Kelvin Kwok on An Autonomy Theory of Consumer Protection Law (Antitrust Law Journal)

"An Autonomy Theory of Consumer Protection Law"
Kelvin Kwok
Antitrust Law Journal, Volume 86, Issue 2 (2024) pp. 411-472
Published online: December 2024

Abstract: This article sets forth a new autonomy theory of consumer protection law (CPL), drawing on Joseph Raz’s framework on personal autonomy and explicating the relationship between CPL interventions and the independence, rationality, and opportunity dimensions of autonomy. It seeks to contrast the autonomy perspective on freedom of choice and the corresponding role of CPL with the prevailing welfarist perspective, arguing that the autonomy perspective should be preferred because it better fits the function of CPL than the welfarist perspective, apart from resting firmly on the value of personal autonomy. It proceeds to explore the autonomy-based functions of CPL with regard to choice facilitation, choice enhancement, and choice limitation. The article argues that, as compared to the welfarist perspective, the autonomy perspective can more persuasively explain the need for a holistic approach to choice enhancement and the value of eco-friendly options, as well as the regulatory preference for choice facilitation over choice limitation in choice overload and complexity situations.

Please click here to read the full article on Antitrust Law Journal.

Please click here to read the full article on SSRN.

Angela Zhang et al on Improving Dispute Resolution in Two-Sided Platforms: The Case of Review Blackmail (Management Science)

"Improving Dispute Resolution in Two-Sided Platforms: The Case of Review Blackmail"
Yiangos Papanastasiou, S. Alex Yang, and Angela Huyue Zhang
Management Science
Published online on 23 January 2023
https://doi.org/10.1287/mnsc.2022.4655

Abstract: We study the relative merits of different dispute resolution mechanisms in two-sided platforms in the context of disputes involving malicious reviews and blackmail. We develop a game-theoretic model of the strategic interactions between a seller and a (potentially malicious) consumer. In our model, the seller takes into account the impact of consumer reviews on his future earnings; recognizing this, a malicious consumer may attempt to blackmail the seller by purchasing the product, posting a negative review, and demanding ransom to remove it. Without a dispute resolution mechanism in place, the presence of malicious consumers in the market can lead to a significant decrease in seller profit, especially in settings characterized by high uncertainty about product quality. The introduction of a standard centralized dispute resolution mechanism (whereby the seller can report allegedly malicious reviews to the host platform, which then judges whether to remove the review) can restore efficiency to some extent but requires the platform’s judgments to be both very quick and highly accurate. We demonstrate that a more decentralized mechanism (whereby the firm is allowed to remove reviews without consulting the platform, subject to ex post penalties for wrongdoing) can be much more effective, while simultaneously alleviating—almost entirely—the need for the platform’s judgments to be quick. Our results suggest that decentralization, when implemented correctly, may represent a more efficient approach to dispute resolution.

This paper was accepted by Victor Martínez-de-Albéniz, operations management.

Funding: S. A. Yang and A. H. Zhang acknowledge the support of the Hong Kong General Research Fund [Grant “Decentralizing Platform Governance: Innovations from China; Project 17614921].

Supplemental Material: The online appendices are available at https://doi.org/10.1287/mnsc.2022.4655.

Professor Shahla Ali Awarded HKU Faculty Knowledge Exchange Award 2019

Congratulations to Professor Shahla Ali who was awarded the University of Hong Kong's Faculty Knowledge Exchange (KE) Award 2019 (Faculty of Law). The award recognises the impact her research has had on access to consumer financial dispute resolution in Hong Kong in the interests of consumers. The impact from "Increasing Access to Consumer Financial Dispute Resolution in Hong Kong" ("增加香港消費者金融糾紛解決的可及性​") was summarised as follows:

"Dr. Shahla Ali’s research supported the enhancement of access to justice for injured financial investors in Hong Kong by contributing to a revised set of rules for the Hong Kong Financial Dispute Resolution Centre (“FDRC”). In January 2018, the FDRC adopted new rules enhancing services through raising the maximum claimable amount for aggrieved consumers from HK$500,000 to HK$1,000,000 and extending the limitation period from 12 to 24 months. These rules changes have resulted in expanded accessibility and strengthened investor protection in Hong Kong, reinforcing Hong Kong's status as an international financial centre. Her research also informed consumer financial policy design in Mainland China and Egypt."

     The Faculty KE Awards were introduced in 2011 in order to recognise each Faculty’s outstanding work demonstrating economic, social or cultural benefit to the community, business/industry, or partner organisations. Nominations are considered by an Ad Hoc Faculty KE Award Selection Committee whose members include the Dean (chair), the Faculty representative serving on the KE Working Group, one of the Associate Directors of the Knowledge Exchange Office (KEO), and a member from outside the University. The selection criteria include evidence of the KE project’s link with excellence in research or in teaching & learning of HKU; evidence of an effective engagement process with the non-academic sector(s); and evidence of demonstrable benefits to the community, business/industry, or partner organisations.

Thomas Cheng's Consumer Behavioral Approach to Resale Price Maintenance (Virginia Law and Business Review)

"A Consumer Behavioral Approach to Resale Price Maintenance"
Thomas Cheng
Virginia Law and Business Review

Fall 2017, Volume 12, Issue 1, pp 1-92

Abstract: This Article reexamines the various pro-competitive justifications and theories of harm for resale price maintenance (“RPM”), one of the most controversial practices in antitrust law. It argues that the existing literature overlooks three important issues regarding RPM, namely, the kind of retail service invoked in a justification, the kind of retailer at issue, and the prevailing model of consumer behavior. All three issues have important implications for the plausibility and validity of the various justifications and theories of harm for RPM. It argues that most of the existing literature presumes the inter-brand primacy model of consumer behavior. Once this model is not applicable, much of the prevailing analysis breaks down and the legality of RPM needs to be reconsidered. In particular, this Article demonstrates that many of the accepted justifications for RPM are of doubtful validity or are only valid under limited circumstances. This lends support to a more hostile view of RPM.  Click here to download the full article.

