Best Practices in Consumer Protection -

Global ScenarioAsia pacific region

Vol. II

Sponsored by

Department of Consumer Affairs,

Ministry of Consumer Affairs,

Food and Public Distribution

Government of India

Centre for Consumer StudiesIndian Institute of Public Administration

New Delhi- 110002

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Best Practices in Consumer Protection - Global Scenario

(Asia Pacific Region)

Vol. II

Compiled and Edited by

Suresh Misra Professor, IIPA

Mamta Pathania Assistant Professor, IIPA

Amit Kumar Singh Research Officer, IIPA

Prepared by

Centre for Consumer Studies Indian Institute of Public Administration

New Delhi- 110002

Sponsored by

Department of Consumer Affairs, Ministry of Consumer Affairs

Food and Public Distribution, GOI

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Compiled by: Centre for Consumer Studies/ Indian Institute of Public Administration, New Delhi, 11002 Sponsored by: The Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Public Distribution, Government of India You can copy, download or print this material for own use, and you can include excerpts from this publication, database and multimedia products in your own documents, presentations, blogs websites and teaching materials, provided that suitable acknowledgement of Centre for Consumer Studies/Indian Institute of Public Administration as source is given. All requests for public or commercial use and translation rights should be submitted to ccs.iipa@gmail.com

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Preface

Consumer Protection legislation is an integral part of a consumer protection framework in any country. This framework encompasses various issues which are infact correlated to each other. Out of the several factors affecting the framework’s efficiency, the most important are; information, education and awareness related to the field of Consumer Protection. Education is a factor which improves one’s ability to use that information in a constructive way. Although studies have been made with regard to consumer protection framework of different countries, yet there seems to be a need for a compilation, which brings the system and structure of different countries under one umbrella. This will help in better appreciation of the existing mechanism and to learn from them.

This volume brings out the Consumer Protection laws in the Asia- Pacific region. The volume I in the series was a compilation of some select countries – Belgium, China, European Union, Israel, Japan, Mexico, Singapore, Srilanka, South Korea and Thailand. This document is thus a cross cultural study aimed at framing and moulding the structure of Consumer Protection in an effective manner. It is an ongoing project covering select countries in each volume. Anything which concerns the society at large needs to be protected and keeping this in mind this compilation is an effort to document the Global Consumer Protection Scenario. It is quite evident that to strengthen the consumer movement, there is a need to learn from the experiences of the other countries. Each country has some uniqueness in its system and approach to consumer protection, which can be analysed and protection be incorporated. No system is perfect, therefore a compilation of this nature gives an opportunity to assess and benchmark the good practices.

We are grateful to the Department of Consumer Affairs, Government of India, particularly to Shri. Yashwant Bhave, Secretary, Consumer Affairs, Shri Rakesh Kacker, Add. Secretary , Shri. Sanjay Singh, Joint Secretary and Shri. G.N. Sreekumaran, Director (CWF) for their help and support in carrying out the study. We would also like to acknowledge our heart felt gratitude to Sh. B.S. Baswan, Director, IIPA for his guidance and encouragement.

Our thanks are also due to Ms. Sapna Chadah and Mr. Virendra Nath Mishra for their help. We also acknowledged the use of various useful material for which appropriate references are also given. We hope that the readers of this volume will find it useful. We will be happy to receive comments and feedback so as to further improve the compilation. 18.06.09 Suresh Misra New Delhi Mamta Pathania Amit Kumar Singh

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CONTENTS

______________________________________Page No

1. Preface i

2. Introduction 5 - 14

3. Australia 15 - 24

4. Bangladesh 25 - 26

5. Hong Kong 27 - 34

6. Indonesia 35 - 47

7. Malaysia 48 - 55

8. Nepal 56 - 67

9. New Zealand 68 - 73

10. Pakistan 74 - 81

11. Philippines 82 - 86

12. Vietnam 87– 93

13. Country wise Comparative Table 94 – 96 14. Websites Referred 97

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Introduction

Globalization has been a much discussed topic in recent years. It involves

greater interaction across national boundaries and affects many aspects of life:

economic, social, cultural and political. However, in order to manage the global

networks; service facilities, including transport and communications; a variety of

professional business and financial services and furthermore the knowledge of

their working patterns in different organizations are required to be studied. In the

same way greater openness in the economies of the region in the face of current

trends towards globalization and regionalization offers promising opportunities for

infusing greater dynamism into their domestic, economies. However, this entails

risks which countries must be aware of and must develop the capacity to manage.

These capacities differ widely across large number of countries.

The Asia-Pacific region comprises of a mixture of developed and developing

countries. The countries of the region such as Australia, Japan, Republic of Korea,

New Zealand and Singapore are categorized as highly industrialized countries;

Bangladesh, Cambodia, China, India, Pakistan and Vietnam are regarded as low-

income countries. Whereas Indonesia and Phillipines are categorized as middle

income countries and Thailand and Malaysia as high income countries. As defined

by the scope of the ECO Asia Project, the Asia-Pacific region is of vast

proportions, stretching northward to Mongolia, southward to New Zealand,

eastward to the island states of Oceania, and westward to Pakistan.

The region also presents a great historical, cultural and ethnic diversity as

well as a variety of stages of political evolution and economic development. On the

part of economic characterization, the Asia- Pacific region has continued to keep

high fiscal growth rates exceeding those in other regions and has consequently

come to be known as the “growth centre” of the global economy.

Looking at the structural, economical and cultural regimes of this region,

one can easily make out that the Asia- pacific region encompasses a wide scope

for further development and enhancement in various sectors; may it be trade and

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commerce, agriculture, environmental management, legal dimensions related to

administration, or furthermore with issues related to the field of protection and

promotion of consumer interest in various walks of life. It is for sure that

globalization, liberalization and privatization has enabled the entry of several

traders, including the large multinationals, who have transformed the economy into

a vibrant, rapidly growing consumer market. This has in a way flooded the market

with different kinds of goods and services, affecting the purchasing patterns of the

consumer. The rural markets of Asian Countries, which were earlier ignored by

most of the big international market players, are now seen as a land of great

business opportunity.

Under this backdrop, it is quite clear that in a market economy with different

products and services coupled by competition, the consumer is in a dilemma as to

how to come to a wise decision while buying products and hiring services. The

clear cut answer to it is framing a law that protects the consumer from being

cheated and exploited at the hands of sellers and furthermore generating

awareness about this aspect. Though, the consumers in almost all countries have

been provided with various safety measures against their exploitation, still the

sellers and producers are hoarding and black marketing the essential goods.

Therefore, it is widely realized that the fate of consumers cannot be left to the

market forces. In this endeavour governments of most of the countries have come

up with some or the other laws related to consumer protection, but there is a dire

need to frame a system which is equiped with the initiatives and policies which are

and which would serve as a strong base for an efficient and effective consumer

protection regime.

A major problem is that the availability of information itself is very difficult, as

most of the information is scattered and there is no systematic compilation of the

available information about the consumer protection laws and legislations. The

present study is an effort to fill this gap. It compiles the existing consumer

protection and welfare laws and rules of Asia- Pacific Region.

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In our endeavour to educate the consumers about consumer protection

laws of different countries, volume II deals with best practices in countries falling in

the Asia- Pacific Region. However some of the countries of this region namely –

China, Japan, Singapore, South Korea and Thailand have already been dealt with

in the First Volume. The Consumer Protection Laws of some specific countries in

the Asia - Pacific Region i.e. Australia, Honkong, Indonesia, Malaysia, Nepal, New

Zealand, Pakistan, Philippines and Vietnam have been dealt in this Volume. A brief

summary of each country is provided below for a bird’s eyeview of the existing

mechanism relating to consumer protection.

1. Australia

� To promote competition and protect consumer interests, the Trade

Practices Act, 1974 came into operation on October, 1974.

� This Act is divided into twelve parts.

� Deals mainly with:

a. Restrictive Trade Practices (Part IV)

b. Unconscionable Conduct (Part IVA)

c. Consumer Protection (Part V)

d. Product Liability (Part VA)

e. Enforcement and Remedies (Part VI)

f. International Cargo shipping (Part X).

� Administered by the Australian Competition and Consumer Commission

(ACCC) (under part II)

� The functions of ACCC are:

a. Enforcement of the Act

b. Dissemination of information

c. Research and Law reform.

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� There are two types of Statutory Rights

• Statutory Condition (If breached, entitlement of refund)

• Statutory Warranties (Breaking a Statutory Warranties gives rise to

other remedies)

� Another body, the National Competition Council, established under the Act

to conduct research and provide advice in relation to matters referred to it

by the Minister.

� Consumer Protection Legislations in Australia also include the Fair Trading

Act, 1987 and the Sale of Goods Act, 1985.

2. Bangladesh

� With regard to the legislations related to consumer protection,

Bangladesh's parliament very lately passed the much awaited country's

first Consumer Rights Protection Law on 1st April 2009, aimed at

protecting consumer rights by way of preventing cheating at weight, price

and quality of what they buy.

� The new law bans the sale at high price, adulteration and faking products,

forgery in weighing goods, selling date-expired items and fraudulence with

advertisement.

� According to the bill, any businessmen found guilty under the law could

face a punishment ranging from one year to three years imprisonment

and minimum Tk 50,000 to Tk 200,000 as fines.

� The law stipulates formation of a National Consumer Protection Rights

Council to be headed by the commerce minister and it will have branches

at the district level.

� Besides, the government will also set up consumer rights protection

tribunals in districts and sub-districts to check unfair practices related to

consumers' goods.

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3. Hong Kong

� Hong Kong does not have a single statue titled as Consumer Protection

Ordinance.

� Consumer Protection Laws here are found in 22 separate statutes, dealing

with different areas of consumer related matters.

� These are, the Consumer Goods Safety Ordinance, Control of Exemption

Clauses Ordinance, Unconscionable Contracts Ordinance, Public Health &

Municipal Services Ordinance, Trade Description Ordinance, Undesirable

Medical Advertisements Ordinance, Sale of Goods Ordinance and Small

Claims Tribunal Ordinance (here the tribunal has jurisdiction over claims for

up to HK $ 50, 000).

� The Consumer Council protects and promotes the consumer interests by-

collecting and disseminating information; receiving and examining

complaints; giving advice to consumers, monitoring trade practice with

particular emphasis on the competition environment in the market place and

encouraging traders to establish codes of practice.

� The Consumer Council is not a law enforcement agency.

� It acts as a trustee of the Consumer Legal Action Fund, established in

November 1994, which gives greater access to legal remedies by providing

financial support and legal assistance to justifiable cases of significant

consumer interest.

4. Indonesia

� The law here is Law on Consumer Protection, 1999 and it came into force

on 21 April, 1999.

� It provides for establishing the National Consumer Protection Board and

Consumer Dispute Settlement Boards.

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� It regulates:

a. Unfair Competition

b. Standard Clauses

c. Warranties and Guarantees

d. Advertisements

e. Product Liability.

� Other laws in force prior to the Law on Consumer Protection, 1999 are:

a. Laws on Hygiene (1966)

b. Laws on Electricity (1985)

c. Laws on Health (1992)

d. Laws on Banking (1992)

e. Laws on Food (1996)

f. Laws on Copyright (1997)

g. Laws on Patents (1997)

h. Laws on Trademarks (1997)

i. Laws on Environment (1997).

5. Malyasia

� The Law in Malayasia is known as “The Consumer Protection Act, 1999”

which came into force on 15 November 1999.

� It comprises of 14 parts and a total of 150 sections.

� The aspects covered by it are:

a. Misleading and deceptive conduct

b. False representations

c. Unfair Practices

d. Safety of goods and services

e. Guarantees in respect of supply of goods

f. Supply of services

g. Rights against suppliers

h. Strict liability for Defective Products

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i. National Consumer Advisory Council

j. Alternative Redress Mechanism in the form of a Tribunal for

Consumer Claims.

� Some other laws providing for consumer issues are

a. The Contracts Act, 1950

b. The Money Lenders Act, 1951

c. The Sale of Drugs Act, 1952

d. The Poisons Act, 1952.

e. The Sale of Goods Act, 1957

f. The Hire Purchase Act, 1967

g. The Radioactive Substances Act, 1968

h. The Pawn brokers Act, 1972

i. The Trade Descriptions Act, 1972

j. The Pesticides Act, 1974

k. The Electrical Inspectorate Act, 1983

l. The Control of Cosmetics Regulations, 1984

m. The Electrical Inspectorate Regulations, 1984

6. Nepal

� The Act is known as “The Consumer Protection Act”, 1998 of Nepal.

� It came into force on 13 April 1999.

� It has 30 sections in total and establishes the Consumer Protection Council.

� The functions of the Council are:

a. Advising the government on matters relating to the protection of

rights and interest of consumers.

b. Prices, quality and purity of consumer goods and services

c. Disseminating information

d. Conducting various studies

� The Act regulates the powers of Inspection officers to inspect and

investigate where there are reasons to believe that products and services

which are not safe or of prescribed standards are being produced sold or

supplied.

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7. New Zealand

� The various statutes relating to consumer protection in New Zealand are:

a. The Fair Trading Act, 1986

b. The Consumer Guarantees Act, 1993

c. The Law by Sales Act, 1971

d. The Hire Purchase Act, 1971

� The Consumer Guarantees Act deals with providing fixed guarantees for

goods and services in trade and it came into force on 1 April 1994.

� The Fair Trading Act deals with certain conduct and practices in trade,

disclosure of consumer information relating to supply of goods and services

and product safety. It came into force on 1 July 1990.

8. Pakistan

� The Act here is “The Islamabad Consumer Protection Act, 1995” and it

extends only to the Islamabad Capital Territory.

� The other laws applicable to the different provinces are:

� NWFP Council, 1997

� Balochistan, Consumers Protection Bill, 2003

� Punjab Consumer Protection Act (Punjab CPC), 2005

� Sindh Consumer Rights Council (CRC), 2005

� The Islamabad Consumer Protection Act, 1995 has 12 sections in total.

� It provides for the promotion and protection of consumer interest through

“Islamabad Consumer Protection Council”.

� The main functions of the Council are:

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a. To determine, promote and protect the rights of consumers

b. To formulate policies for the fair and honest trade practices by

manufacturers, producers and suppliers of goods and services.

� The Consumer Rights here are:

a. The Right to Protection against marketing of goods which are

hazardous to life and property.

b. The Right to Information about the quality, quantity, potency, purity, standard and price of goods and services.

c. The Right of Access to a variety of goods at competitive prices

d. The Right for Redressal against unfair trade practices or

unscrupulous exploitation of consumers

e. The Right to Consumer Education.

� Under the Act, Section 2(f) defines 13 types of conduct, which would be

considered as unfair trade practice.

� Section 8 of the Act describes the complaint handling manner by the

Islamabad Court of Sessions.

� Before the enactment of Islamabad Consumer Protection Act, 1995, the

Sale of Goods Act, 1930 has been in force in Pakistan since 1 July 1930.

9. Philippines

� In Philippines the law related to consumer protection is Consumer Act of

the 1990, which came into effect on 15 July 1992.

� The Act comprises a total of 173 articles.

� Different departments cater to the grievances of consumers with respect to

different products and services. These are:

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a. The Department of Health with respect to food, drugs, cosmetics,

devices and substances.

b. The Department of Agriculture with respect to products related to

agriculture, and;

c. The Department of Trade and Industry with respect to other

consumer products not specified above.

� Under this Act, different set of penalties are applicable to different sectors

and services.

