The Nature of Consumer Law Reforms in Developing and Transitional Countries: A Brief Literature Review

Abstract

The evolution of consumer laws in developing and transitional countries is one part of a bigger law reform project in these countries, at least since these countries launched theirs reforms with the purpose to transform their ailing economy into dynamic and modern market economies. This pattern of developments is witnessed in various developing or transitional countries, especially when the communist system collapsed in Soviet Union and Eastern Europe in late 1980s and early 1990s. The law reform projects in those countries are usually conducted under the assistance of global financial institutions such as World Bank (WB), International Monetary Fund (IMF), etc.

One of the key questions arising from this global phenomenon is how we should understand the true nature of these law reform projects?

The comparative law scholars seem quite active in offering the answers to this question. For Alan Watson and proponents of legal transplants, law reform projects (a main source for legal evolution) are, by nature or essentially, legal transplantation projects. Accordingly, legal drafters are essentially legal transplanters. In fact, as pointed out by Frederique Dahan and Janet Dine, law reform projects in today’s developing and transitional countries, especially with assistance of WB and IMF are based on the assumption that the best ways to construct the functioning market economy and democracy for these countries is to borrow models from Western established successful systems.

For Otto Kahn-Freund, Pierre Legrand, and other scholars who disagree with Alan Watson, law reform projects can not be seen as legal transplantation projects. For them, law-reform-as-transplantation projects are generally destined to fail. Law reformers have almost no ways to produce legal changes by transferring legal rules or legal ideas from other countries into their own legal systems. The use of foreign models for legal reforms in developing and transitional countries is an abuse of comparative law knowledge.

To overcome this abuse of comparative law, Seidmans and their proponents, who are also critics of Alan Watson, offer a problem-solving legislative theory for law reformers in developing and transitional countries with the hope that law reform projects should be seen as social problem-solving projects and legal drafters must be seen as inventors or tailors of legal solutions rather than transplanters of legal solutions.

So, finally, what is essentially the nature of legal reform in developing and transitional countries nowadays? Whether it is a problem-solving process or a legal transplantation process? Whether legal drafters should be seen as legal transplanters or as inventors of legal solutions? Whether legal reformers can hold both of positions, as legal transplanters and legal inventors? If so, which position will be more dominant or they are equally important? The different answers will lead to different ways of proceeding law reform projects because legal transplanters and legal inventors need substantially different skills and experiences.

Keywords: Consumer Law, Consumer Protection, Law Reform, Developing countries, Transitional Countries, Consumer Protection Law, Legal Transplant, Legal Transplantation, Legislative Theory, Seidman, Alan Watson, Pierre Legrand, Vietnam, Market Economy, Consumer Transactions