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Right now, the courts and the Tribunal in Malaysia can help consumers on the off chance that they are put in an unequal bargaining position not just by reference to the doctrine of inequality of bargaining power but also by statutory provisions in Part IIIA of the Consumer Protection Act 1999 (CPA). Maybe at this stage it is auspicious to state that Part IIIA of the CPA envelops the since quite a while ago questioned regulation of doctrine of inequality of bargaining power. This conveys us to the following issue, which is whether doctrine of inequality of bargaining power can in any case be utilized after the Amendment Act 2010 came into force, recalling that area 3 of the Civil Law Act 1956 permits the utilization of common law just without any written law. Consequently the question postured before by the Court of Appeal in [ CITATION Saa01 \l 1033 ] and American International Assurance talked about above on whether the doctrine of inequality of bargaining power is a piece of Malaysian law is presently much more significant. No enactment in Malaysia accommodates such a doctrine and there is no Act like UCTA1. Be that as it may, the Malaysian Contracts Act 1950 ("CA"), perceives the idea of undue impact, which is to some degree smaller in extension when contrasted with the teaching of doctrine of inequality of bargaining power.2 According to Mason J in the Australian High Court instance of Commercial Bank of Australia Ltd v Amadio3, the will of the innocent party is not free or deliberate where there is undue influence, and for the most part emerges when parties enter into contract. The doctrine of inequality of bargaining power, then again, emerges where the more grounded parties exploits in an unconscionable way of the weaker party's position to further his own particular advantages, paying little heed to whether the weaker party's will is autonomous or deliberate. This could emerge anytime in the contract. In the case of Saad4, Gopal Sri Ram raised two questions on the doctrine of inequality of bargaining power. First, does our law recognizes the doctrine of inequality of bargaining power? And then what is the nature and the scope of the doctrine?5 For the first question, Gopal Sri Ram held that, we ought to perceive the wider doctrine of inequality of bargaining power. We could embrace the English doctrine of unconscionability in toto. That is a decision that is accessible to us since section 3 of Civil Law Act allowed the use of common law6. As for the second raised 1 Unfair Contract Terms Act 1977 2 http://www.christopherleeco.com/wp3/?p=746 3 [1983] 152 CLR 447 4 Saad Bin Marwi v Chan Hwan Hua [2001] 3 CLJ 98 5 http://www.christopherleeco.com/wp3/?p=746 6 S3 Civil Law Act 1956

question, Gopal Sri Ram said that, the English principle could be embraced, however connected in an expansive and liberal route as in Canada. The Consumer Protection Act does not define 'unconscionable, abusive and cruel' terms or the conditions in which every will arise. For that, courts and tribunals ought to allude to the earlier legal choices as they are bound by stare decisis in interpreting what sums to unconscionable, severe and brutal terms. Subsequently, it is contended that the doctrine of inequality of bargaining power is the tradition that must be adhered to and ought to keep on being connected by courts and tribunals. Another hostile and unsettled issue is with respect to the degree of ward of the Tribunal for Consumer Claims which has been set up under the CPA to mediate purchaser dissensions. The Tribunal for Consumer Claims is an independent body.7The Tribunals functions under The Ministry of Domestic Trade, Co- Operative and Consumerism. The initial objective of this Tribunal is to provide an alternative forum for consumers to file claims in a simple, cheaper and fastest way. 8 The Tribunal has the jurisdiction to hear any claim any claims in respect of any matter within the jurisdiction under the Act. The total amount of claim should not exceed RM 25,000. 9 If claim exceeding RM25,000 can't be brought before the Tribunal then normally parties ought to be permitted to bring those cases for settling under the steady gaze of the courts. This ought to take care of the issue if the court would have permitted the complainant to depend on unfair contract provisions contained in the Part IIIA. In any case, if the contention that contracts the estimation of which exceeds RM25,000 are not viewed as 'consumer contracts' is acknowledged, then on what ground could the court permit the complainant to depend on the Part IIIA, as it applies just to 'consumer contracts'? It is presented that in the CPA visualized that the parties ought to have been permitted to bring their cases either before the court of relevant jurisdiction (magistrates’ court) or the Tribunal10. Section 104 prohibits the jurisdiction of the court if the case is stopped with the Tribunal and the Tribunal has the jurisdiction to hear it 'unless the procedures before the court were initiated before the case was held up with the Tribunal'.As such, if the petitioner has chosen to scrutinize the fairness of the term in the consumer contract before the magistrates’ court and not before the Tribunal, that is permitted by section 104 of the CPA. The Tribunal does not have selective jurisdiction over those cases. 7 S85 Part XII, Consumer Protection Act 1999 8 https://ttpm.kpdnkk.gov.my/portal/index.php/en/ 9 S98 Consumer Protection Act 1999 10 S104 Consumer Protection Act 1999