10. Vietnam

� In order to protect the legitimate rights and interest of consumers, the

Ordinance on the Protection of Consumer Interests was established.

� It comprises of 6 Chapters and 30 Articles.

� It deals with:

a. Rights & responsibilities of the Consumer, the responsibilities of

organizations.

b. Individuals carrying out production

c. Business activities

d. State administration on the protection of consumer interests.

The following Chapters gives a detail account of the consumer protection

mechanism in each country. The main provisions of the existing structure are

explained in detail. When a single legislation to protect the consumers does not

exist, a brief mention of the other existing provisions have been made to enable

the readers to have an understanding of the existing framework.

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Australia

Introduction:

Australia is one of the largest countries in the southern hemisphere with

an area of eight million square kilometers. It became a commonwealth of the

British Empire in 1901 and comprises of six states and two major mainland

territories. Much of Australia is arid and flat. One-third of the country is desert and

another third is steppe or semi-desert. The population is just over 21.7 million, of

which 85% live in urban areas.

Approximately 60% population is

concentrated in and around the

mainland state capitals of Sydney,

Melbourne, Brisbane, Perth, and

Adelaide. The nation's capital city is

Canberra, located in the Australian

Capital Territory (ACT).Out of the total

92% of the population are of European

origin, 2% Aboriginal and about 6%

Asian and Middle Eastern.

Australia is a prosperous multicultural country. As per the Human Development

Report, 2007, the status of health care, life expectancy, quality-of-life, human

development, public education, economic freedom, and the protection of civil

liberties and political rights is far much better than the other developed countries of

the world. Based on a federal division of powers, Commonwealth of Australia is a

constitutional democracy and the form of government used in Australia is a

constitutional monarchy with a parliamentary system of government. The three

branches of government here are:

• The legislature: the Commonwealth Parliament, comprising the Queen, the

Senate, and the House of Representatives; the Queen is represented by the

Governor-General, who by convention acts on the advice of his or her

Ministers.

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• The executive: the Federal Executive Council (the Governor-General as

advised by the Executive Councillors); in practice, the councillors are the Prime

Minister and Ministers of State.

• The judiciary: the High Court of Australia and other federal courts. Appeals

from Australian courts to the Judicial Committee of the Privy Council in the

United Kingdom ceased when the Australia Act was passed in 1986.

The Australian legal system is based on a fundamental belief in the rule

of law, justice and the independence of the judiciary. In effect, Australia has nine

legal systems—the eight state and territory systems and one federal system.

However, it is the state and territory criminal laws that mainly affect the day-to-day

lives of most Australians. Similarly for protecting and promoting the interest and

rights of the consumers, Trade Practices Act (TPA) was enacted in 1974.

It is the primary consumer protection legislation and it deals with almost all

aspects of the marketplace: the relationships between suppliers, wholesalers,

retailers, competitors and customers. It covers unfair market practices, industry

codes, mergers and acquisitions of companies, product safety, product labeling,

and price. The Trade Practices Act, 1974 came into operation on 1 October

1974. The Act promotes competition and protects consumer interests. The TPA

contains a range of provisions aimed at protecting consumers, and corporations

that qualify as consumers.

The Act is divided into twelve parts.

The major parts of the Act are:

• Part IIIA— third party access to nationally significant, essential

facilities

• Part IV — anti-competitive practices

• Part IVA—unconscionable conduct in commercial and consumer

transactions

• Part IVB—industry codes of conduct

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• Part V—unfair practices, product safety and information, country of

origin representations, conditions and warranties, misleading and

deceptive conduct

• Part VA—liability of manufacturers and importers for defective goods

• Part VC—criminal conduct in fair trading and consumer protection

• Part VII—authorizations and notifications

• Part VIIA—price monitoring and surveillance relating to industries or

businesses declared by the Australian Government

• Part X—international liner cargo shipping

• Part XIB—anti-competitive conduct in telecommunications

• Part XIC—access to services for telecommunications.

Objectives of the Trade Practices Act, 1974:

The objective of the TPA is to enhance the welfare of Australians through

the promotion of competition and fair-trading and provision for consumer

protection.

Regulatory framework for consumer protection:

The current Australian regulatory framework for consumer protection is

comprised of federal and state/territory consumer protection legislation and some

self-regulatory initiatives. The Consumer Affairs Division of the Department of

the Australian Federal Treasury undertakes consumer protection law, reform

and policy-making. The responsibility for the enforcement of consumer

protection laws at the national level lies with the Australian Competition and

Consumer Commission.

The Trade Practices Act is administered by the Australian Competition

and Consumer Commission (ACCC), which is established under Part II of the

Act. The ACCC is primarily responsible for the enforcement of the Act. Its functions

also include dissemination of information, research and law reform. A new body,

the National Competition Council has also been established under the Act to

conduct research and provide advice in relation to matters referred to it. The Act

enables private parties to take action in respect of another party’s contravention of

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the Act. Other consumer protection legislation in Australia includes the Fair

Trading Act, 1987 and the Sale of Goods Act, 1985.

Role and activities of ACCC:

The Australian Competition and Consumer Commission is an

independent statutory authority. It was formed in 1995 to administer the Trade

Practices Act, 1974 and other Acts. The ACCC promotes competition and fair

trade in the market place to benefit consumers, business community and also

regulates national infrastructure industries. Its primary responsibility is to ensure

that individuals and businesses comply with the Commonwealth's competition, fair

trading and consumer protection laws.

The ACCC is the only national agency dealing generally with

competition matters and the only agency with responsibility for enforcing

the Trade Practices Act and the State/Territory application legislation. In fair

trading and consumer protection, its role complements that of the state and

territory consumer affairs agency which administers the mirror legislation of their

jurisdictions, and the Competition and Consumer Policy Division of the

Commonwealth Treasury. The ACCC recommends dispute resolution when

possible as an alternative to litigation. It can authorise some anti-competitive

conduct, and take legal action when necessary. ACCC initiatives include promoting

consumer education in rural areas and with indigenous communities. The ACCC

has a network of offices in all capital cities and Townsville to handle public

complaints and inquiries. Staff can give guidance to business and consumers on

their rights and obligations under the law, but not legal advice.

Consumer’s Statutory Rights:

The Trade Practices Act implies certain promises into all consumer

contracts that they make, which are often referred to as Consumer’s 'Statutory

Rights'. They could also be referred to as implied warranties and conditions.

Statutory Rights are consumer rights by law and cannot be refused, changed or

limited by the seller.

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There are two types of Statutory Rights—Statutory Conditions and

Statutory Warranties. For most consumers, the difference between conditions

and warranties becomes important when a decision is being made about the

appropriate remedy if something goes wrong.

• Statutory Conditions are essential terms of a contract—they 'make or

break' the deal. If a statutory condition is breached, one is entitled to a

refund.

• Statutory Warranties are also important, but they are not regarded by law

as essential terms of the contract. Breaking a statutory warranty may,

however, give rise to other remedies.

Statutory Conditions (goods):

The Trade Practices Act implies the following statutory conditions into

consumer contracts:

• The goods must be of merchantable quality. That is, they must meet a

basic level of quality and performance, taking into account their price and

description. They also should be free from defects that were not obvious to

a consumer at the time of purchase.

• The goods must be fit for their purpose. That is, they should do what they

are supposed to do and be suitable for any purpose that one might have

made known to the consumer.

• The goods must match the description given to the consumer or the

sample which he/she chooses from. For example, any carpet laid must be

the same quality and colour as the sample one chooses from.

• Consumers must receive clear title to the goods, including goods bought at

auction. In other words, one can expect to own the goods outright and any

restriction on ownership should be explained to the consumer beforehand.

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Statutory Warranties (services):

The Trade Practices Act implies the following statutory warranties into

consumer contracts:

• Services must be carried out with due care and skill.

• Any materials supplied in connection with the services must be reasonably

fit for the purpose for which they were supplied.

• Consumers are entitled to enjoy quiet possession of the goods and to own

the goods outright. No money should be owing on the goods the

consumer has acquired (unless this is disclosed to the consumer), and no

one who tries to claim title to the goods through the supplier should disturb

consumer’s quiet possession of the goods.

Statutory Rights for second hand goods:

Statutory rights apply whether the goods are new, 'seconds' or second-

hand. While one can expect that goods or services will meet the basic

requirements outlined above, one should be prepared to take reasonable account

of factors like price and age. For example, a consumer could expect a second-

hand vacuum cleaner to work without any repairs if it has been sold for the

purpose of vacuuming, but it may not be expected to last as long, or perform to the

same standard as a new one.

Statutory rights for Goods bought at auction:

Apart from implied rights in relation to clear ownership rights, the statutory rights

above do not cover goods bought at auction.

Complaint Procedure:

According to the ACCC guidelines consumers have different options to resolve

their problems.

Step 1: Approach the business: In the first step, Consumers can contact the

business to explain the problem. They can ask for remedies what they want e.g. a

refund or exchange. If this step does not work, they can move on to step 2.

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Step 2: Making a written complaint: Consumers can write letter directly to the

business or email to the manager or the company’s head office and can set out

what he or she is complaining about and also the wanted outcome (as in step 1).

One can ask for response from the business within two weeks.

Step 3: Contacting the ACCC or another third party: If steps 1 and 2 don’t

resolve consumer’s complaint, he/she still has several options. The best place to

go will depend on consumer’s circumstances. For that the ACCC Info centre can

refer to the appropriate government department, industry ombudsman or dispute

resolution scheme and provide contact details, e.g.

(1) Industry ombudsman and other dispute resolution schemes

Some industries including the telecommunications, financial services, energy,

water and insurance industries provide free complaints services through an

ombudsman or an independent dispute resolution scheme.

(2) State and territory offices of fair trading/consumer affairs

Local state or territory office of fair trading (sometimes called 'Consumer

Affairs') can also provide information and suggestions for consumers.

(3) Small Claims Courts and Tribunals

Consumers may be entitled to take their complaint to the Small Claims Court

or Tribunal in their State or Territory. Consider getting independent legal

advice (e.g. from a Community Legal Centre or Legal Aid Office) about

whether this option is available and suits their circumstances.

(4) Other private legal action

For disputes involving large amounts of money, a consumer may be able to

take private legal or court action under the Trade Practices Act or other laws.

Make sure that one gets independent legal advice first, as legal action can be

expensive and there is no guarantee that he or she will be successful.

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Remedies:

The provision of remedies for aggrieved consumer under the Trade Practice

Act is mentioned under Sections 80, 82 and 87 of Part VI, where relief is claimed

in the context of a misleading and deceptive conduct claim in breach of section 52.

It also assess the application of section 75 which is concerned with the way in

which person may be involved in a contravention of these sections of the TPA.

To establish breach of section 52, the aggrieved party must establish a

causal link between the breach of the prohibition and the loss claimed. Once

established, the type of remedy and quantum of damages awarded will depend on

the type of damage and/or loss suffered and what the Court considers is

appropriate in the circumstances. A breach of section 52 may result in two streams

of remedies loosely classed as follows:

• Preventative or corrective orders are non-monetary orders which

include:

• a prohibitory injunction (preventative);

• a mandatory injunction (corrective). For example, sec. 80(1) of the TPA states

that the “Court may grant an injunction in such terms as it determines”; and

• corrective advertising (corrective).

Non-monetary orders are primarily directed at preventing or correcting

misleading conduct rather than redressing damage caused by a breach.

• Compensatory orders include:

• a monetary award (sec. 82); and/or

• orders to prevent or reduce loss or damage (sec. 87).

Compensatory orders are aimed at redressing individual losses caused by

contraventions of the TPA.

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Penalties:

The ACCC is vigorous in bringing court actions against companies that

breach the TPA. Penalties for non-compliance of the TPA can be quite severe.

Companies that do not comply with the restrictive trade practice’s provisions of the

TPA may be fined by the Federal Court. There are three ways the maximum fine

can be calculated. The maximum possible fine is the larger of AU$10,000,000;

or three times the value of the illegal benefit; or (if the value of the benefit cannot

be ascertained) 10% of turnover for the preceding 12 months. Individuals may be

fined up to AU$500,000.

Companies that do not comply with the consumer protection provisions of

the TPA may be fined by the Federal Court, up to $1.1 million for companies

and $220,000 for individuals.

The ACCC also has power to accept, on its own behalf, court enforceable

undertakings under section 87B of the Trade Practices Act. Such undertakings

may include a wide range of remedies to the conduct. A range of other remedies

can be ordered by the court. For example, companies are frequently forced to

publish retractions of false advertising claims in national newspapers and at their

places of business. Companies found in breach of the TPA are usually bound to

implement a compliance program to ensure future compliance with the act.

Although the penalties permitted by the Trade Practices Act are quite

severe, there has been reluctance by the courts to impose the maximum penalty.

There has been a move recently to make certain offences under competition law

(such as price fixing or participation in a cartel) into criminal offences rather than

purely civil breaches. It is generally thought that the possibility of being found guilty

of a criminal offence -- and the possibility of a custodial sentence for executives

involved -- will provide a much stronger deterrent to anti-competitive behaviour.

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Summary of the Type and Range of Remedies Available under Part IV of the

TPA Section Application Remedy

Application Remedies

To prevent or

correct

misleading

conduct

• Injunction; and

• Corrective advertising

To redress

individual

losses caused

contraventions

of the TPA.

Economic or financial compensation for the amount of the loss or

damage sustained under the following heads of damage;

• capital loss;

• trading loss;

• wasted expenses (usually subsumed under the above 2 heads

of damage. If there are no capital or trading losses, wasted

expenses will often be the primary head of damage claimed);

• lost interest;

• lost income;

• damage to commercial reputation.

Likely to suffer

loss or

damage

• that the whole or part of a contract is void: sec. 87 (2)(a);

• that a contract or arrangement be varied;

• refusing to enforce a contract;

• the refund of money or return of property: section87(2)(c)

(specific performance);

• the payment of compensation (overlaps with sec. 82 but here the

cause of action arises when loss or damage is likely to be

suffered);

• an undertaking to repair or supply parts: sec. 87(2)(e) (specific

performance);

• the provision of specified services: sec. 87(2)(f) (specific

performance);

• the termination of a lease and mortgage or the transfer of land

sec. 87(2)(g) (specific performance).

25

Bangladesh

Introduction:

Bangladesh, officially known as the People’s Republic of Bangladesh, is one of

the youngest countries in South Asia. The present-day Bangladesh was created in

1971 by the partition of Pakistan. Bangladesh is situated between 20 degree 34' to

26 degree 38' north Latitude and from 88 degree 01' to 92 degree 41' east

Longitude. It is bordered by India on all sides except for a small border with Burma

(Myanmar) to the far southeast and

by the Bay of Bengal to the south.

The total area of the Bangladesh is

144,000 square kilometers.

Geographically, the country is low-

lying riverine and most of the areas

are formed by the delta of Ganges

and Brahmaputra rivers. Here lands

are exceedingly flat and distressed

to annual flooding. With a population

of approximately 150 million, Bangladesh is the seventh most populous country in

the world and is among the most densely populated countries in the world with a

high poverty rate.

Bangladesh is a parliamentary democracy but the country has experienced

many upheavals in the first 35 years of nationhood after the 1971 war of

liberation. On several occasions elected Democratic Governments of Bangladesh

have been overthrown by military coups. In 1991, it reentered into democracy

after a long period of military rule. Under the Constitution of Bangladesh, the

President is the head of state but it is a largely ceremonial post, the real power is

held by the Prime Minister. As far as legislative powers are concerned, it is

vested in a Single Chamber Parliament.

