5. Subsequent developments in Thailand
Similar trends are apparent in Thailand after its PL Act was enacted in 2008. Professor Sakda Thanitcul from Chulalongkorn University notes that at least three of four claims involving various beverages were promptly settled, while two others involving automobiles were also under pressure to settle. His preliminary conclusion is that implementation of ‘the Act has clearly incentivised manufacturers to negotiate and mediate with injured consumers and, as such, injured consumers have a better chance to receive more adequate and fairer compensation’.16 In turn, such heightened risk exposure should encourage Thai suppliers to undertake greater product safety activities. This will add to pressures from business partners abroad to raise the safety of Thai consumer goods.1
Nonetheless, a total of six claims reported since the new Act was implemented on 20 February 2009 is not large, even if many more claims probably remain unreported. The number seems quite low in light not only of its pro-plaintiff provisions compared to the European Directive. Thailand also enjoys various mechanisms encouraging consumer access to justice,including enactment that year of the Consumer Case Procedure Act. That provides for court officers to assist plaintiffs who claim under the PL law, waives costs of litigation, and requires the court process to conclude within three months. However, Professor Thanitcul notes that calls to establish a specialist consumer court have not yet been successful. The Office of the Consumer Protection Board also pressed for enactment of the PL law and generally plays an active role in mediating consumer disputes. The board announced that it would file suit on behalf of a consumer injured in one of the six post-2009 claims (against a Japanese car manufacturer), but ultimately did not do so, probably because the parties then reached a settlement. Private consumer organisations also facilitate approaches to the board to resolve disputes, with some even having legal departments ready to sue on behalf of consumers.18 Yet so far this has not occurred either, perhaps because of the costs involved.
6. Policy implications
This empirical evidence suggests that enacting strict PL law is a necessary but not sufficient condition for incentivising manufacturers to produce safe consumer goods. This is especially the case in areas where sector-specific public regulation and/or media attention is reduced because there tends to be a low probability of harm, even if the potential harm suffered is high. ASEAN Member States should consider introducing strict liability statutes where this has not yet occurred, and these should also be reviewed periodically. But these substantive law protections should be complemented by broader measures to improve access to justice for harmed consumers, including:
• specialist consumer courts or tribunals
• representative actions by regulators (especially for test cases)
• ‘opt-out’ class actions (especially for efficiently aggregating smaller • claims), for example by accredited consumer groups (as in Taiwan)
• legal profession reform (increasing numbers and scope of practice, • including advertising; facilitating networking among plaintiffs’ lawyers (as in Japan, for example); liberalisation of rules on contingency fees or third-party litigation funding (as in Australia, for example).