Section 104 keeps the duplicity of procedures however it doesn't accommodate the Tribunal's restrictive jurisdiction over the claims. This conclusion is made if the expressions of the statute are interpreted literally. Another method for taking a gander at it would be by utilizing the purposive approach and asking “What is the reason behind the foundation of the Tribunal?” Undeniably, the Tribunal was built up to facilitate the heap of cases taken by the courts and to give speedier and more proficient determination of consumer complaints. If one somehow happened to acknowledge the recommendation that the Tribunal has restrictive purview over customer contracts and that they are the agreements the estimation of which does not exceed RM25,000 (roughly £4,700) then, all things considered, the use of Part IIIA turns out to be essentially constrained. As such, the statutory provisions on the unfair contact terms would not manage the cost of any security to the consumers whose claims are exceeding RM25,000. This is a genuine confinement. To make things much more muddled, the Tribunal does not have jurisdiction to adjudicate the claims emerging from personal injury or death. 11To place it in context, if the consumer were to sue the manufacturer for individual damage endured subsequently of utilizing the last's faulty item and if the maker depended on the exclusion condition which barred the obligation for carelessness howsoever brought about, all things considered the customer ought to have been permitted to contend that such exception clause is substantively unfair. In this Part, where a court or the Tribunal reaches the conclusion, having respect to section 24C and 24D that a contract or a term of a contract is either procedurally or substantively unfair or both, the court or the Tribunal may pronounce the contract or the term of the agreement as unenforceable or void and the court may give judgment12, and the Tribunal may make a honor as accommodated under section 112 of this Act.

Consequently, other than pronouncing the criticized uncalled for term or contract as unfair, the Tribunal may likewise grant remedies gave under section 112. In any case, section 112(3) explicitly gives that the Tribunal does not have control '...to grant any harms for any nonfinancial misfortune or harm'. In this way, ought to the consumer guarantee remuneration or 11 S80 of CPA 1999 12 S24C & S24D of CPA 1999

harms for the individual damage endured (as is ordinarily done in comparable cases), the Tribunal would have no jurisdiction to grant any kind of cure in type of damages13. All things considered, one may properly contemplate and solicit what is the reason from proclaiming the term as unenforceable or void if cure can't be given? This question conveys us to the second approach, which is more intelligent of the words contained in area 99(3), which expressly prohibits the Tribunal's purview to 'manage a claim emerging from personal injury or death'. In this manner, perusing the provision literally, the Tribunal does not have purview not exclusively to concede harms for any non-financial misfortune or harm as expressed in section 112(3) of the CPA additionally to bargain or pronounce any term of contract in such a claim as unenforceable. Notwithstanding which approach one may receive, it is argued that the parties in these circumstances ought to be permitted to present their claim before the court and afterward the court ought to be permitted to apply Part IIIA of the CPA. In any case, it should be noticed that this suggestion would place such consumers in a disadvantageous position. There is dependably a hazard that the court may decline to permit parties to depend on the contract of Part IIIA if the claim exceeding RM25,000, as all things considered the consumer’s contract would not be entirely viewed as 'customer contract' enclosed by the CPA14. So, the consumer would need to bring about legitimate charges for the representation and the due lawful process before the court. Despite the fact that the recently sanctioned Part IIIA of the CPA may have some uncertain provisions, it is an appreciated advancement and a move towards aligning Malaysian consumer laws with those of many created nations. The division of unfairness by sections 24C and 24D into procedural unfairness and substantive unfairness guarantees that the arrangement procedure, and also the result of it paving the way to the development of an agreement, must be reasonable and quite recently15. Any noteworthy irregularity in the rights and commitments between the contracting parties would render the contract or a term of a contract unfair. Thus, the contract or a term of a contract can be broadcasted as unenforceable or void.

13 S81 of CPA 1999 14 S82 of CPA 1999 15 http://www.thenct.org.za/judgments...