26

Consumer Protection Act:

With regard to the legislations related to consumer protection,

Bangladesh's parliament very recently passed the much awaited Consumer

Rights Protection Law on 1st April 2009, aimed at protecting consumer rights by

way of preventing cheating at weight, price and quality of what they buy. In the

past, Bangladesh had made several attempts to enact comprehensive consumer

protection legislation but somehow they failed to rectify it by the Parliament. For

instance, the first Draft to protect the interest of the consumers; to set standards

in business; and to establish necessary institutions was formulated in 1998. On

29th October, 2000 the Law Reform Commission published a report on the draft

Act. The draft Act got the preliminary approval at the cabinet but was again sent

to the Secretarial Committee meeting for further scrutiny.

The new law bans the sale at high price, adulteration and faking products,

forgery in weighing goods, selling date-expired items and fraudulence with

advertisement. These are considered as serious crimes, and the law also spells

out fit punishment for such offences. According to the bill, any businessmen found

guilty under the law could face a punishment ranging from one year to three years

imprisonment and minimum Tk 50,000 to Tk 200,000 as fines.

There are provisions for at least 20 types of crimes ranging from hoarding,

flouting of packaging rules to over-charging for products. The law stipulates

formation of a National Consumer Protection Rights Council to be headed by the

Commerce Minister and it will have branches at the district level. Besides, the

government will also set up Consumer Rights Protection Tribunals in districts and

sub-districts to check unfair practices related to consumers' goods. Consumers will

be allowed to take legal steps individually. They can file complaint through e-mail,

fax or other sources to the Director General concerned regarding such crimes.

∗ This is as per the information available till date.

27

Hong Kong

Introduction:

Hong Kong is a world-class financial, trading and business centre and,

indeed, a great world city, now it is an official territory of People's Republic of

China located in Southern China in East Asia. It consists of Hong Kong Island,

Kowloon, and the New Territories, with a total area of 1,092 sq km. Situated at the

south-eastern tip of China, Hong

Kong is ideally positioned at the

centre of rapidly developing East

Asia. Hong Kong's population

was about 6.94 million in mid-

2005. Hong Kong has a large

foreign population of about 0.5

million and most of them came

from the Philippines, Indonesia

and Thailand.

Since ancient times Hong Kong was a Chinese territory. In 1840, Hong

Kong had been occupied by Britain after the Opium War and remained so until

transfer of sovereignty of Hong Kong to the People's Republic of China in 1997. In

1997, in accordance with the Sino-British Joint Declaration, the two governments

held a hand-over ceremony. The Hong Kong Special Administrative Region

(HKSAR) of the PRC was formally established and the Basic Law of the HKSAR

was adopted in April 1990. The Basic Law makes clear and definite specifications

on a high degree of autonomy, and the political, economic, cultural and education

systems of the HKSAR. As a result, Hong Kong is largely self-governing, has its

own currency, legal and political systems, a high degree of autonomy in all areas

except foreign affairs and defence, and is generally not considered part of

mainland China. Hong Kong has a well-established and trusted legal system

based on the common law.

As far as the consumer protection scenario is concerned, Hong Kong does

not have a single statute for Consumer Protection. There are 22 laws in Hong

Kong which have separate statutes dealing with different aspects of consumer

Source: www.sino.net

28

protection. These include, for example, the Consumer Goods Safety Ordinance,

Control of Exemption Clauses Ordinance, Unconscionable Contracts Ordinance,

Public Health & Municipal Services Ordinance, Trade Descriptions Ordinance,

Undesirable Medical Advertisements Ordinance, Sale of Goods Ordinance and

Small Claims Tribunal Ordinance.

Objectives of the Consumer Protection:

The primary objectives of consumer protection policy is to ensure that the

products (and services) procured by consumers are safe, the quality is up to their

expectation, and the contract terms are fair. It also ensures that aggrieved

consumers have access to conciliation or relevant legal remedies and are given

adequate consumer education and information. The Consumer Council assumes

the front-line role in handling complaints, mediating in consumer disputes and

conducting tests and surveys on products and services.

Consumer Rights:

The following eight basic consumer rights serve as a commonly accepted

basis upon which consumer advocacy groups worldwide develop programmes in

order to meet the expectations of the communities in which they work.

1. The right to satisfaction of basic needs - To have access to basic,

essential goods and services: adequate food, clothing, shelter, health care,

education, public utilities, clean water and sanitation.

2. The right to safety - To be protected against products, production

processes and services which are hazardous to health or life. Personal data

and privacy should be respected and protected.

3. The right to be informed - To be given the facts needed to make an

informed choice, and to be protected against dishonest or misleading

advertising and labeling. Information to consumers such as product

specification, place of origin, safety warnings, price, mode of payment, date

of quality assurance, description of after-sale services, warranty, ingredient,

nutritional facts, etc.

29

4. The right to choose - To be able to select from a range of products and

services, offered at competitive prices with an assurance of satisfactory

quality.

5. The right to be heard - To have consumer interests represented in the

policy making process of government, trade, professional and industry

associations, where the making and execution of those policies will have an

impact on the supply of goods and services to consumers.

6. The right to redress - To receive a fair settlement of just claims, including

compensation for misrepresentation, shoddy goods or unsatisfactory

services.

7. The right to consumer education - To acquire knowledge and skills

needed to make informed, confident choices about goods and services,

while being aware of basic consumer rights and responsibilities and how to

act on them.

8. The right to a healthy and sustainable environment - To live and work in

an environment which is non-threatening and sustainable to the well-being

of present and future generations.

Redressal Mechanism:

The Economic Services Bureau since July 2000 works out the overall

policy responsibility for consumer protection. The Consumer Council assumes the

front-line role in handling complaints, mediating in consumer disputes and

conducting tests and surveys on products and services.

Consumer Council:

The Consumer Council plays an essential role in protecting consumer

interests. The Council is an independent organization established in 1974. Its

functions and powers were formalised with the enactment of the Consumer

Council Ordinance in 1977.

30

Functions of the Consumer Council:

The Consumer Council's functions and powers are defined under the

Consumer Council Ordinance. It’s major functions are to protect and promote the

interest of consumers by collecting and disseminating information, receiving and

examining complaints, giving advice to consumers, monitoring trade practice with

particular emphasis on the competition environment in the market place and

encouraging traders to establish codes of practice. It is, however, not a law

enforcement agency. The Consumer Council also acts as the trustee of the

Consumer Legal Action Fund established in November 1994. The Fund aims to

give greater access to legal remedies by providing financial support and legal

assistance to justifiable cases of significant consumer interest. It also tests

products, conducts in-depth studies and surveys, publishes a consumer magazine

"CHOICE", and examines and responds to consultation papers and reports on

consumer-related issues.

The legal framework for the general protection of consumers include laws

that ensure that – goods supplied for local consumption satisfy safety standards

(e.g. the Consumer Goods Safety Ordinance and the Toys and Children's Products

Safety Ordinance);goods and services supplied are of reasonable quality (e.g. the

Supply of Services (Implied Terms) Ordinance and the Sale of Goods Ordinance);

and goods and services supplied are offered on fair terms (e.g. the unconscionable

Contracts Ordinance and the Trade Descriptions Ordinance). These general

consumer protection laws are enforced mainly by the Customs and Excise

Department.

Structure of the Consumer Council:

There are 22 members in the Council, appointed by the Chief Executive and

Financial Secretary of the Hong Kong Special Administrative Region (HKSAR).

The Council operates through a structure comprising of different functional

committees, which may also include co-opted members. The Council Office is

headed by its Chief Executive, who is also appointed by the Chief Executive of the

HKSAR. There are eight functional divisions which discharge the full range of the

Council's functions.

31

Functional Divisions of Consumer Council

Consumer Legal Action Fund:

It provides legal assistance to consumers with meritorious cases for the

protection of consumer interests. The fund, with the council as its trustee, is

administered by a Board of Administrators underpinned by a Management

Committee with members appointed by the Government. Since its establishment in

1994, the fund has considered 40 groups of cases, with the number of applicants

in each case ranging from one to more than 800.

Redressal Agencies:

Since the Council is not a law-enforcement body, it has no authority to sue

traders. The relevant complaints are dealt with by way of mediation. However, the

Council can censure trade mal-practices by naming/publicizing the traders

concerned .For cases that involve significant consumer interest but cannot be

resolved by mediation or other means, applications for assistance can be made to

the Consumer Legal Action Fund. Complaints may also be made to other relevant

organizations.

32

Redressal Agencies of Hong Kong

1 Small Claims Tribunal civil claims for an amount of below $50,000

2 Customs and Excise Department

short weight, fake merchandise, spurious products

3 Food and Environmental Hygiene Department

unwholesome food products, hygienic condition of food business operations

4 The Law Society of Hong Kong

conduct of solicitors

5 The Medical Council of Hong Kong

conduct of medical doctors

6 Travel Industry Council of Hong Kong

complaints against travel agents

7 Insurance Claims Complaints Bureau

insurance laws settlement disputes

8 Insurance Agents Registration Board

conduct of insurance agents

9 Consumer Legal Action Fund

legal assistance in specific circumstances

Apart from complaining to the Consumer Council or the Customs and

Excise Department, consumers can seek the advice of a solicitor. There is always

the option of going to court. Sometimes, just telling the bad trader that he or she

can go to court is enough to get his/her complaint sorted out.

Small Claims Tribunal:

If the consumer decides to go to court, there is a special way of suing for

small amounts by using the small claims procedures in the Small Claims Tribunal.

No person can be represented by a lawyer in the Small Claims Tribunal (but

consumer can consult a lawyer before attending the Tribunal's hearing).

The upper limit of claim by using the small claims procedures is HK$50,000.

If the claim exceeds $50,000, consumers are not allowed to subdivide it in order to

bring to the Tribunal a number of cases that are each below the $50,000 limit. The

33

only way consumers can bring a claim in excess of the $50,000 limit before the

Tribunal is if they abandon any amount above $50,000.

Types of claims handled by the Small Claims Tribunal include:

• debts;

• service charges;

• damage to property;

• consumer claims (e.g. claims relating to goods or services with poor

quality).

If consumers do not want to claim to the Small Claims Tribunal, and wish to

have it tried in the District Court or the High Court, they can apply for legal aid if

they satisfy certain conditions set out by the Legal Aid Department.

District Court or High Court:

If the amount of claim is over $50,000, claim can be submitted to the

District Court or the High Court. The maximum claim that can be handled by the

District Court is $1,000,000. While for the High Court, there is no upper limit on the

claim amount. Since the claim amount is bigger and the procedures involved are

much more complex, consumers are strongly advised to find a lawyer to represent

them in any proceedings in these two courts.

Complaint Procedure:

If consumers come across unfair trade practices, e.g., goods or services not

correspond to description; delay in delivery; dissatisfaction to service, and the

traders fails to address consumers concern, they can lodge their complaint with

the Consumer Council in the following ways:-

1. In writing

2. By Phone

3. By Fax

4. In person

5. On-line

If the Defendant ignores the claim and does not appear at the first hearing, the

Claimant can apply for judgment against the Defendant provided he can satisfy the

34

Tribunal of the claim and further that the notice of hearing had been served on the

Defendant. It is the duty of both the Adjudicator and the Tribunal Officer to attempt

to mediate the dispute. If both parties agree to settle, the Tribunal Officer submits

the settlement to the Adjudicator for a consent order. The consent order is then

sent to both parties by mail.

If not satisfied with the Tribunal's decision and if the Tribunal has struck out

claimants claim or made an award against the claimants in his absence, they

should not lodge an appeal. Instead, they should apply immediately to set aside

the order with the Tribunal. Consumers can apply for a review by the Tribunal,

within 7 days after the date of the court order or award being made and they

need to pay a prescribed fee. Consumers can also apply for a review by the

Court of First Instance, in which case consumer must make an application within 7

days after the order is made.

If consumers are not satisfied with the order or judgment of the Adjudicator,

they have two options:

• apply to the Tribunal for review, or

• apply to the Court of First Instance of the High Court for permission,

or "leave", to appeal.

35

Indonesia

Introduction:

The Republic of Indonesia is the largest archipelago of the world. It is a

transcontinental country in Southeast Asia and Oceania region and composed of

seventeen thousand islands that stretch over five thousand miles along the

equator. Indonesia is situated between 6 degrees north latitude to 11 degrees

south latitude and from 9

degrees to 141 degrees east

longitude and in terms of land

area it is the world's 16th-

largest country. The five major

islands of Indonesia are:

Sumatra, Java, Kalimantan,

Sulawesi and Papua.

According to 2000 National

Census, the total population

of Indonesia is 206 million.

Indonesia is a republic with a presidential system. Being a unitary state,

power is concentrated in the national government. The legal system of Indonesia is

complex as it is a confluence of three distinct systems and these three strands of

adat law, Dutch colonial law and national law co-exist in modern Indonesia. They

have been substantially enhanced and modified over the years to cater to

indigenous concepts and new criminal procedures code being enacted every year.

Similarly in order to integrate and strengthen the enforcement of consumer

protection in Indonesia, the Law on Consumer Protection n.8 of 1999 was

enacted on April 20, 1999.

In Indonesia, the process of implementing the Consumer Protection Act

started since 1980s. However, it was finally enacted in 1999 with the issue of Act

No. 8, 1999, by Government of Indonesia. Prior to this Act, there were several laws

related to the consumer protection but the position of consumers of Indonesia was

very weak and entrepreneurs did not care about the consumer’s rights. The

Source: www.sino.net

36

implementation of the Act has given hopes to the Indonesian consumers for proper

protection while consuming goods and hiring services.

Legal principle of Consumer Protection:

Basically, there are two important legal instruments serving as foundation

for consumer protection policies in Indonesia, namely:

First: - Constitution of 1945, as source of all legal sources in Indonesia, mandates

that national development is aimed to realize just and prosperous society.

Objective of national development is realized through democratic economic

development system thus it could grow and develop world producing goods and

services consumed properly by public.

Second: - Acts of 1999 No. 8 on Consumer Protection (referred to as UUPK). The

establishment of these Acts grants hopes for Indonesian society, in order to have

protection on loss or disadvantage burdened for goods and service transactions.

UUPK secures law assertion for the consumers.

Objectives of Consumer Protection:

Based on Article 3 of Act of Consumer Protection, the objectives of consumer

protection are:

1. To increase awareness, capability, and independence of consumers in

protection of themselves,

2. To lift up value and dignity of consumer by getting rid from negative

accesses in the uses of goods or services,

3. To increase consumer’s exploration in selecting, deciding and claiming his

or her rights as consumer,

4. To create consumer protection system that include law assertion and

information openness as well as access of having information,

5. To grow awareness of business performer on the importance of consumer

protection thus generating honest attitude and responsibility in conduct of

the business,

37

6. To increase qualities of goods and/or service securing sustainability of

goods-or-services-producing businesses, health, comfortability, security

and consumer’s safety.

Principles of Consumer Protection:

1. Principle of Benefit; mandates or instructs that all the efforts in exertion

consumer protection must provide as much benefit as possible for the

interest of consumer and business performer in general,

2. Principle of Justice; participation of all people can be realized in

maximum and provide the opportunity for consumer and business

performer to gain their rights and to implement their duties fairly,

3. Principle of Parity; giving balance between interest of consumer,

business user, and government in sense of material or spirit,

4. Principles of Security and Consumer’s Safety; giving guarantee on

security and safety of consumer in the use, application, and utilization of

goods and/or service consumed or used;

5. Principle of Law Assertion; either business performer or consumer are

subject to law and gains justice in the exertion of consumer protection,

and the state guarantees law assertion.

