The Law on Protection of Consumers' Rights Vietnam's Magna Carta for Consumers?

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1 The Law on Protection of Consumers' Rights Vietnam's Magna Carta for Consumers? Christian Schaefer, Hogan Lovells International LLP Ho Chi Minh City, 9 May 2012

2 OUTLINE 1. Overview 2. Scope of application 3. Standard form contracts and "general trading conditions 4. Protection of personal data and information 5. Implications for product liability 6. Dispute resolution process 7. Risks and legal consequences 2

3 1. Overview Key regulations: Law 59/2010/QH12 dated 17 November 2010 on protection of consumers rights (effective as of 1 July 2011, LOPC ) Decree 99/2011/ND-CP dated 27 October 2011 of the Government making detailed provisions and providing guidelines for the implementation of a number of articles of the Law on protection of consumers rights ( Decree 99 ) 3

4 1. Overview (cont d) Decree 19/2012/ND-CP dated 16 March 2012 of the Government providing on fines in protection of consumers rights ( Decree 19 ) Decision 02/2012/QD-TTg dated 13 January 2012 of the Prime Minister promulgating the list of essential goods and services for which contract forms and general trading conditions must be registered ( Decision 02 ) 4

5 1. Overview (cont d) Objectives: initially: to establish a comprehensive framework of consumers rights in Vietnam Article 1 LOPC to replace the outdated Ordinance on protection of consumers rights (1999) however, results and outcome are far tamer than initially planned 5

6 1. Overview (cont d) Introduction / clarification of a number of typical concepts relating to consumer protection, such as: - Standards for general terms and conditions - Right of rescission from contracts entered into online, over the phone, at consumer s home or work place - Product liability 6

7 2. Scope of application LOCP governs the relationship (rights and responsibilities) between consumers and traders Consumer : - person purchasing or using goods and services with the aim of consumption for living purposes by an individual, family or organization (Article 3.1 LOCP) - no requirement that buyer and user/consumer of the goods or services are identical - use/consumption by organization? 7

8 2. Scope of application (cont d) Trader - organization or individual conducting business in goods and services that implement one or more phases of the investment process from their manufacturing to their commercial sale (Article 3.2 LOCP) - including business entities under the Commercial Law and independent individual traders (non-registered) that act with a certain regularity In addition, LOCP includes rights and obligations of social organizations for consumer protection, and State agencies 8

9 3. Standard form contracts and "general trading conditions (Article 19 LOCP and section 1, chapter 3 of Decree 99) standard contracts used by traders in an unspecified number of transactions with consumers general trading conditions (akin to standard terms and conditions of sale/service): terms for sales to consumers / provision of services to consumers 9

10 3. Standard form contracts and "general trading conditions (cont d) general requirements for standard form contracts and general trading conditions : Vietnamese language contents must be clear and simple to understand font size must be at least 12pt readability of the print (paper and ink used must ensure sufficient contrast) consumers must be allowed time to review standard form contracts; general trading conditions must be publicly announced and displayed at the business location of the seller / service provider Incorporation of standard terms into an agreement? 10

11 3. Standard form contracts and "general trading conditions (cont d) mandatory registration of standard form contracts and general trading conditions applies only to contracts for goods / services included on the list of essential goods and services (as issued by the Prime Minister with Decision 02 ) - utilities contracts for personal consumption (electricity, water) - pay television (cable and other pay TV services) - telephone subscriptions (other than prepaid) - internet connection contracts - air and rail passenger transport contracts - purchase and sale of apartments, day-to-day services provided by apartment-managing units 11

12 3. Standard form contracts and "general trading conditions (cont d) interestingly, no banking services (e.g. personal accounts), hospital / medical treatment contracts, other personal transport services (in particular, bus transport), postal / delivery contracts etc. 12

