Crossborder product liability

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Cross-border product liability

• The Rome II Regulation on the law applicable to
  non-contractual obligations
• Bart Volders

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Contents

• 1. Why conflict of laws in matters of product
  liability?
• 2. Rome II and conflict of laws for
  non-contractual obligations general overview
• 3. Product liability and Rome II

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1. Why conflict of laws in matters of product
liability?

• 1.1 Product liability is a matter on which there
  is already a substantial degree of
  harmonisation.
• 1.2 However, the laws of the Member States
  still contain substantial differences.

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1.1 A substantial degree of harmonisation as a
result of the 1985 Product Liability Directive

• Its basic principle the producer shall be
  liable for damage caused by a defect in its
  product (strict liability).
• Defectiveness in relation to a products
  safety which should apply to that product in
  those circumstances.

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1.2. Substantial differences between the laws of
the various Member States continue to exist

• The 1985 Product Liability Directive does not
  harmonise (examples)
• - level of damages that may be awarded as
  compensation under national law
• - national laws are to govern suspension or
  interruption of the limitation period
• - compensation for pain and suffering.
• Result conflict of laws rules are important!

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2. Rome II and conflict of laws for
non-contractual obligations

• 2.1 What is Rome II?
• 2.2 When, and to whom, will Rome II apply?
• 2.3 What is its purpose and practical effect?

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2.1. What is Rome II?

• Rome II is an EU Regulation which governs the
  law to be applied to non-contractual obligations
  arising between parties in most civil and
  commercial matters.
• - Rome II does not seek to harmonise the
  substantive laws of each Member State.
• - It does aim to ensure that a uniform approach
  is adopted by all Member States when determining
  what law is applicable.

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2.2. When, and to whom, will it apply?

• It applies from 11 January 2009 to every court
  of an EU Member State (with the exception of
  Denmark).
• It will impact upon most civil and commercial
  cross-border non-contractual disputes.
• It propounds a universal application.

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2.3. What is its purpose and practical effect?

• Rome II ensures uniformity throughout the
  European Union (with the exception of Denmark)
  and enhances legal certainty in cross-border
  (business) transactions.
• It will replace (within its (substantive) scope)
  national conflict of laws rules for
  non-contractual obligations.

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3. Product liability and Rome II

• 3.1 Purpose of conflict of laws rules in matters
  of product liability
• 3.2 Practical operation
• 3.3 Relationship with the 1973 Hague Product
  Liability Convention

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3.1. Purpose of conflict of laws rules in matters
of product liability

• fairly spreading the risks inherent in a modern
  high-technology society, protecting consumers
  health, stimulating innovation, securing
  undistorted competition and facilitating trade
• (preamble Rome II, consid. 20)

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3.2. Practical operation

• Choice of law (art. 14)
• Common habitual residence (art. 4.2)
• Place of distribution a cascade system of
  connecting factors a foreseeability clause
  (art. 5.1 (a-c))
• Escape clause manifestly closer connected
  (art. 5.2)
• Adjusting the applicable law public policy and
  mandatory provisions (artt. 16 and 26)

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3.3 Relationship with the 1973 Hague Product
Liability Convention

• 1973 Hague Product Liability Convention 11
  Contracting States, including 6 Member States
  (France, Luxembourg, The Netherlands, Finland,
  Spain and Slovenia)
• Article 28.1 Rome II 1973 Hague Product
  Liability Convention takes precedence over Rome
  II

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Questions?

• bart.volders_at_ua.ac.be