'The Responsible Consumer in the Digital Age: On the Conceptual Shift from ‘Average’ to ‘Responsible’ Consumer and the Inadequacy of the ‘Information Paradigm’ in Consumer Financial Protection' by Cătălin Gabriel Stănescu in (2019) 24(1)
Tilburg Law Review 49–67
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The article argues that the ‘information paradigm’, within which the concept of ‘average’ consumer operates, is unfit to provide adequate financial protection to consumers in the aftermath of the 2008 financial crisis and in the wake of the digital age. As the complexity of financial and digital financial services increases, consumers are expected to educate themselves and become financially literate, while traders’ liability and state intervention are reduced to a minimum. ‘Average’ consumers are turned into ‘responsible’ ones.
Using as examples the Mortgage Directive and European Securities and Markets Authority (ESMA)’s position on Initial Coin Offerings (ICOs), the article shows that the former ‘paternalistic’ attitude towards consumer protection in both EU legislation and policy making was replaced with a ‘self-help’ approach and contests the general wisdom regarding consumers’ ability to participate in financial markets or understand the risks posed by novel products and services facilitated by technical innovation and digitization.
The article calls for a reconsideration of the information paradigm and for a pro-active approach of the EU regulatory bodies to provide consumers with efficient protection.
'Consumer Protection, Modern Regulation, Paternalism and the Nanny State: Understanding the Legitimacy Challenge' by Eric Windholz in
(2018) 26
Competition and Consumer Law Journal 182
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Regulation to protect consumers from making choices that may be harmful to themselves is common place in Australia. Yet commentary on such regulation can be both polarised and bi-polar. At one extreme are libertarian groups and business for whom much regulation is a reflection of government overreach and interference. ‘Nanny state’ is the label they oft attach to it, and to the experts that advocate it. Those experts on the other hand, describe such regulation as the epitome of the modern regulatory state - one that seeks to proactively shape a world in which people live healthy, wealthy and happy lives. And in the middle are people for whom discussion of consumer protection regulation produces contradictory impulses. Such extreme and variable views represent a challenge to the legitimacy of consumer protection regulation. This paper examines developments specific to the consumer protection regulatory landscape to understand the underlying causes of this legitimacy challenge. It is only by understanding those causes that governments can hope to navigate a path to better legitimacy.
'ASEAN Consumer Law Harmonisation and Cooperation: Backdrop and Overarching Perspectives' (Sydney Law School Research Paper No. #19/32) by
Luke Nottage, Justin Malbon, Jeannie Marie Paterson and Caron Beaton-Wells
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This paper is adapted mainly from the manuscript version of the introductory chapter for the forthcoming Cambridge University Press volume, ASEAN Consumer Law Harmonisation and Cooperation: Achievements and Challenges, by Luke Nottage, Justin Malbon, Jeannie Marie Paterson and Caron Beaton-Wells. Included in the series on “Integration Through Law: The Role of Law and the Rule of Law in ASEAN Integration”, our book is the first Western-language research monograph detailing significant developments in consumer law and policy across the Association of Southeast Asian Nations, underpinned by a growing middle class and implementation of the ASEAN Economic Community from 2016. Eight chapters examine consumer law topics within ASEAN member states (such as product safety and consumer contracts) and across them (financial and health services), as well as the interface with competition law and the nature of ASEAN as a unique and evolving international organisation. Insights are included from extensive fieldwork by the four authors, partly through several consultancies for the ASEAN Secretariat over 2013-5, to provide a reliable, contextual and up-to-date analysis of consumer law and policy development across the region. The volume also draws on and contributes to theories of law and development in multiple fields, including comparative law (with references also to consumer law developments in Australia, Japan and the EU), political economy and regional studies.
The introductory chapter outlines the backdrop to the achievements and challenges experienced as ASEAN has intensified its program of harmonising minimum standards of consumer protection across Southeast Asia, especially over the last decade. A key factor outlined is economic integration both among ASEAN member states and with their wider regional and global economies. Yet diversity among member states (demographics, economic development, legal and political systems, NGOs and press freedom) arguably influences the timing and extent of consumer law reform and implementation in each country. The chapter ends with summaries of the scope and key lessons of the remaining substantive chapters in the volume (examining product safety regulation, consumer contracts, financial and health services, and interaction of consumer law with competition law) as well as the concluding chapter (adding proposals for enhancing more public-private ‘shared regional value’). This paper adds (in Part 1.4.2) an adaptation of four of the theoretical perspectives elaborated in chapter 2 of the volume, to understand better the trajectory of consumer law harmonisation across Southeast Asia, and the evolving nature of ASEAN itself. These include theories of comparative regionalism, transgovernmentalism, ‘trading up’, and legal transplants.