13 3. Standard form contracts and "general trading conditions (cont d) registration process: - Ministry of Industry and Trade ( MoIT ) for contracts / conditions that are applied Vietnam-wide or at least in two provinces / municipalities - local Department of Industry and Trade ( DoIT ) for contracts / conditions applied only in a particular province or municipality scope of review: - Content to be reviewed: validity-test against requirements provided by Article 16 LOCP - examples of clauses prohibited by Article 16 LOCP the clause excludes statutory liability of the trader (Article 16.1(a) LOCP); unilateral changes (Article 16.1(b) LOCP); imprecision / lack of regulations (Article 16.1(b) LOCP); clauses allowing the trader to unilaterally determine the price upon delivery (Article 16.1(dd)); clauses providing that the consumer must discharge its obligation before the trader discharges its own obligations (Article 16.1(h) 13

14 3. Standard form contracts and "general trading conditions (cont d) - Competent state agency has authority to request the Traders to amend / delete any provisions that are unclear or conflict with the LOCP (Article 16 Decree 99). Also, the state agency reserves the right to obtain opinions from other authorities / agencies during the registration procedures of the standard form contracts and general trading conditions - There is no clear basis to define unclear provisions or conflicting provisions, this means the authorities will have substantial discretion in requiring amendments to standard form contracts and general trading conditions - Review of format and content (as provided by Article 7 of Decree 99) Breaches of provisions on registration of standard form contracts and general trading conditions may be fined up to VND 70 million (USD 3,500) 14

15 4. Protection of personal data and information Article 6 LOCP protects personal data and information of consumers (in addition to other provisions, e.g. in Article 38 of the Civil Code) - Article 6 LOCP is more specific on obligations of traders using or collecting information - includes details on information requirements, consent, conditions for maintaining and transferring personal data Breaches of provisions on protection of personal data and information of consumers may be fined up to VND 20 million (about USD 1,000) and other penalty measures 15

16 4. Protection of personal data and information (cont d) Article 3.1 of Decree 19: information may be deemed a personal secret of consumers under three conditions: a. information relates to consumers personally b. Information is protected by the consumer or other organisations, relevant persons c. disclosure of this information without approval of consumer may cause an adverse effect on the consumer Breaches of provisions on protection of personal secrets of consumers, may be fined up to VND 30 million (about USD 1,500) and other penalty measures. 16

17 5. Implications for product liability New / additional provisions on product liability including: Recall (Article 22 LOCP) - Specific obligation to stop supply of further goods to the market - Recall of goods / products, including: compliance with the recall procedures provided by the law: (e.g. public notice on at least 5 consecutive editions of daily newspaper with compulsory contents about the products) unclear whether failure to comply with recall procedures has only administrative consequences (fines) or other (e.g. in determining fault ) 17

18 5. Implications for product liability - obligations for compensation in case defective goods cause damages (Article 23 LOCP) - liability of importer / trademark owner or licensee - liability also where there has been no fault unless trader can demonstrate that the product was state-of-the-art and defect could not have been detected or anticipated 18

19 6. Dispute resolution process LOCP provides for three permitted methods of dispute resolution: - mediation: conditions to set up mediation organisations and conditions to become mediator - courts: in accordance with Civil Code and Civil Procedures Code, special consumer claim where the value of the transaction is less than VND 100 million (USD 5,000) - arbitration: will only be applied if consumer accepts arbitration even where an arbitration clause is included in the contract. 19

20 7. Risks and legal consequences High degree of uncertainty regarding the legal validity of general terms and conditions in consumer transactions (these are mitigated in part for registered terms) Greater liability / exposure for importers / trademark owners and licensees from a product liability perspective Increase in important of consumer protection organizations (who are given the right to initiate proceedings) 20

21 Christian Schaefer Senior Associate Hogan Lovells International LLP 10th Floor, VTP Building 8 Nguyen Hue Street, District 1 Ho Chi Minh City Tel: Direct: Fax: christian.schaefer@hoganlovells.com 21

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