HKU Class of 2016 Graduates (Law PhD and SJD)

Congratulations to our 14 PhD and 1 SJD graduates who had their degrees conferred upon them at the 196th Congregation on 1 December 2016 at the University of Hong Kong.  The Congregation also saw the graduation of 461 other Faculty of Law students: 24 LLM, 21 LLM in Human Rights, 83 LLM in Corporate & Financial Law, 38 Master of Common Law, 4 LLM in Chinese Law, 27 LLM in Information Technology and Intellectual Property Law, 37 LLM in Arbitration and Dispute Resolution, 38 JD and 189 LLB. The newest members of our RPg alumnae family include the following:

1. Dr Yue LUO, The Myth of Chinese Well-Known Marks: Formation, Debunking and Judicial Practice.  Supervisors: Alice Lee and Po Jen Yap

2. Dr Che Singh KOCHAR-GEORGE, A Disciplinary Model of the Asylum Process: Case Studies from the United Kingdom and Hong Kong.  Supervisors: Simon Young and Kelley Loper

3. Dr Henan HU, Re-examining Territorial Sovereignty in International Law: A New Perspective of the Settlement of the China Sea Disputes.  Supervisors: Hualing Fu and Tony Carty

4. Dr A-Jull LIM, Professional Failure and the Degradation of International Humanitarian Law: Narcissist Responses to the Post 9/11 So-called War on Terrorism.  Supervisor: Hualing Fu

5.  Dr Erick Onyango KOMOLO, Regime Fragmentation and Interaction: A Case Study of Kenya's Marine Fisheries Regulation.  Supervisor: Shahla Ali

6. Dr Huimiao ZHAO, Government Intervention in the Reorganization of Listed Companies in the context of Socialist Market Economy of China.  Supervisors: Xianchu Zhang and Emily Lee

7.  Dr Guy Samuel Charles LIPERT, Consumers and Banks in Dispute - From Litigation to Mediation: How Outlier Consumers and Banks in Hong Kong Engaged in Dispute Resolution in the Wake of GFC.  Supervisors: Shahla Ali and Katherine Lynch

8. Dr Uzma ASHRAF, The Need and Prospects for an Enforcement Mechanism in the Post-crisis Reconstruction of International Financial Regulatory Architecture.  Supervisor: Douglas Arner

9.  Dr Maria Adele CARRAI, A Genealogy of Sovereignty in Modern China, 1840-Today.  Supervisor: Albert Chen

10.  Dr Annelotte Jorien WALSH, A Children's Right Audit of the International Criminal Court.  Supervisor: Scott Veitch

11.  Dr Han ZHU, Social Movements and the Law in Contemporary China: A Comparative Approach.  Supervisor: Albert Chen

12.  Dr Man Lung CHENG, Emergency Powers and the Constitution: A Case Study of the Republic of China (1912-1991).  Supervisor: Albert Chen

13. Dr Anna Eirini BAKA, The Dialectic of the Cave: Self-determination, Constitution and the Phenomenology of Deprivation.  Supervisor: Tony Carty

14.  Dr Wenwen LU, Emergency Powers and Law in China.  Supervisors: Hualing Fu and Tony Carty

15.  Dr Sha LI, Fiction and Human Rights Discourse in China 1897-1927.  Supervisor: Marco Wan.

Lee Mason on Protecting Consumers from Unfair Terms in Standard Form Contracts

"Protecting consumers from unfair terms in standard form contracts: the UK approach" 

Lee Mason

European Business Law Review

Vol. 26 (2015), Issue 2, pp 335-45

Abstract: This article examines the current UK consumer protection regime specifically relevant to unfair terms in standard form consumer contracts, as provided for by the Unfair Terms in Consumer Contracts Regulations 1999 (pursuant to the European Union's Council Directive 93/13/EEC) and the solid body of case law that has grown around it. In particular, the article takes a closer look at the decision in Office of Fair Trading v. Ashbourne Management Services Ltd [2011] EWHC 1237 (Ch) and its impact on protecting UK consumers who enter into standard form gym club contracts.

Consumer Council's Electricity Market Study

Hong Kong's Consumer Council recently published its 170-page report on the electricity market, which for many years has been controlled by two power companies: CLP Power Hong Kong Ltd and Hongkong Electric Company Ltd.  The study found that the existing method of regulation had served Hong Kong well providing reliable and affordable supplies of electricity.   But the status quo may not be flexible enough to adapt to the new environmental policy supporting emission reduction over the next 30 years.  The report finds a need to reform the current system but advocates an incremental approach.  Liberalisation of the market should be directed towards natural gas and renewable alternatives rather than to retail competition.  One of the more concrete recommendations was for the Hong Kong Government to "establish a full-fledged energy sector regulator which needs to have the 'critical mass' to perform in relation to the structure and size of the industry, and the principles of transparency and consumer representation should be upheld."  Thomas Cheng, Chairman of the Council's Competition Policy Committee, and Kelvin Kwok, were members of the Council's working group in charge of the study.  Cheng was quoted as stating "It is our sincere hope that the study, from consumer perspective, will provide an important and comprehensive collective set of views to stimulate a structure discussion to advise the Government on the most suitable way forward."  Click the relevant link to download the full report, executive summary, press release or presentation slides.  To listen to Cheng's interview on RTHK's Backchat on 8 December 2014, click here.