Rights of Consumer:

In accordance with Article 5 of Acts consumer protection, Rights of Consumer are

as follows:

1. Rights on comfortability, security and safety in consumption of goods

and/or services;

2. Rights to select goods and/or service as well as to gain goods and/or

service appropriate with exchange value and condition as well as warranty

promised;

3. Rights on correct information, definitive and honest regarding condition

and warranty of goods and/or service;

4. Rights to opinion and complaint listening of goods and/or service used;

38

5. Rights to have advocacy, protection and attempts of dispute settlement on

appropriate consumer protection;

6. Rights to have guidance and education of consumer;

7. Rights to have been treated or served justly and truthfully as well as in

discriminatively;

8. Rights to have compensation, loss replacement, in case goods and/or

service accepted is not commensurate with the agreement or not as the

way as it is properly;

9. Rights arranged in the stipulation of constitution and other acts.

Duties of Consumer:

Based on Article 5 Acts of Consumer Protection, the Duties of Consumer are as

follows:

1. To read or follow informational direction and procedures of using or utilizing

goods and/or service, for security and safety;

2. Good intention in conducting the transaction of goods and/or service

purchasing;

3. To pay appropriate with consented exchange value;

4. To follow up attempts of legally settling disputes on consumer protection in

proper ways.

Independent Consumer:

Characteristics of Independent Consumer are as follows:

1. Aware of consumer’s value and dignity, able to protect him or herself and

family;

2. Be able to decide selection of goods and services appropriate with the

interest, necessity, capability and situation guaranteeing security, safety,

and health of the consumer him or herself;

3. Be frank and responsible;

4. Be courageous and able to reveal opinion, as well as dare to maintain and

preserve the rights;

5. Be law-and culture-aware on consumer protection;

39

Warning for Consumers:

1. Be critical towards advertisement and promotion and not easily be

influenced;

2. Be careful before buying;

3. Accustomed to shop based on plan;

4. Select qualified and standard goods in conform to aspects of security,

safety, comfortability and health;

5. Buying on the basis of need and capability;

6. Look into the label, remark of goods and services as well as the expiry;

Implementing Agencies of Consumer Protection:

In order to develop consumer protection efforts, a National Consumer

Protection Agency and a Consumer Dispute Settlement Board has been

established in Indonesia.

National Consumer Protection Agency (NCPA):

The establishment of NCPA has been mandated by Act No. 8/1999 on

Consumer Protection and Government Regulation No. 57/2001. This agency

started operating since October 5, 2004, according to President Decree No.

150/2004.

NCPA, which was formed by the Government, is an independent

organization and gives suggestions and consideration for the Government in their

effort on protecting consumers in Indonesia. The current prominent activity of

NCPA is to design grand scenario of protection policy for confirming the tendency

and priority in handling consumer protection effectively in the future, also

enhancing and formulating the amendments of Consumer Protection Act, as a

consideration for the government in perfecting the Consumer Protection Act.

40

Task of the NCPA:

The main functions of NCPA include:

1. To give suggestions and recommendations to the government in order to

design the consumer protection policy,

2. To do research and examination on the valid constitutional provisions in

consumer protection area,

3. To do research in Goods and/or services which relate to the consumer safety,

4. To support the development of consumer protection non-governmental

organizations (NGOs),

5. To disseminate information through media on consumer protection and

socialize the sidedness behavior to the consumers,

6. To accept claims on consumer protection from the community, consumer

protection NGOs and entrepreneurs; and

7. To do surveys on consumer needs.

Organisational Setup:

The National Consumer Protection Agency consists of one Chairman

serving concurrently as a Member, a Vice Chairman serving concurrently as a

Member, and at least 15 (fifteen) Members and at the most 25 (twenty-five)

Members representing all elements. Members of the National Consumer

Protection Agency are appointed and terminated by the President upon the

recommendation by the Minister, after consultation with the House of

Representatives of the Republic of Indonesia.

The term of office of the Chairman, Vice Chairman and Members of the

National Consumer Protection Agency is for three years and can be reappointed

for another term. The Chairman and Vice Chairman of the National Consumer

Protection Agency are selected by the Members.

Located in Jakarta, NCPA has determined their tasks and the job

description based on the NCPA Chairman Decree No. 02/BPKN/Kep/12/2004. In

smoothing their tasks and functions on enhancing consumer protection, NCPA has

formed some commissions. They are:

41

1. Commission I : Research and development,

2. Commission II : Information, education, and claims

3. Commission III : Cooperation

Consumer Dispute Settlement Board (CDSB):

CDSB is a non structural organization, which is located in all districts and

cities and has function to “settle consumer disputes outside the court”. The

membership of CDSB consists of elements from government, consumers, and

entrepreneurs.

CDSB is expected to be able to ease, fasten, and guarantee the law

certainty for the consumer in claiming their civil rights to the erroneous

entrepreneurs. Furthermore, CDSB can be an access for information and law

certainty guarantee which is equal for consumers and entrepreneurs.

In the settlement process of consumer disputes, CDSBs is authorized to

perform research and examination on the evidence of letter, document, goods,

laboratory test result, and other evidences, whether proposed by the consumers or

the entrepreneurs.

In the first phase, according to the President Decree No. 90/2001, 10 CDSB

have been established, although there are only 8 CDSB who are actively operated.

In the second phase, based on President Decree No. 108/2004, there are 14

CDSB established, out of which only 10 of them are actively operated. In the third

phase, according to President Decree No. 18/ 2005, there are 4 CDSB formed, out

of which only one of them is actively operated. Overall, there are 22 CDSB which

are in operation.

Dispute Settlement:

Every consumer who has suffered damages may file charges against the

entrepreneurs through the foundation which is responsible for settling the disputes

between the consumers and entrepreneurs or through a court under the

jurisdiction of general court.

Consumers’ disputes can be settled in a court or outside the court based on

the voluntary choice of the disputed parties. Settlement of the disputes outside the

42

court does not forfeit the penal responsibility as regulated in the law. Further the

efforts to settle the consumers disputes outside the court has been made, charges

can only be filed in the court if the said efforts are declared unsuccessful by one of

the parties or by both of the parties in dispute

Filing a Complaint

Charges against violations by the entrepreneurs can be filed by:

1. A consumer who has suffered damages or his/her heir;

2. A group of consumers who have common interests;

3. A non-governmental consumer protection foundation which has met the

requirements, both in the form of a legal entity or foundation, whose articles

of association clearly mention that the objective of the establishment of the

said organization is to protect the consumers and has conducted activities

pursuant to its articles of association;

4. The government and/or related agency if the goods and/or services

consumed or used have caused great material damages and/or many

casualties.

Medium of filing complaint

1. Via Telephone

2. Direct Visit: Consumer brings along the problems directly to Complaint

Service, submit in Directorate of consumer protection.

3. Mass Media: Relationship or intercourse is welcome by Complaint

Service Submit through mass media particularly Letter of Reader.

4. Internet: Complaint from internet is followed-up by (i) Problem

classification (ii) Identity checking (iii) Directly responded via internet

Form of Complaint:

1. In Writing :Public complaint can be submitted in writing, dispatched via

letter in the conditions if :

a. The address and identity are known

b. It can be communicated in English or Indonesia

c. Included in category of consumer protection

43

d. Furthermore it is processed in register

e. It is reconfirmed

f. Next process is via following the above stipulation.

2. In Verbal :Public Complaint can be submitted in verbal, sent via letter by

the following conditions

a. To fill/to be filled in registration form

b. It can be communicated in English and Indonesia

c. Included in category of consumer protection

d. Then it is processed in register

e. It is reconfirmed

f. Next process is via following the above stipulation.

Dispute Settlement Mechanism:

According to the Consumer Protection Act, the settlement of consumer

dispute can be done through litigation and non- litigation. It is the disputer who has

to choose the way to settle his dispute. The settlement with non-litigation can be

done through Alternative Dispute Resolution (ADR) in CDSB, CP-NGOs,

Directorate of Consumer Protection or other locations both side have agreed to.

When both side have decided to take non-litigation settlement, later on when they

want to go to the court (litigation) for the same dispute, they can only end their

claim to the court if the non-litigation settlement failed. ADR is based on the

consideration that litigation settlement in Indonesia has tendencies of a very formal

process.

Settlement through CP-NGOs:

Usually conducted by mediation, letting both sides to settle their dispute by

themselves. Settlement done by each side of the disputers or through CP-NGOs is

not regulated under Consumer Protection Act, because generally it is initiated by

both sides of the disputers and doesn’t need any certain/special regulations.

Alternative Conveyed in Consumer Protection Act is outside court settlement

44

through CDSB on cases in which both sides cannot complete by themselves either

because the entrepreneur doesn’t give any response or no agreement obtained.

Settlement through CDSB:

CDSB is a non structural institution having the function of “setting consumer

dispute outside the court cheaply and simple in short time.” It takes the position in

all regencies and cities throughout Indonesia. The members consist of government

officials, consumers and entrepreneurs.

CDSB is supported to guarantee legal confirmation (provision) for

consumers to claim their civil rights easier and faster against entrepreneurs.

Besides, it can also be an access to get information and the guarantee of equal

law protection both for the consumers and the entrepreneurs.

In handling and settling consumer disputes, CDSB has the authority to carry

out observation and investigation on the letters of evidence, documents. Invoices,

lab examinations results and other evidences by both consumer and entrepreneur

with binding final settlement.

Main Duties of CDSB:

1. Handling consumer dispute through mediation, conciliation or arbitration;

2. Consulting consumers in terms of consumer protection;

3. Controlling the inclusion of standardize clauses;

4. Giving administrative sanction to entrepreneurs who break this provision;

Dispute settlement mechanism in CDSB:

� Conciliation:

a. CDSB forms a council as a passive facilitator ;

b. The council lets the disputers to settle their dispute entirely by themselves

for the form and the amount of redress;

c. When a settlement is achieved, it will be put into the reconciliation

agreement strengthened by CDSB’s decision;

d. The settlement takes 21 working days the longest.

45

� Mediation:

a. CDSB forms a council function as an active facilitator to give directions,

advice and suggestions to the disputers;

b. The council lets the disputers to settle their dispute entirely by themselves

for the form and the amount of redress;

c. When a settlement is achieved, it will be put into the reconciliation

agreement strengthened by CDSB’s decision;

d. The settlement takes 21 working days the longest.

� Arbitration:

a. The disputers choose CDSB council as the arbiter in settling consumer

dispute;

b. Both sides entirely let the council to settle their dispute;

c. CDSB make a binding final settlement;

d. The settlement should be completed in 21 working days the longest.

e. When both sides are not satisfied on the settlement, both sides can

complain to the state court, 14 days after the settlement been

informed;

f. The claims of both sides must fulfill the following requirements :

• The letter or document given to the court is admitted or claims

false/counterfeit;

• Decisive document is found and hidden by the adversary; or;

• The settlement is taken through one of the side’s tricks in the dispute

investigation at the court;

g. The state court of justice council is obligated to give the settlement in

21 working days;

h. If both sides are not satisfied on the court’s decision/settlement, they

are still given the opportunity to have a concurrent jurisdiction to the

supreme court within 14 days.

i. The Supreme Court Justice Council is obligated to give the settlement

in 30 days.

46

Reliefs/Penalties:

Sanction for Business Performer according to Acts of 1999 No. 8 on Consumer

Protection the reliefs and penalties are:

Civil Law Sanction:

• The compensation is as follow :

• Money Return or

• Goods replacement or

• Health nurse, and/or

• Grant provision days

• Compensation or loss replacement is provided within period of 7

(seven) after transaction date

Administrative Sanction:

It is maximum Rp. 200.000.000 (two hundred millions rupiah), through

BPSK if against Article 19 sub article (2) and (3), 20, 25

Criminal Law Sanction:

Imprisonment:

• To be imprisoned, 5 (five) years, or fine Rp. 2.000.000.000 (two billion

rupiah)

• (Article 8, 9, 10, 13 sub article (2), 15, 17 sub article (1) character a, b, c,

and Article 18.

• To be imprisoned, 2 years, or fine Rp.500.000.000 (five hundred million

rupiah)

• (Article 11, 12, 13 sub article (1), 14, 16 and 17 sub article (1) character

d and f

• Stipulation on other criminal law (outside Acts of 1999 No. 8 on

Consumer Protection) in case consumer seriously harms, sicks,

permanently defect or dies

47

Additional sentences, such as:

• Announcement of Judge decision;

• Business license removal;

• Forbidden to trade goods and service ;

• Obligatory to withdraw from distributing goods and service;

• Overseeing result is distributed to public.

48

Malaysia Introduction:

Malaysia is a federal constitutional monarchy, formed in 1963 through a

federation of the former British colonies of Malya and Singapore, including the East

Malaysian States of Sabah and Sarawak on the northern coast of Borneo. It

consists of 13 states and 3 federal territories (Kuala Lumpur, Labuan and

Putrajaya). The total area of

Malaysia is 329,847 square

kilometers (127,355 sq mi).

According to the 2000 Census,

the total population of Malaysia

was 23.27 million. Malaysia is a

multi-racial, multi-cultural and

multi-religious country, with

Malay, Chinese and Indian ethnic

groups. In religious terms it is

predominantly Islamic, but with

strong Christian, Buddhist and Hindu communities. The constitution here provides

for a system of privileges favouring the Bhumiputra (Malays and aborigines) which

is reflected in the country’s national development plans.

The system of government in Malaysia is on the patron of Westminster

parliamentary system, a legacy of British colonial rule. Practically the executive

branch of government is more powerful than the legislative wing and the judiciary.

Besides the Parliament at the federal level, each state has an Executive Council

dealing with non-federal matters under a chief minister. The legal system of

Malaysia is predominantly based on English common law, there are also other

secondary legal systems concurrently affecting certain sections of the law, such as

Islamic law and customary law. The Federal Constitution of Malaysia clearly

divides the law-making authority of the Federation into its legislative authority,

judicial authority and executive authority. The federal laws enacted by the federal

assembly or better known as the Parliament of Malaysia applies throughout the

Source: www.sino.net

49

country. Further looking at the necessity of consumer protection in Malaysia; the

Government of Malaysia enacted comprehensive consumer protection legislation,

the Consumer Protection Act, 1999, to strengthen the rights of the consumer.

Prior to this act there were at least 30 statutes pertaining to the sale of

goods and provision of services based on the caveat emptor principle which places

the burden on the consumer not to be cheated in any transaction. These laws are;

the Contracts Act, 1950, the Sale of Goods Act, 1957, the Trade Descriptions Act,

1972, the Moneylenders Act, 1951, the Hire Purchase Act, 1967, the Pawnbrokers

Act, 1972, the Sale of Drugs Act, 1952 and the Control of Cosmetics Regulations

1984, the Electrical Inspectorate Act, 1983 and the Electrical Inspectorate

Regulations, 1984, the Pesticides Act, 1974, the Poisons Act, 1952, the

Radioactive Substances Act, 1968.

