Access to justice in the Malaysian e-commerce sector : the relevance of the EU regulation on online dispute resolution for consumer disputes

Abstract

The aim of this study is to determine the feasibility of transplanting the European Union Regulation on Online Dispute Resolution for Consumer Disputes to Malaysia. This study begins with the hypothesis that access to justice for online consumers in Malaysia is not adequate to effectively protect such consumers. The study employs various methods of research, beginning with field-based legal research by conducting interviews with the National Consumer Complaints Centre and the Tribunal for Consumer Claims, the two main avenues in Malaysia dealing with dispute resolution for consumers. A trend study was also conducted using secondary data to determine the value of the e-commerce market to Malaysia. Finally, the content analysis method was employed to analyse the hypothetical effects of implementing the EU Regulation in Malaysia. It was found that Malaysia is falling behind in providing effective redress to its online consumers, where the claims lodged for online transactions were found to be only 0.13% of the total claims lodged in 2011 and only 0.79% of the total claims lodged in 2013. Analysis of secondary data suggests that these numbers should be at 1% of the total claims lodged and should grow higher in the near future. A study of the e-commerce market in Malaysia for Business-to-Consumer online transactions shows that it is a small market that is growing at a rapid pace, becoming three times as large in the past three years, which demands the attention of the authorities to put in place mechanisms to ensure consumer access to justice. To rectify this situation, a legal transplant of the European Union Regulation on Online Dispute Resolution for Consumer Disputes to Malaysia is considered. Analysis shows that it could be partially transplanted with certain modifications due to the differing circumstances of both jurisdictions. However, the majority of the legislation can be kept intact due to the global nature of online transactions. Suggested modifications were proposed with the aim to allow the partial adoption of the legislation including a proposed procedure that Malaysian consumers would go through if they need to file a claim through the proposed Online Dispute Resolution platform. This study is the first to consider a legal transplant to Malaysia in the field of Online Dispute Resolution. It adds further value to the body of knowledge by presenting concrete data on the access to justice for online consumers in Malaysia.