From menu to misuse The case for regulating unfair terms in online food delivery services in Malaysia

The online food delivery services industry has enabled restaurants and delivery riders (“Non-Consumer Users”) to access wider markets through digital platforms. However, adhesion contracts imposed by online platforms often contain unfair terms that allow, for instance, unilateral changes and unilateral account termination. Unlike consumers, the Non-Consumer Users in Malaysia have no statutory protection under the Malaysian Consumer Protection Act 1999.
This thesis explores whether the time has come for Malaysia to adopt a dedicated unfair terms legislation to protect the Non-Consumer Users. This central question is addressed by first analysing the theory of vulnerability, to ascertain how the Non-Consumer Users are, to an extent similar to consumers, exposed to unfair terms due to, amongst others, their weaker bargaining power. The choice to utilise this concept as an entry point is helpful to establish a framework that reveals how contracting parties can be exposed to harm by stronger counterparties through unfair terms, regardless of their legal status or classification.
Having argued that the Non-Consumer Users are, to a certain extent, theoretically vulnerable against the imposition of unfair terms, the adhesion contracts imposed by Grab and Shopee are then examined. The examination revealed the existence of multiple types of terms that may be regarded as unfair, tilting the contractual balance substantially in favour of these Malaysian platforms. Given the absence of a dedicated unfair terms legislation within this specific industry, this thesis further evaluates whether existing Malaysian legal instruments (statutory or otherwise) may adequately address these predicaments. The findings reveal significant doctrinal and institutional limitations, underscoring the need for a systematic statutory framework to protect the Non-Consumer Users.