The Consumer Protection Act 1999 also includes those areas of consumer

protection, which were not covered in other statutes. The Act comprises 14 parts

and a total of 150 sections. It covers the following areas: misleading and

deceptive conduct, false representations and unfair practices; safety of goods and

services; guarantees in respect of supply of goods; supply of services; rights

against suppliers; strict liability for defective products; a National Consumer

Advisory Council and an alternative redress mechanism in the form of a Tribunal

for Consumer Claims.

Objectives:

The primary objective of this act is to protect the interest of the consumers, and

thereby establishing the Tribunal to provide an alternative forum for consumers to

file claims in an easy, inexpensive and speedy manner. The objectives in

general are:

• To enhance consumer awareness and protection through consumer

training and education and produce related information sources;

• To establish an objective consumer movement;

• To establish product safety standards through clear legislative

provisions;

• To manage consumer complaints efficiently; and

50

• To study current consumer issues to assist in the formation of current

and future consumer policies.

Rights of the Consumer

Malaysia recognises eight rights of the consumers in the definition of

consumer protection and welfare. These are:

1. the right to safety;

2. the right to be informed;

3. the right to choose; and

4. the right to be heard.

5. the right of redress;

6. the right to consumer education;

7. the right to a healthy environment; and

8. the right to basic needs.

The Tribunal for Consumer Claims

The Tribunal For Consumer Claims, Malaysia was established under the

Ministry of Domestic Trade and Consumer Affairs. The Tribunal came into

operations on 15 November 1999. There is only one tribunal at National level

which conducts hearings throughout the country. It is an independent body

established under Section 85, Part XII of the Consumer Protection Act, 1999.

Jurisdiction of the Tribunal for Consumer Claims

The Tribunal has jurisdiction to hear and determine-

(a) any claim in respect of any matter within its jurisdiction provided under

the Act;

(b) where the total amount claimed does not exceed ten thousand ringgit

(RM10,000.00 ) ; and

(c) any other matter prescribed by the Minister by order published in the

gazette.

Redressal Mechanism

51

The government has established a number of institutional mechanisms for

aggrieved consumers to seek redress:

1. The Tribunal for Consumer Claims. This is the most active entity of

the CPA, 1999. The Tribunal receives more than 5,000 claims annually.

2. The Small Claims Court set up in 1987 which restricts claims to a

maximum of RM5,000.

3. The Industry-Initiated Ombudsmen Schemes for Banking and

Insurance for example, the Financial Mediation Bureau.

4. The Tribunal for Homebuyers Disputes.

Type of Claims lodged in the Tribunal

Any consumer may lodge a claim with the Tribunal claiming for any loss suffered

on any matter concerning to their interests as a consumer arising from –

(a) a false or misleading conduct, false representation or unfair practice.

(b) safety of goods and services.

(c) right against a supplier in connection with guarantee.

(d) right against a supplier in connection with any guarantee implied by

the act in relation to services.

(e) right against a manufacturer in connection with any express

guarantee given by the manufacturer.

Procedure of Filing and Registration

The procedures are as follows:

(a) Every claim shall be in Form 1 which can be obtained free from the

Tribunal’s office.

(b) Form 1 must be completed in 4 copies by the claimant and filed in the

nearest office of the Tribunal;

(a) Filing fee for Form 1 is RM5.00 and an official receipt will be issued to

the claimant;

(b) The Secretary or Assistant Secretary to the Tribunal shall cause Form 1

filed with the Tribunal to be registered, dated, signed and sealed with the

52

seal of the Tribunal and shall return two sealed copies to the claimant for

service on the respondent;

(c) A respondent upon receipt of the sealed copy of Form 1 from the

claimant shall, if he disputes the claim, file his defence and counter-

claim (if any) in Form 2 which can be obtained free from the nearest

Tribunal’s office.

(d) Form 2 must be filed in 4 copies at the same Tribunal’s office where

Form 1 was filed within 14 days after the receipt of Form 1 by the

respondent;

(e) Filing fee for Form 2 is RM5.00 and an official receipt will be issued to

the respondent;

(f) Form 2 will be registered, dated, signed and sealed by the Secretary or

Assistant Secretary to the Tribunal and two sealed copies of Form 2 will

be returned to the respondent for service to the claimant.

Settlement/Negotiation

(a) The Tribunal shall, as regards every claim within its jurisdiction, assess

whether, in all the circumstances, it is appropriate for the Tribunal to

assist the parties to negotiate an agreed settlement in relation to the

claim.

(b) In making an assessment the Tribunal shall have regard to any factors

that, in the opinion of the Tribunal, are likely to impair the ability of either

or both of the parties to negotiate an agreed settlement.

(c) Where the parties reach an agreed settlement, the Tribunal shall

approve and record the settlement and the settlement shall then take

effect as if it is an award of the Tribunal.

(d) Where it appears to the Tribunal that it would not be appropriate for it to

assists the parties to negotiate an agreed settlement in relation to the

claim; or

(e) The parties are unable to reach and agreed settlement in relation to the

claim, the Tribunal shall proceed to determine the dispute.

53

Procedure for Hearing

(a) Upon a claim being lodged with the Tribunal, the Secretary or Assistant

Secretary to the Tribunal issue a notice in Form 4 stating the date, place

and time of hearing and thereafter serve the notice of hearing on both the

claimant and the respondent, not less than 14 days before the date of

hearing.

(b) No party shall be represented by an advocate and solicitor during a

hearing before the Tribunal and every party to a hearing shall conduct its

own case at such hearing.

(c) If the claimant is a minor or a person under a disability he may be

represented by his next friend or guardian

(d) Where a respondent is a company or a firm, it may be represented by its

full time paid employee.

(e) The hearing before the Tribunal is presided over by a member of the

Tribunal (known as a “President” during such hearing) sitting alone, who

may at any time assist the parties in conducting their cases.

(f) At the hearing of a claim, every party is entitled to attend and be heard.

(g) All proceedings before the Tribunal are open to the public.

Awards of Tribunal

(a) Tribunal, where practicable, makes its award within sixty days from the

first day the hearing before the Tribunal commences.

(b) At a hearing the Tribunal may make any one or more of the following

awards:

� that a party to the proceedings pay money to any other party;

� that goods be supplied or re-supplied in accordance to the contract to

which the consumer is a party;

� that goods supplied or re-supplied to the consumer be replaced or

repaired;

� that the price or other consideration paid or supplied by the consumer or

any other person be refunded to the consumer or that person;

� that a party comply with the guarantee;

54

� that money be awarded to compensate for any loss or damage suffered by

the claimant;

� that the contract be varied or set aside, wholly or in part;

� that cost (not exceeding RM200.00) to or against any party be paid;

� that interest be paid on any sum or monetary award at a rate not

exceeding eight per centum, per annum, unless it has been otherwise

agreed between the parties; and

� that the claim is dismissed.

Enforcement of Award

(a) Every agreed settlement recorded by the Tribunal and every award made

by the Tribunal is final and binding on all parties to the proceedings.

(b) Every award made by the Tribunal is deemed to be an order of a

Magistrate’s Court and be enforced accordingly by any party to the

proceedings in a Magistrate’s Court having jurisdiction in the place where

the award was made.

Criminal Penalty for Non Compliance of Award

Any person who after fourteen days fails to comply with an award made by

the Tribunal commits an offence and shall on conviction –

� be liable to a fine not exceeding five thousand ringgit or to

imprisonment for a term not exceeding two years or to both;

� in the case of a continuing offence, the offender shall, in addition to the

penalties above, be liable to a fine not exceeding one thousand ringgit

for each day or part of a day during which the offence continues after

conviction.

With the existence of the Tribunal the consumers can utilise the services of

the Tribunal to protect their interest and rights and seek redress against

55

unscrupulous and unethical traders and suppliers of goods. The number of claims

filed by consumers increased over the years. There were 291 claims filed in 2000,

1155 claims in 2001 and 2649 claims in 2002. The Tribunal continues to strive for

greater awareness among the general public about existence and functions of the

Tribunal.

56

Nepal Introduction:

Nepal is a landlocked country in South Asia and is the world's youngest

republic. On May 28, 2008, Nepal legally abolished the monarchy and declared the

country a republic, ending 239 years of royal rule. With an area of 147,181 square

kilometers, it is trapezoidal in

shape. The landscape of

Nepal is very diversified, it

has three main geographical

regions including the Terai

region, the Hill region and the

Mountain region. According to

2001 Census the population

of Nepal was 22,736,934. The

society of Nepal exhibits a

multi-lingual, religious and

ethnic characteristics. Nepal had been a monarchy throughout most of its history. A decade-long

civil war by the Communist Party of Nepal (Maoist) along with several weeks of

mass protests by all major political parties of Nepal in 2006, put an end to the

monarchy system. In April, 2008, the Communist Party of Nepal (Maoist) won the

largest number of seats in the Constituent Assembly election and formed a

coalition government. Presently, Nepal has no permanent Constitution. However

the country is governed by an Interim Constitution that came to effect from January

15, 2007 and as regards the consumer protection scenario is concerned the

Consumer Protection Act, 1998 is the main Act dealing with consumer protection

issues. The Act has a total of 30 sections. It establishes the Consumer Protection

Council. Amongst the functions, duties and powers of the Council include advising

the government on matters relating to the protection of the rights and interests of

consumers, prices, quality and purity of consumer goods and services,

disseminating information, conducting studies, and advising the government on

Source: www. lonelyplanet.com

57

policies relating to the protection of the rights and interests of consumers. The Act

also regulates the powers given to Inspection Officers to inspect, investigate or

search any place where there are reasonable grounds to believe that consumer

goods or services which are not safe, efficacious or of the prescribed standard are

being produced, sold or supplied.

Objectives of the Nepal Consumer Protection Act, 1998

1. To make provisions for protecting consumers from irregularities concerning

the quality, quantity and prices of consumer goods or services,

2. Ensuring that no one lowers or removes the attributes or usefulness of

consumer goods or services,

3. Preventing circumstances in which monopolies and unfair trading practices

may lead to an increase in prices, as well as false and misleading

propaganda about the use and usefulness of consumer goods or services,

4. Selling, supplying, importing, exporting and storing safe and quality

consumer goods or services,

5. Protecting the rights and interests of consumers through the establishment

of an agency for redressing the hardships of consumers,

6. Maintaining the health, convenience and economic welfare of consumers,

now therefore, the Parliament has enacted this law in the 26th year of the

reign of the King, Birendra Bir Bikram Shah Dev.

Consumer Rights

For the purpose of protecting the rights and interests of consumers, every

consumer has the following rights:

1. right to be protected from the sale and supply of consumer goods and

services which may harm life, body, health and property.

2. right to be informed about the prices, attributes, quantity, purity, quality,

etc. of consumer goods and services so as to be safe from unfair trading

practices.

3. right to be assured of an opportunity to select consumer goods and

services at competitive prices as far as possible.

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4. right to be assured that an appropriate agency will hear matters

concerning the protection of the rights and interests of consumers.

5. right to be heard and compensated against exploitation and hardships

resulting from unfair trading practices.

6. right to consumer education.

Functions, Duties and Powers of Consumer Protection Council:

A Consumer Protection Council has been formed in order to formulate

policies relating to the protection of the rights and interests of consumers, and offer

suggestions to Government on matters concerning the rights and interests of

consumers. The functions, duties and powers of the Council are as follows:

(i) To offer suggestions to the Government on matters relating to the

protection of the rights and interests of consumers, the supply system,

and prices, quality and purity of consumer goods and services.

(ii) To disseminate information relating to the rights and interests of

consumers in order to inform them about the standard of goods and

services so as to protect them in matters concerning consumer goods

and services.

(iii) To inform consumers about the prices, quality, quantity and purity of

consumer goods and services, as well as about unfair trading practices

concerning them, or make arrangements for doing so.

(iv) To conduct studies in connection with the protection of the rights and

interests of consumers, or make arrangements for doing so.

(v) To offer suggestions to the Government on changing the existing

policies or framing new policies relating to the protection of the rights

and interests of consumers.

(vi) To maintain updated national and international information relating

to the protection of the rights and interests of consumers, and

make arrangements for doing so.

(vii) To monitor the rights of consumers, or make arrangements for doing

so, and offer suggestions to the Government to rectify the

shortcomings noticed in the course of such monitoring.

59

(viii) To discharge the functions prescribed by Government, or make

arrangements for doing so.

(ix) To discharge such other functions as are deemed appropriate for the

protection of the rights and interests of consumers, or make

arrangements for doing so.

Redressal Mechanism:

In case any consumer suffers a loss or damage of any kind as a result of

the sale of any consumer good or service in a manner opposed to this act, such

consumer, or any Consumer Association on his behalf, may file a complaint

with the Compensation Committee within 35 days from the date of such loss or

damage, requesting for the realization of compensation from the person who has

sold or supplied such consumer good or service. Claims for Compensation are

made to the Compensation Committee.

Compensation Committee:

Compensation Committees are formed in each district in order to conduct

investigations into complaints filed under Section 22 and realize compensation in

consideration of losses or damages suffered by consumers. The compensation

committee consist of:

(a) Chief District Officer : Chairman

(b) District Government Advocate : Member

(c) District Medical Officer : Member

(d) A representative of the District Consumers Association designated by

His Majesty’s Government : Member

(e) Representative, District Chamber of Commerce and Industry : Member

(f) An officer designated by Government : Member Secretary

(2) The Compensation Committee takes decision on complaints filed in connection

with compensation within the prescribed time-limit.

Provisions for Investigation/Inspection of Spurious/Defective

Goods/Services:

60

If any person is engaging in any unfair trading activity in such a manner as to

adversely affect the rights and interests of consumers, or affecting the price and

the supply system of consumer goods or services by exercising a monopoly or

through any other means, or producing or selling sub-standard goods, or taking

any action which is contrary to this act or the rules framed hereunder, the

Government may conduct necessary investigations and inspections, or make

arrangements for doing so. It can take necessary action according to current laws

against any producer, dealer, agent, vendor, individual or institution found guilty

through investigations and inspections conducted under Sub-Section (1). For

inspection purpose Government can appoint Inspection Officers or designate any

officer-employees to work in that capacity in the prescribed manner in order to

monitor the supply of quality consumer goods or services to consumers in a simple

manner and at fair prices by making the market and supply systems effective.

Penalties:

Any person who takes or instigates others to take any of the following actions is

punished as follows, depending on the degree of his offense:

(a) Any person who takes or instigates others to take any action in violation of

Section 7 shall be punished with imprisonment for a term not exceeding

three years, or with a fine not exceeding Rs 50,000, or with both.

(b) Any person who takes or instigates others to take any action in violation of

Clause (a) of Sub-Section (1) of Section 9 shall be punished with

imprisonment for a term not exceeding two years, or with a fine not

exceeding Rs 30,000 or with both.

(c) Any person who takes or instigates others to take any action in violation of

Clause (a) of Section 10 shall be punished with imprisonment for a term

not exceeding three years, or with a fine not exceeding Rs 50,000, or with

both.

(d) Any person who takes or instigates others to take any action in violation of

Clauses (b), (c) and (d) of Section 10 shall be punished with imprisonment

61

for a term not exceeding five years, or with a fine not exceeding Rs

100,000, or with both.

(e) Any person who takes or instigates others to take any action in violation

of Clause (e) of Section 10 shall be punished as follows:

(1) If there is a threat to life, for a term not exceeding 14 years, or with a

fine not exceeding Rs 500,000, or with both.

(2) In case the strength of any organ of the body is likely to be reduced

or lost, with imprisonment for a term not exceeding 10 years, or with

a fine not exceeding Rs 500,000, or with both.

