Post on 20-Apr-2020
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.
58
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.
68
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.
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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,
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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