed the Fédéracion Internationale Des Ingénieurs-Conseils [FIDIC] Dispute Board Adjudicator Assessment Workshop sponsored by FIDIC and the Japanese International Cooperation Agency and was one of four (4) Philippine delegates accredited as a dispute board adjudicator. Leveraging on her science degree, Ms. Prodigalidad has successfully handled environmental law cases.
Ms Prodigalidad, a prolific author, obtained her Bachelor of Laws degree from the University of the Philippines, cum laude, graduating class salutatorian. She then topped (ranked 1st in) the 1996 Philippine Bar Examinations. In 2004, she obtained her master’s degree in law from the Harvard Law School. Ms. Prodigalidad is a member of various professional domestic and international organizations and serves as trustee of the Philippine Dispute Resolution Center, Inc, the UP Women Lawyers’ Circle and Harvard Law School Alumni Association. She is currently the National Secretary of the Integrated Bar of the Philippines, the countrywide organization of all lawyers in the Philippines.
LAWRENCE TEH
Lawrence Teh is a partner in Rodyk & Davidson LLP’s Litigation & Arbitration Practice Group. Lawrence advises clients and acts as an advocate in all areas of commercial law and appears regularly as leading counsel in the Singapore Courts, in arbitration and in other forms of dispute resolution. He is also appointed regularly as an arbitrator in international disputes. He has particular experience in international trade and commodities, maritime and aviation, banking and financial services, onshore and offshore construction, mergers acquisitions joint ventures and other investments, and insurance in related fields.
Lawrence is currently the Chairman of the Alternative Dispute Resolution (ADR) Committee at The Law Society of Singapore. He is a Fellow of the Chartered Institute of Arbitrators, a Fellow of the Singapore Institute of Arbitrators, and a panel arbitrator at the Singapore International Arbitration Centre. He chaired the committee that drafted the Law Society Arbitration Rules and is a panel arbitrator of the Law Society Arbitration Scheme. Recently, he was appointed the Administrator of the Comite Maritime International (CMI) in 2013, and Chairman of the Promotion Committee of the Singapore Chamber of Maritime Arbitration (SCMA). He is also a Council Member of the Legal Practice Division in the International Bar Association (IBA). He is named in numerous legal guides and directories including the Asia Pacific Legal 500, International Who’s Who for Commercial Litigation, International Who’s Who of Shipping & Maritime, Asialaw Leading Lawyers for Shipping, Maritime & Aviation and on the Guide to the World’s Leading Aviation Lawyers.
SAKDA THANITCUL
Dr Sakda Thanitcul is Professor of Law at the Faculty of Law, Chulalongkorn University, in Bangkok. He earned his LLB from Chulalongkorn University, LLM and PhD (Law) from University of Washington School of Law and also LLM and LLD from Kyoto University. He was a member of the advisory team to the chief negotiators of the US-Thailand FTA and the Japan-Thailand Economic Partnership Agreement. His recent publications include “Thailand
(co-author with R. Ian McEwin) in Mark Williams (ed), The Political Economy of Competition Law in Asia (Hart Publishing, 2011), pp 279-291, “Thailand” (co-author with R Ian McEwin) in Mark Williams (ed.), The Political Economy of Competition Law in Asia (Edward Elgar, 2013), pp 251-282, “Compulsory licensing of chronic disease pharmaceuticals in Thailand” (co-author with Matthew L Braslow), (2014) 37(3) Thai Journal of Pharmaceutical Sciences 106-120.
TU NGOC TRINH
Tu Ngoc Trinh is a licensed attorney in Vietnam and a member of the Tilleke & Gibbins corporate & commercial team in the firm’s Hanoi office. Her practice focuses on the life sciences sector as well as general corporate matters including company formation, employment, franchise activities, commercial transactions, and mergers and acquisitions. Tu is committed to helping her clients achieve sustainable success in Vietnam. She is a member of the Hanoi Bar Association and the Vietnam Bar Federation.

Free Trade (Agreements) Enhancing Consumer Protection in Southeast Asia

[A version of this posting appears on the East Asia Forum blog.]
Those opposed nowadays to greater economic integration through the WTO or free trade agreements typically assume that this will undermine consumer protection, especially due to more unsafe goods coming into local markets. But as David Vogel documented in the mid-1990s for the US, we often find “trading up” to higher safety standards. Partly this is because exporters may need to improve safety features to comply with requirements set by public or private law in the destination country. It is then often inefficient to remove such features for products also sold into local markets, where requirements may initially be lower, or if features are removed consumers and regulators in local markets will more readily press for local safety standards to be raised.
FTAs and other international agreements can also facilitate enactment of better consumer product safety laws. The EU was an early example. In 1979, the Treaty of Rome was interpreted to require “mutual recognition”: goods produced to safety standards required in one EU country would be deemed to satisfy standards in an importing country. But to avoid a “regulatory race to the bottom”, the EU also developed a new and more effective approach to setting joint minimum safety standards.
Intriguingly, Southeast Asia is experiencing similar developments. …

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