(3) In other circumstances, with imprisonment for a term not exceeding

5 years, or with a fine not exceeding Rs 300,000, or with both.

(f) Any person who takes or instigates others to take any action, other than

those mentioned above, which violates this act or the rules framed under

this act shall be punished with imprisonment for a term not exceeding two

years, or with a fine not exceeding Rs 200,000, or with both.

Realization of Compensation:

In case the Compensation Committee holds that any consumer has suffered a loss

or damage following investigations into a complaint filed for compensation under

Section 22, it shall arrange for the payment of compensation on the basis of such

loss or damage to the concerned consumer or his heir.

Appeal:

Any person who is dissatisfied with the decision taken by the Compensation

Committee under Section 24 may file an appeal with the concerned Appellate

Court within 35 days from the date of such decision.

Prohibition to Influence Demand, Supply or Price

62

No one shall influence the demand, supply and price of any consumer good or

service by taking any of the following actions in collusion with others:

(a) By fixing the quota of raw materials needed for any consumer good, or

reducing the production of any consumer good, or taking any other similar

actions.

(b) By hoarding any consumer good or service or otherwise creating an

artificial shortage, or selling and supplying such good or service at specified

times or places only, or taking any other similar actions.

Power to Systematize and Control Supply of Consumer Goods

and Services:

(1) For the purpose of protecting the rights and interests of consumers, the

Government can exercise the following powers in order to systematize, control and

regulate the supply of consumer goods and services:

(a) To formulate policies relating to the quality, price and the supply system

of consumer goods or services.

(b) To formulate action plans in connection with the monitoring, prevention

and control of unfair trading practices and monopolies which are likely to

harm the rights and interests of consumers, and implement such plans.

(c) To analyze and review the situation in respect to the demand and supply

of consumer goods consumed within the country.

(d) To make necessary arrangements for checking any undesirable

increase in prices by producers, vendors or distributors of

consumer goods.

(e) To discourage unfair trading practices which are likely to create

shortages through artificial or other improper means.

(2) The Government can make necessary arrangements in order to effectively

implement the provisions concerning the protection of the rights and interests

63

of consumers, regulation of the supply system, and control of the prices and

quality of consumer goods and services.

Particulars to be Mentioned in Consumer Goods:

A producer must mention the following particulars on the labels of consumer goods

on a mandatory basis:

(a) Name and address of the producer, and registration number of the

industry.

(b) In the case of consumer goods such as food and medicines, their

ingredients as well as their quantity and weight.

(c) Quality of consumer goods whose quality has been determined, if any.

(d) Method of consuming consumer goods and possible impact of such

consumption.

(e) Price, batch number, production date and expiry date of the consumer

goods.

(f) In the case of consumer goods such as electronic goods,

hardware and machinery, guarantee thereof, date of guarantee,

and other necessary matters.

(g) In the case of consumer goods which are inflammable, dangerous

or fragile, precautions for their safety.

(h) Other particulars as prescribed.

Actions Which Must not be Taken in Respect to Consumer

Goods or Services

No one can take or instigate others to take any of the following actions in respect

to any consumer good or service:

(a) To produce, sell, supply, export or import a sub-standard consumer

good.

64

(b) To imitate any consumer good in such a manner as to mislead

consumers.

(c) To sell or supply any consumer good or service by making false or

misleading claim that it is another consumer good or service, or by

describing a sub-standard consumer good or service as of high standard.

(d) To engage in unfair trading practices in such a manner as to make false

or misleading publicity or advertisements relating to the use, usefulness,

or efficacy of any consumer good or service.

(e) To produce, sell or supply any consumer good or service which is likely

to harm consumers’ health.

(f) To take such other actions as are prescribed.

Standard of Consumer Goods or Services:

(1) In case the limits of the quality or quantity of any ingredient to be used in

any consumer good or service have been determined, the Government

determines the standard of such good or service according to the

prescribed procedures.

(2) The Government can publish a notice of the determination of the

standard of any good and service under Sub-Section (1) in the Nepal

Rajapatra.

Price Lists to be Kept:

According to this Act every vendor must keep at a conspicuous place of his shop a

price-list of every consumer good sold and supplied by him, explicitly mentioning its

wholesale and retail prices.

Powers of Inspection Officers to Inspect, Investigate or Search:

(1) In case there are reasonable grounds to believe that any consumer

good or service which is not safe, efficacious or of (the prescribed)

65

standard is being produced, sold or supplied, or that any action is being

taken in violation of this act or the rules framed hereunder, at any place,

the Inspection Officer may inspect, investigate or search such place.

(2) In case it is found in the course of an inspection, investigation or search

conducted under Sub-Section (1) that any good or service which is not

safe, efficacious or of the (prescribed) standard is being produced, sold

or supplied, or that actions are being taken in violation of this act or the

rules framed hereunder, the Inspection Officer shall take a sample of

such good (or service) in the prescribed manner and impose a ban on

the production and sale or supply of such good or service for a

prescribed period.

(3) Reports of actions taken by Inspection Officers under Sub-Section (2)

must be submitted to Government within three days.

(4) The working procedures to be adopted by Inspection Officers while

conducting inspections, investigations, or searches are prescribed in

the law.

(5) The other functions, duties and powers of Inspection Officers, and

provisions concerning the implementation of the reports submitted by

them, are prescribed in the law.

Testing of Consumer Goods:

Samples of consumer goods taken by an Inspection Officer under Section 15 shall

be sent to the laboratory for a test within the prescribed time-limit.

Sub-Standard Consumer Goods to be Seized:

In case any consumer good is held to be of sub-standard following the test of its

sample at the laboratory where it is sent under Section 16, it is seized.

Government to be the Plaintiff (Claiment)

66

Government is the plaintiff in cases under this act.

Investigation and Filing of Lawsuits:

(1) Lawsuits relating to offenses punishable under this act shall be

investigated by Inspection Officers. Lawsuits must be filed with the

concerned District Court within 35 days from the date of completion of

such investigations.

(2) While investigating and filing lawsuits under Sub-Section (1), an

Inspection Officer may seek the opinion of the government lawyer, and

such cases can be defended by the government lawyer.

Summary Trial Procedure to be Adopted:

The procedure mentioned in the 1972 Summary Trial Procedure Act can be

adopted while taking action on and disposing of lawsuits filed under this act.

Power to Initiate Lawsuits under Current Laws:

In case any action which is an offense under this act is also an offense under any

other current Nepal Law, this act shall not be deemed to have prejudiced the right

to initiate lawsuits under the other act.

Power to Form Sub-Committees:

The Government or the Council may form necessary Sub-Committees in order to

fulfill the objectives of this act. The functions, duties, powers and working

procedures of a Sub-Committee formed under Sub-Section (1) are prescribed by

Government or the Council.

Delegation of Powers:

67

The Government or the Council may delegate some of the powers vested in it

under this act to any Sub-Committee formed under Section 27, or to any officer-

employee, according to need.

Immunity for Actions Taken With Bonafide Motives:

Inspection Officers, Compensation Committees or employees of the Government

are not to be held personally liable for any action taken by them with good

intentions in the course of fulfilling their duties under this act or the rules framed

hereunder.

Power to Frame Rules:

Government frames necessary rules in order to implement the objectives of this

act.

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New Zealand

Introduction:

New Zealand is an island country, lying in the Southern Hemisphere,

between 34 and 46 degrees of latitude south in the Pacific Ocean. It comprises of

two main landmasses (the North

Island and the South Island), and

numerous smaller islands, most

notably Stewart Island/Rakiura and

the Chatham Islands. The total

land area is 270,535 sq Km /

104,453 sq miles. New Zealand

has a population of around 4.3

million, of which approximately

78% identify with European ethnic

groups, while the indigenous Maori

make up about 10%.

New Zealand has multi party democracy and constitutional monarchy with

one legislative house - the House of Representatives, consisting of 120 members.

The head of state is the British Monarch, Queen Elizabeth, represented by the

Governor-General and the head of government is the Prime Minister. As a former

British colony, the New Zealand legal system is heavily based on the English legal

system, but the primary sources of New Zealand law are statutes enacted by the

New Zealand Parliament and decisions of the New Zealand Courts. As far as laws

relating to Consumer Protection in New Zealand are concerned, there are some

distinct laws which deal with the same. These are: the Consumer Guarantees

Act 1993, the Fair Trading Act 1986, the Law by Sales Act 1971 and the Hire

Purchase Act 1971.

The Fair Trading Act came into force on 1 July 1990. The Act deals with

certain conduct and practices in trade, provides for the disclosure of consumer

information relating to the supply of goods and services and product safety. The

Consumer Guarantees Act came into force on 1 April 1994. It deals

Source: www.maps-pacific.com

69

comprehensively with and provides for fixed guarantees for goods and services in

trade. It sets out the rights of consumers and the responsibilities of those who

serve them. Its coverage extends from retailers to professionals such as bankers

and doctors, and includes everything that might ordinarily be purchased for

personal, domestic or household use.

Consumer Rights:

Under the New Zealand’s Consumer Guarantees Act, consumer rights are

expressed as a series of "guarantees" that a seller automatically makes to the

consumers when they buy any good or service ordinarily purchased for personal

use. These are:

1. rights and remedies for faulty goods

2. rights and remedies for service failures

3. rights and remedies for consequential loss

Rights for faulty goods:

Whenever consumer buys a product, be it a chocolate bar, microwave oven or a

car, the seller guarantees that:

• It has the right to sell the product.

• The product is not security for a loan and cannot be repossessed in relation

to someone else's loan - unless consumers are told otherwise in writing.

• The product is of an "acceptable quality". It must be fit for all purposes it

might commonly be used for, have an acceptable appearance and be safe

and durable. For example, if it is a chair, it must take your weight.

• It also has to be free of minor defects, unless the consumers are told about

these first.

• The product must do what the seller says it will. If one is told a watch is fit

for diving and then finding it lets in water, the retailer is in breach of the Act,

because the watch is not fit for its purpose.

• The product is the same as any demonstration model, sample, or

description of it. Mail-order goods must match their photographs in the

catalogue.

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• If no price has been agreed, consumers need to pay only what is

reasonable. Reasonable is a price about the same that other traders would

charge for the goods.

Manufacturers - and local importers and distributors guarantee to

the consumer that:

• Spare parts and repair facilities will be available. They can, however, avoid

this if they let consumers know before buying that parts may be limited or

not available.

• Their own guarantees will be honoured.

Rights for service failures:

Whenever consumers buy any service, such as going to the bank, taking a bus

ride or visiting the doctor, the seller guarantees that:

• The service will be carried out with reasonable care and skill. For example,

a garage must do the job properly. They should not cause any damage in

the process, such as scratch the bonnet of the car.

• The service will be fit for the purpose - it will provide what the customer

wants. If one buy concert tickets with "a clear view of the stage", he/she can

not be stuck behind a pillar.

• Where no time has been agreed as to when the service is to be completed,

the service must be completed within a reasonable time. For example,

painters can not use the weather as an excuse if they do not turn up on fine

days.

• If no price, or hourly rate or other charging system has been agreed for the

service, consumers need to pay only what is reasonable. Reasonable is a

price about the same that other traders would charge for the service.

Rights for consequential loss:

Consequential loss is a loss (normally one that costs consumer

money) that consumer suffers as a result (consequence) of something going

wrong with the goods he/she has bought or a service received. The

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Consumer Guarantees Act allows consumer to claim compensation for

consequential loss from a trader, e.g. as a result of a faulty bathroom pipes repair,

a plumber floods your home damaging hallway carpet. A service provider will be

responsible for the cost of cleaning the carpet or meeting the replacement cost, if

the damage is more severe.

Redressal Mechanisms:

If any consumer has a problem with something he/she has bought (either

goods or services), Consumer Guarantees Act offers different steps for redressing

their grievances. In the first step consumer has to go to the person selling the

goods or providing the service and complain. Next step in the redressal process is

to visit the trader to discuss the complaint. If these steps do not resolve the

problem consumer may consider taking the complaint to one of the following:

Trader Organizations:

In New Zealand most of the traders belong to specific organizations for their

industry. Some have complaints' handling schemes that can be used to resolve a

complaint. Consumer can file their complaint to the relevant organizations. There is

often either no charge or a small fee to use these services.

Disputes Tribunals:

The tribunal can hear claims to do with a breach of contract, Consumer

Guarantees Act, the Fair Trading Act, the Motor Vehicle Disputes Tribunal can

hear claims about defective used vehicles bought from licensed dealers.

Using the media:

This is considered as the last resort unless the matter can not be heard by

the Disputes Tribunal and consumer has done all he can to resolve the dispute.

Remedies Under the New Zealand’s Consumer Guarantees Act:

From Retailer’s:

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If something goes wrong, consumer has the right to insist that the seller

fixes things. According to this act, the retailer who sold the goods or services must

sort out the problem. If the stitching comes apart on fairly new shoes, consumers

don’t have to track down the manufacturer or importer, they can simply take them

back to the shop. If retailer tells the customer that the shoes were never much

good, it is their problem to approach the manufacturer not the consumer.

However, if the consumers have trouble with the seller, they also have the

right to get the shoes fixed elsewhere and claim the cost from the seller. But before

doing this, one should try to sort things out with the initial seller. If nothing gets

right it is better to inform the seller, preferably in writing, what one is going to do,

and keep the written records.

If the problem can not be fixed, or can not be put right within a

reasonable time, or is substantial, the consumer can:

• Reject the product or cancel the service contract and claim a full

refund or replacement. Sellers cannot offer a credit note only. If the

consumer wants cash back, he/she is entitled to it.

� Alternatively, consumers may claim compensation for any drop in the

value of the product or service, or claim for any reasonably

foreseeable extra loss that results from the initial problem.

From Manufacturers:

• Consumer can complain to the manufacturer if there is a problem with

quality, match or description, repairs and spare parts, or goods not

complying with guarantee.

• Complaining to the manufacturer is useful when, for example, the retailer

has gone out of business or is proving hopeless to deal with. But in most

cases it should be easier to insist on consumer rights directly with the

retailer, and get them to take up the problem with the manufacturer.

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• If a product has parts made by different manufacturers, consumers can

claim against any or all of them. In practice, however, the best thing would

be to contact the one whose name is on the product.

Other important points:

This Act does cover goods sold in secondhand shops and sales. The

Act only applies to sellers "in trade". This means it does not cover private sales or

goods sold by auction or tender.

The Act applies to gifts. If consumers are given something, they have the

same rights as if they have bought it themselves and can seek redress directly for

any problem.

The Act uses words like "reasonable" and "acceptable". These terms

are deliberately open-ended. Ultimately, a tribunal referee or a judge may have to

decide what is reasonable or acceptable in the circumstances.

Sellers can not "contract out" of the Act. This means if they put up a sign

saying "No refunds or exchanges", it is meaningless. Consumer still have full rights

under the Act. It also means guarantees and warranties can not state "No

consequential losses are covered", because attempts to contract out of the

Consumer Guarantees Act may mislead consumers about their rights. The

Commerce Commission may use the Fair Trading Act, 1986 to prosecute traders

who attempt to contract out of the Consumer Guarantees Act.

Taking it further:

If, for whatever reason, consumers can not get satisfaction on a

complaint, they have several options:

• Approaching to the Disputes Tribunal for cases up to $7,500, or $12,000 if

both parties agree.

• Going to any complaints service offered by an industry body.

• Approaching the court.

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Source: www. lonelyplanet.com

Pakistan

Introduction:

The Islamic republic of Pakistan is a country located in South Asia and lies

between 23-35 to 37- 05 north latitude and 60-50 to 77- 50 east longitude touching

the Hindukush Mountains in the north and extending from the Pamirs to the

Arabian Sea. Pakistan covers an

area of 796,095 sq.km. And has a

wide variety of landscapes, from

arid deserts to lush, green valleys

to stark mountain peaks..

According to 1998 Census,

Pakistan, is the sixth most

populous country in the world with

a total population of 132.35 million.

Since its independence,

Pakistan declared itself as a semi-presidential federal democratic republic on 14th

August 1947, however, many a times the Constitution as well as the Parliament of

Pakistan were suspended by their military establishment. In general, the legal

system of Pakistan is based on English Common Law but after independence the

country developed its own legal frame work on the basis of the fundamentals of the

Islamic values and injunctions of Quran. The National Assembly is basically the

law making body in Pakistan but law contrary to the injuction of the Quran or

Sunna cannot sustain in the legal structure. Pakistan is divided into four provinces:

Sindh, Punjab, North West Frontier Province and Balochistan. These provinces

and the federally administered areas have their own political and administrative

institutions

In order to protect consumer rights, in 1995 the Federal Government of

Pakistan promulgated Islamabad Consumers Protection Act, which extends

only to the Islamabad Capital Territory. The other laws applicable to the

different provinces are:

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1. NWFP Council, 1997

2. Balochistan, Consumers Protection Bill, 2003

3. Punjab Consumer Protection Act (Punjab CPC), 2005

4. Sindh Consumer Rights Council (CRC), 2005

Islamabad Consumers Protection Act, 1995:

The Islamabad Consumers Protection Act, 1995 took immediate effect upon

its enactment and extends only to the Islamabad Capital Territory. The Act

provides for the promotion and protection of the interests of consumers. The Act

has twelve sections. The Act establishes the Islamabad Consumers Protection

Council.

Objectives:

The objectives of the Islamabad Consumer Protection Act can be broadly divided

into two categories:

1. To determine, promote and protect the rights of consumers and

2. To formulate polices for the fair and honest trade practices by

manufacturers, producers and suppliers of goods and services.

Consumer Rights:

Section 5 provides for consumer rights as follows:

1. the right of protection against marketing of goods which are hazardous to

life and property;

2. the right to information about the quality, quantity, potency, purity, standard

and price of goods and services;

3. the right of access to a variety of goods at competitive prices;

4. the right for redressal against unfair trade practices or unscrupulous

exploitation of consumers;

5. and the right of consumers’ education.

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Types of conduct:

Section 2 (f) of the Act defines thirteen types of conduct, which would be

considered as unfair trade practices.

“Unfair trade practice” means a trade practice which, for the purpose of sale, use

or supply of any goods or for provision of any service or for their promotion, causes

loss or injury to the consumer of such goods or services, whether monitory or

otherwise, or in furtherance of such sale, use or supply makes any statement,

whether orally or in writing, or by chalking on walls or through sign-board or neon-

signs or by distributing pamphlets or by publication in any manner, including

through electronic media, by -

(i) falsely representing that the goods or, as the case may be, services are

of a particular standard, quality, quantity, grade, composition, style or

mode;

(ii) falsely representing any rebuilt, second-hand, renovated, reconditioned

or old goods as new goods;

(iii) falsely representing that the goods or, as the case may be, services

have sponsorship or approval of the competent agency or authority or

possesses specified characteristics, performance, accessories, uses or

benefits which such goods or services do not have;

(iv) falsely representing that the goods or services offered fulfill the

prescribed standard fixed by local or international authorities;

(v) giving misleading representation of the need for, or the usefulness of,

any goods or services;

(vi) falsely giving to the public any warranty or guarantee of the

performance, specification, required ingredients, efficacy or length of

life of a product or any goods that is not based on an adequate or

proper tests thereof;

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(vii) falsely offering for sale or on lease any premises, house, shop or

building with specified facilities or with the promise to deliver

possession thereof within a specified period or without any escalation in

price or by falsely representing that such premises, house, shop or

building is being sold, built or constructed in accordance with the

approved plans, specification and approval of the concerned

authorities;

(viii) misleading the public concerning the price at which a product or

products or goods or services have been, or are ordinarily sold or

provided;

(ix) giving false or misleading facts regarding facilities available in the

private educational institutions or falsely representing that such

institutions have proper approval of the concerned authorities;

(x) falsely representing for provision of services by professionals and

experts, including by doctors, engineers, advocates, mechanics,

teachers, hakeems and spiritual healers;

(xi) giving false or misleading facts disparaging the goods, services or trade

of another person, firm, company or business concern;

(xii) advertising for the sale or supply at a bargain price of goods or services

which are not intended to be offered for sale or supply at such price;

and

(xiii) offering of gifts, prizes or other items with the intention of not providing

them as offered or creating the impression that something is being

given or offered free of charge when it is fully or partly covered by the

amount charged in the transaction.

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Consumer Protection Council:

After the commencement of this Act, the Federal Government by notification

in the official Gazette, established the Islamabad Consumers Protection Council.

The Council consist of the following:-

(i) The Chairman, to be nominated by the Prime Minister from amongst

prominent social workers;

(ii) One Senator and the Member National Assembly elected from

Islamabad Capital Territory, to be nominated by the Federal

Government; ..Member

(iii) Chief Commissioner, Islamabad Capital Territory, Islamabad; ..Member

(iv) Chairman, Capital Development Authority; ..Member

(v) a representative of the Cabinet Division who shall not be below the rank

of Joint Secretary; ..Member

(vi) a representative of the Ministry of Interior who shall not be below the

rank of Joint Secretary; ..Member

(vii) a representative of the Ministry of Law, Justice and Parliamentary

Affairs, who shall not be below the rank of Joint Secretary; ..Member

(viii) a representative of the Finance Division who shall not be below the

rank of Joint Secretary; ..Member

(ix) a representative of the Ministry of Health who shall not be below the

rank of Joint Secretary; ..Member

(x) a representative of the Food, Agriculture and Livestock Division who

shall not be below the rank of Joint Secretary; ..Member

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(xi) a representative of the Ministry of Industries and Production who shall

not be below the rank of Joint Secretary; ..Member

(xii) a representative of the Ministry of Women Affairs who shall not be

below the rank of Joint Secretary. ..Member

Functions of the Council:

1. The function of the Council is to determine, promote and protect rights of

consumers.

2. The Council is responsible for formulation of the policies for promotion and

protection of the rights of consumers, fair and honest trade practices by the

manufacturers, producers and suppliers of goods and services in relation to

interest of consumers and their effective implementation.

3. For promotion and protection of the interests of consumers, the Council acts

as a coordinate body between the Government, manufacturers, producers,

suppliers and consumers.

Redressal Mechanism:

(1). The Authority formed by the Islamabad Consumer Protection Council, is

responsible for receiving the complaints of consumers and those made on

behalf of the Council, their investigation and determination. The Police, Capital

Development Authority and other agencies of the Federal Government and

Islamabad Capital Territory Administration Act in aid of the Authority for

Performance of the functions under this Act.

(2). Under the Consumer Protection Act of Punjab Province, consumer courts

and councils are established at divisional level and district DCOs are also

authorized to hear public complaints, impose fine upon recalcitrant

manufacturers or refer their cases to consumer court/council. In addition to

action on public complaints, CPC can also act suo motu.

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(3). In Sindh Province, Government has set up a 15-member Consumer Rights

Council (CRC) in September 2005, with a jurisdiction restricted to Karachi city

only. However, the government has not been able to adopt a formal law so far

and establish the necessary infrastructure and consumer courts across the

length and breadth of the province.

(4). The NWFP Assembly adopted a Consumers Protection Bill in 1997, which

was amended in 2005. This law provides for the setting up of a provincial

council for protection of consumers rights. However, the provincial government

has not enforced this bill so far.

(5). The Consumers Protection Bill of Balochistan was adopted by the

Provincial Assembly on October 30, 2003. A provincial council for protecting

consumer rights has been constituted under this law, however district councils

are yet to be formed. The law empowers judicial magistrates to hear consumer

complaints instead of establishing special consumer courts,

Procedure for disposal of the complaints of the consumers:

(1). A complainant may in respect of any goods sold or delivered or any service

provided or supplied or against any unfair trade practice, may file a complaint

with the Authority.

(2). The Council may, in the case of any unfair trade practice coming to its notice,

directly make complaint to the Authority through an officer authorised by it.

(3). Where on examination of the complaint received under sub-section (1) or sub-

section (2), the Authority is of the opinion that any right of the consumer has

been infringed, he can cause the notice of the complaint to be served on the

respondent who is be required to give his reply within a period of seven

days.

(4). After considering the complaint and the reply of the respondent and after

providing the parties an opportunity of being heard, or if no reply is received

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and after such enquiry as the Authority may deem appropriate, he may pass

such orders as the circumstances may require.

Penalties:

(1). Where any right of consumer is in any way infringed, the person responsible

for such infringement, notwithstanding any other civil or criminal liability under any

other law for the time being in force of such person, shall be punished with

imprisonment which may extend to two years, or with fine, or with both.

(2). Whoever makes advertisement through print or electronic media or by chalking

on walls or in any other manner in contravention of section 7, he shall be punished

with imprisonment which may extend to two years, or with fine, or with both.

(3). The Authority may, where it deems appropriate, order for payment of

compensation to the consumer to the extent the consumer has suffered any

damage or loss through any unfair trade practice.

(4). The Authority may, where it deems necessary for protection of the right of

other consumers, order for confiscation of any goods or material or direct for

their destruction.

Appeal:

An appeal against the order of Authority shall lie to the High Court and the

provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in respect of

appeals to the High Courts shall, mutatis mutandis, apply.

Immunity of the Council:

No suit, prosecution and other legal proceedings shall lie against the

Council, its members, the Authority and other officers and authorities acting under

the directions of the Council or, as the case may be, the Authority in respect of

anything done under the provisions of this Act or any rules or orders made there

under.

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Philippines

Introduction:

Philippines ia an island nation located in the Malay archipelago in Southeast

Asia. It has 7,107 islands, collectively known as Philippine Archipelago, with a total

area of nearly 300,000 square

kilometers. Presently Philippines

is officially known as the

Republic of the Philippines. It

is 12th most populous country in

the world, with a population of

about 90 million people.

Philippines was a former

colony of Spain and the United

States, and it was only in 1946

that it got independence after the

World War II. Philippines is one of the most diverse countries in the world with

multiple ethnicities and cultures throughout the islands. It has a presidential-unitary

republic system, where the President functions as both head of state, and head of

government, and is commander-in-chief of the armed forces. In Philippines, the

Constitution is the fundamental law of the land and Legislative power is vested in

the Congress of the Philippines, consisting of the Senate and the House of

Representatives.

With regard to consumer protection and safeguarding the interest of

consumers in Philippines, it was in July 1992, the Philippines Congress duly

enacted The Consumer Act of the Philippines. It provides for consumer product

safety and quality; food, drugs, cosmetics and devices; deceptive, unfair and

unconscionable sales acts and promises; weights and measures; consumer

product services and warranties; price tagging; labeling and packaging; liability for

products and services; consumer credit transactions; advertising and sales

promotions; repair and service firms and consumer complaints handling.

Source: www. lonelyplanet.com

83

Objectives of the Consumer Act of the Philippines:

According to this Act it is the responsibility of the State to protect the interest

of the consumers, promote their general welfare and to establish standards of

conduct for business and industry. The objectives briefly are:

a) protection against hazards to health and safety;

b) protection against deceptive, unfair and unconscionable sales acts and

practices;

c) provision of information and education to facilitate sound choice and

the proper exercise of rights by the consumer;

d) provision of adequate rights and means of redress; and

e) involvement of consumer representatives in the formulation of social

and economic policies.

Implementing Agencies:

Different departments cater to the grievances of consumers with respect to

different products and services. These departments are namely:

a) The Department of Health with respect to food, drugs, cosmetics,

devices and substances.

b) The Department of Agriculture with respect to products related to

agriculture, and;

c) The Department of Trade and Industry with respect to other

consumer products not specified above.

Redressal Mechanism:

The concerned department establishes consumer product quality and

safety standards which consist of one or more of the following:

a) requirements as to performance, composition, contents, design,

construction, finish, packaging of a consumer product;

b) requirements as to kind, class, grade, dimensions, weights, material;

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c) requirements as to the methods of sampling, tests and codes used to

check the quality of the product;

d) requirements as to precautions in storage, transporting and packaging;

e) requirements that a consumer product be marked with or accompanied

by clear and adequate safety warnings or instructions, or requirements

respecting the form of warnings or instructions.

For this purpose, the concerned department adopts existing government

domestic product quality and safety standards: provided, that in the absence of

such standards, the concerned department forms specialized technical

committees composed of equal number of representatives from each of the

Government, business and consumer sectors to formulate, develop and propose

consumer product quality and safety standards. The said technical committees

consults with the private sector, which may, motu proprio, develop its own quality

and safety standards that is subject to review and approval of the concerned

government agency or agencies after public hearings have been conducted for

that purpose; and would also consider existing international standards

recognized by the Philippine Government.

Penalties:

Under this Act different set of penalties are applicable to different sectors and

services:

Injurious, Dangerous and Unsafe Products:

Any person who violates any provision of this act upon conviction, is

subjected to a fine of not less than One thousand pesos (P1,000.00) but not

more than Ten thousand pesos (P10, 000.00) or imprisonment of not less

than two months but not more than one year, or both upon the discretion of the

court, if the offender is an alien, he must be deported after service of sentence and

payment of fine, without further deportation proceedings.

85

Food, Drugs, Cosmetics and Devices:

Any person who violates any of the provisions of Article 40 , upon

conviction, is subjected to imprisonment of not less than one (1) year but not

more than five (5) years, or a fine of not less than Five thousand pesos

(P5,000.00) but not more than Ten thousand pesos (P10,000.00), or both such

imprisonment and fine, in the discretion of the Court. If the offense be committed

by a juridical person, the Chairman of the Board of Directors, the President,

General Manager, or the partners and / or the persons directly responsible

therefore are penalized.

Hazardous Substance:

Any person who violates any of the provisions of Article 46, upon

conviction, is subject to a fine of not less than One thousand pesos (P1,000.00)

or an imprisonment of not less than six (6) months but not more than five (5)

years or both upon the discretion of the court.

Deceptive, Unfair and Unconscionable Sales Acts or Practices:

Any person who violates the provisions of Title III, Chapter I, upon

conviction is subjected to a fine of not less than Five Hundred Pesos (P500.00)

but not more than Ten Thousand Pesos (P10,000.00) or imprisonment of not

less than five (5) months but not more than one (1) year or both, upon the

discretion of the court.

Consumer Product and Service Warranties:

Any person who violates the provisions of Article 67 is subjected to fine of

not less than Five hundred pesos (P500.00) but not more than Five thousand

pesos (P5,000.00) or an imprisonment of not less than three (3) months but

not more than two (2) years or both upon the discretion of the court. A second

conviction under this paragraph also carries with it the penalty or revocation of

his business permit and license.

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Labeling and Fair Packaging:

Any person who violates the provisions of Title III, Chapter IV of this Act, or

its implementing rules and regulations, except Article 81 to 83 of the same

Chapter, is subjected to a fine of not less than Five hundred pesos (P500.00) but

not more than Twenty thousand pesos (P20,000.00) or imprisonment of not

less than three (3) months but not more than two (2) years or both, at the

discretion of the court: provided, that, if the consumer product is one which is not a

food, cosmetic, drug, device or hazardous substance, the penalty is a fine of not

less than Two hundred pesos (P200.00) but not more than Five thousand

pesos (P5,000.00) or imprisonment of not less than one (1) month but not

more than one (1) year or both, at the discretion of the court.

Liability for Product and Service:

Any Filipino or foreign manufacturer, producer, and any importer, is liable for

redress, independently of fault, for damages caused to consumers by defects

resulting from design, manufacture, construction, assembly and erection, formulas

and handling and making up, presentation or packing of their products, as well as

for the insufficient or inadequate information on the use and hazards .

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Vietnam

Introduction:

Vietnam is the easternmost country on the Indochina Peninsula in

Southeast Asia. It is bordered by China to the north, Laos to the northwest,

Cambodia to the southwest,

and the South China Sea to

the east. It covers a surface

area of 128,000 square miles.

It is the 13th most populous

country in the world with a

population of over 86 million.

Eighty percent of them are

ethnic, while the remaining

twenty percent comprises of

fifty separate ethnic groups.

The Socialist Republic of Vietnam is a single-party state under the control of

the Communist Party of Vietnam. The Communist Party of Vietnam has a central

role in shaping the country's policy and legal system and maintains a firm control

over all the government and social system. The Vietnamese government is not

structured based on the theory of the separation of powers. The National

Assembly is constitutionally the body of highest power of Vietnam and is the

supreme law making body. It exercises the legislative power, determines the

economic and social, domestic, international, financial and monetary policies of the

country.

Furthermore for better protection of consumers and in order to restrict the

anti-competitive and unfair competition among enterprises who threaten the

legitimate rights and interests of business and consumers, the Vietnam

Competition Law was enacted by National Assembly in July 2005. It

comprises of six Chapters and a total of thirty Articles. The ordinance deals

with the rights and responsibilities of the consumer, the responsibilities of

Source: www. lonelyplanet.com

88

organizations, individuals carrying out production, business activities and state

administration on the protection of consumer interests.

The Law applies to all business, professional and trade associations in

Vietnam; FDI enterprises registered in Vietnam; public utilities, state monopoly

enterprises; and state administrative bodies. It has superseding power over

other enacted laws regarding restrictive business practices and unfair trade

practices.

The Law prohibits anticompetitive practices:

In order to protect consumers and to ensure competitors competing freely,

the following unfair competitive practices are prohibited:

1. misleading instructions;

2. infringing business/trade secrets;

3. coercion in business;

4. disruption of a competitors' businesses;

5 .defamation;

6. advertisement aimed at unfair competition;

7. promotion aimed at unfair competition;

8 .discrimination by association; and

9.illegal multi-level selling (more commonly known as pyramid selling).

The rights of the consumer:

In Vietnam, consumers have eight rights as follows:

1. Right to the satisfaction of basic needs: The consumers have the

right to select the goods or services,

2. Right to safety: The consumers have the right to be protected during

the course of using the goods or services,

3. Right to be informed: The consumers have the right to obtain right

information or guidance necessary for the consumption purpose relating

to the quality, the prices, the direction for use of goods or services; safety

of life, of health and of environment,

4. Right to choose: The consumers are to be provided with necessary

knowledge on consumption,

89

5. Right to be heard: The consumers have the right to claim for

compensation when the goods or the services fail to meet the standard

of quality, the declared quantity and price or the contract signed; the

consumer shall have the right to lodge a complaint or denouncement, a

petition according to the regulations of the law concerning the production,

business of prohibited goods, fake goods; of goods, services which do

not meet the standard of quality, quantity and in case of false information

and advertisement.

6. Right to redress: The consumers have the right to contribute opinions

in relation to the planning and the adoption of the policies or the laws

relating to the protection of the consumer's interests and have the right to

request the organizations/ individuals engaging in goods or services

production/ business activities to fulfill their responsibilities concerning

the protection of the consumer's interests.

7. Right to consumer education: The consumers have the right to

request that organizations/ individuals engaging in production/ business

activities ensure the standard, quality of goods concerning the essential

needs on food, clothing, housing, transportation, education, health care,

environment protection and of other registered, declared goods and

services.

8. Right to health and sustainable environment: The consumers have

the right to establish organisation to protect their legitimate rights and

interests in accordance with the law.

Responsibilities of the consumer:

1. The consumers are responsible for protecting themselves in utilising

goods, services; following exactly the method, instruction for use of

goods, services;

2. Be responsible for not using the goods or services which can cause

adverse effect to the environment, against the fine custom, cause harm

to the life and health of himself and the community.

3. The consumer will be responsible for discovery, denouncing of dishonest

actions on standard, measuring, quality, good labeling, price and other

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tricky manoeuvres of organizations, individuals in production, business of

goods, services, which cause damage to an individual and the

community, in accordance with the law.

Responsibilities of organizations/ individuals carrying out

production/ business activities:

1. Organizations/individuals carrying out production/ business activities

having business registration shall register, declare the standard of the

quality applicable for their goods, services.

2. Organizations/ individuals carrying out production/business activities must

ensure exact and true information, advertisement on their goods,

services; post up the price of goods, services; declare the conditions, the

duration, the location of the warranty and provide clear instructions

relating to the use of goods, service to the consumer.

3. Organizations/ individuals carrying out production/ business activities

shall be responsible for resolving the complaint launched by the

consumer on their goods, services which do not comply with the declared

standard, quality, quantity, price or with the contract signed; shall be

responsible for carrying out warranty of their goods, services for the

customer.

4. Organizations/ individuals carrying out production/ business shall be

responsible for gathering, studying, admitting the opinions from the

consumer; shall be responsible for refunding, compensating against the

damage for the consumer in accordance with the law.

Consumer Organizations/Agencies in Vietnam:

Before 2004, the responsibilities regarding consumer protection and

welfare were assigned to Ministry of Science, Technology & Environment

(MOSTE). Since then these responsibilities have been transferred to the Ministry

of Trade and the Competition Administration. Now the Vietnam Competition.

Administration Department (VCAD) is the direct implementation agency in

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Vietnam. Its function is to assist the Minister of Industry and Trade in implementing

state management in the area of competition and consumer protection. The

Vietnam Competition Council (VCC) has been established as an independent

law enforcement agency. Its members (around 11-15) have been appointed by

the Prime Minister, at the recommendation of the Minister of Trade. VCC is

responsible for handling and deciding on competition restricting acts. Its function is

to assist the Minister of Trade in state management of competition in order to

promote an equitable and non-discriminative competition environment, and to

protect and encourage fair competition:

• making regulations and providing guidelines on compliance with the

Competition Act, particularly in respect of what constitutes restraint of

competition, abuse of dominant position, prohibited mergers or

acquisitions, etc.;

• dealing with breaches of competition regulations;

• determining whether conduct or a particular transaction falls within one

of the allowed exceptions; and co-ordinating with sectoral regulators to

carry out competition policy and determine compliance

The Competition Administration Authority has the following

duties and powers:

• Control the process of economic concentration in accordance with

this Law.

• Process dossiers for seeking for a grant of exemption; make

proposals to the Minister of Trade for his decision of further

submission to the Prime Minister for his decision.

• Investigate into competition cases relating to acts of restriction of

competition and unfair competition.

• Deal with and impose penalties upon acts of unfair competition.

• Carry out other duties as provided for by law

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At local level there are two State Management Agencies which cater to

the consumer problems. They are:

1. Department of Trade/Department of Trade & Tourism;

2. Local authorities.

Redressal Mechanism:

Aggrieved consumers can directly or through their representatives lodge

complaints and request for compensation against organizations/ individuals

producing or trading the goods, services that caused damage to him, in

accordance with the law. Complaints lodged by the consumer against

organizations/ individuals carrying out production/ business activities are being

resolved firstly by conciliation, except otherwise regulated by the law. In case of

failure of the conciliation, the consumers have the right to lodge complains to the

competent state body or to bring to the court, in accordance with the law.

But Studies show that the legal framework under this work is almost non-

existent and the procedures of filing complaints against the sale of unscrupulous

goods by traders and manufacturers are not clearly defined.

Implementing Agencies:

State administration agencies for the protection of the interests of the

consumer and related state bodies within the jurisdiction are responsible for

resolving in a timely manner the complaints and denouncements of the consumer,

in accordance with the law.

Everybody carrying out the production/ business of prohibited goods, fake

drugs, fake foods and other fake goods of foods which do not answer the safety,

hygiene standards; carrying out the production/ business/ distribution of goods and

services which cause serious damage to the environment, to the life, health of the

people; depending on the seriousness and the extent of the breach, is subjected to

discipline, administrative fine or prosecution of criminal liabilities; is responsible for

paying compensation to the consumer in case of causing damage to consumer, in

accordance with the law.

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VCAD is the only institution with the authority to investigate and make

decisions on the merit of a complaint. Investigation can be conducted when

VCAD receives report/evidence from an involved party. VCAD could also, if it

detects any sign of violation of the Competition Law, launch an investigation on its

own initiative. For complaints relating to competition restricting acts, the VCAD has

180 days to investigate, after which it will submit its investigation report to the

VCC for a decision. However, VCC’s decisions are not final. The involved parties

may submit an objection to the Provincial/Municipal People’s Courts. The

decision can be appealed to the Minister of Trade, after which further appeals

can be made to any provincial courts.

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Comparative Table of Consumer Protection – Related Resources and Organisaions

Countries Applicable Acts/Laws

Enforcement Agencies Links

Australia

• Trade Practices Act, 1974

• Freedom of Information Act, 1982 (Commonwealth)

• Prices Surveillance Act, 1983 (Commonwealth)

• Privacy Act, 1988 (Commonwealth) • Australian Securities and Investment

Commission Act, 1989 (Commonwealth) • Australia New Zealand Food Authority

Act, 1991 (Commonwealth) • Telecommunications (Consumer

Protection and Service Standards) Act, 1999 (Commonwealth)

• Consumer Credit Code • State Fair Trading Acts

• Consumer Affairs Division of Deptt. of Treasury (Policy Agency)

• Australian Competition and

Consumer Commission (ACCC) • Australian Securities and

Investments Commission • Federal Privacy Commissioners

www.treasury.gov.au www.consumeronline.gov.au www.accc.gov.au www.asic.gov.au www.privacy.gov.au

Hong Kong

22 Laws having separate statutes dealing with different aspect of consumer protection e.g. The Consumer Goods Safety Ordinance, Control of Exemption Clauses Ordinance, Unconscionable Contracts Ordinance, Public Health & Municipal Services Ordinance, Trade Descriptions Ordinance, Undesirable Medical Advertisements Ordinance, Sale of Goods Ordinance and Small Claims Tribunal Ordinance, Consumer Council Ordinance.

• Small Claims Tribunal • Customs and Excise Department • Food and Environmental Hygiene Department • The Law Society of Hong Kong • The Medical Council of Hong Kong • Travel Industry Council of Hong

Kong • Insurance Claims Complaints

Bureau • Insurance Agents Registration

Board • Consumer Legal Action Fund

www.judiciary.gov.hk www.customs.gov.hk www.fehd.gov.hk www.hklawsoc.org.hk www.mchk.org.hk www.tichk.org www.iccb.org.hk www.hkfi.org.hk www.consumer.org.hk

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Indonesia

• Principal of Act No 8. on Consumer Protection, 1999

• Law Number 2 Year 1966 regarding Hygiene

• Law Number 15 Year 1985 regarding Electricity

• Law Number 23 Year 1992 regarding Health

• Law Number 7 Year 1996 regarding Food

• Minister of Industry and Trade Decree

• National Consumer Protection Agency

• Consumer Dispute Settlement Board in

all 10 regions of Indonesia

www.bpkn.go.id www.indonesia.go.id www.pkditjenpdn.depdag.go.id

Malaysia

• Consumer Protection Act, 1999 • Weights And Measures Act 1972 • Trade Descriptions Act 1972 • Hire - Purchase Act 1967 • Control Of Supplies Act 1961 • Price Control Act 1946

• Ministry of Domestic Trade and Consumer Affairs

• The Tribunal for Consumer Claims • The Small Claims Court • The Tribunal for Homebuyers

Disputes • The Financial Mediation Bureau

www.gov.my www.ttpm.kpdnhep.gov.my www.ttpm.kpdnhep.gov.my www.hba.org.my www.fmb.org.my

Nepal

• Consumer Protection Act 1998

• Nepal Standards (Certification Mark) Act, 1980

• Black-Marketing and Certain Other Social Crimes and Punishment Act,1975

• Essential Installations ( Protection) Act,1955

• Ministry of Law and Justice • Consumer Protection Council • Compensation Committee

www.nepalgov.gov.np

New Zealand

• Consumer Guarantee Act, 1994 • Fair Trading Act, 1990 • Law by Sales Act, 1971 • The Hire Purchase Act, 1974

• Ministry of consumer Affairs

• Ministry of Economic Development

• Dispute Tribunals for Different Sectors

www.consumeraffairs.govt.nz www.med.govt.nz

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Pakistan

• The Islamabad Consumer Protection Act, 1995

• Balochistan, Consumers Protection Bill, 2003

• Punjab Consumer Protection Act (Punjab CPC), 2005

• Sindh Consumer Rights Council (CRC), 2005

• Islamabad Consumers Protection Council, Capital Development Authority-Islamabad

www.cda.gov.pk/

Philippines

• The Consumer Act of the Philippines, 1990

• The Department of Health • The Department of Agriculture • The Department of Trade and

Industry

www.doh.gov.ph www.da.gov.ph www.dti.gov.ph

Vietnam

• The Vietnam Competition Law, 2005 • Ministry of Trade and the Competition Administration

• Vietnam Competition. Administration Department (VCAD)

• Vietnam Competition Council • Department of Trade and Tourism • Local Authorities (At Local Level)

www.1.mot.gov.vn www.vcad.gov.vn

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Websites Referred

1. www.1.mot.gov.vn 2. www.apec.org 3. www.agents.cirad.fr 4. www.geographia.com 5. www.nyulawglobal.org 6. www.en.wikipedia.org 7. www.nyulawglobal.org 8. www.gov.ph 9. www.nyulawglobal.org 10. www.en.wikipedia.org 11. www.asiatradehub.com 12. www.pakistan.gov.pk 13. www.geographia.com 14. www.consumeraffairs.govt.nz 15. www.innz.co.nz 16. www.parliament.nz 17. WWW.en.wikipedia.org 18. www.en.wikipedia.org 19. www.apcdproject.org 20. www.nepalgov.gov.np 21. www.apcdproject.org 22. www.malaxi.com 23. www.en.wikipedia.org 24. www.nyulawglobal.org 25. www.pkditjenpdn.depdag.go.id 26. www.stadtaus.com 27. www.indonesia.go.id 28. www.en.wikipedia.org 29. www.llrx.com 30. www.hkclic.org 31. www.yearbook.gov.hk 32. www.info.gov.hk 33. www.asianinfo.org 34. www.consumer.org.hk 35. www.accc.gov.au 36. www.trumanhoyle.com.au 37. www.geographic.org 38. www.roughguides.com 39. www.wikipedia.org 40. www.dfat.gov.au

41. www.tureenafroz.com 42. www.sino.net 43. www.lonelyplanet.com