Product Regulation And Liability Review - Clayton Utz

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ProductRegulationand LiabilityReviewFourth EditionEditorsChilton Davis Varner and Bradley W Prattlawreviews

theProduct Regulation AndLiability ReviewThe Product Regulation and Liability ReviewReproduced with permission from Law Business Research Ltd.This article was first published in The Product Regulation and Liability Review Edition 4(published in April 2017 – editors Chilton Davis Varner and Bradley W Pratt)For further information please emailNick.Barette@thelawreviews.com

ProductRegulationand LiabilityReviewFourth EditionEditorsChilton Davis Varner and Bradley W Prattlawreviews

PUBLISHERGideon RobertonSENIOR BUSINESS DEVELOPMENT MANAGERNick BaretteBUSINESS DEVELOPMENT MANAGERSFelicity Bown, Thomas LeeSENIOR ACCOUNT MANAGERJoel WoodsACCOUNT MANAGERSPere Aspinall, Jack Bagnall, Sophie Emberson,Sian Jones, Laura LynasMARKETING AND READERSHIP COORDINATORRebecca MogridgeEDITORIAL COORDINATORGavin JordanHEAD OF PRODUCTIONAdam MyersPRODUCTION EDITORMartin RoachSUBEDITORJanina GodowskaCHIEF EXECUTIVE OFFICERPaul HowarthPublished in the United Kingdomby Law Business Research Ltd, London87 Lancaster Road, London, W11 1QQ, UK 2017 Law Business Research Ltdwww.TheLawReviews.co.ukNo photocopying: copyright licences do not apply.The information provided in this publication is general and may not apply in a specific situation, nordoes it necessarily represent the views of authors’ firms or their clients. Legal advice should alwaysbe sought before taking any legal action based on the information provided. The publishers acceptno responsibility for any acts or omissions contained herein. Although the information provided isaccurate as of April 2017, be advised that this is a developing area.Enquiries concerning reproduction should be sent to Law Business Research, at the address above.Enquiries concerning editorial content should be directedto the Publisher – gideon.roberton@lbresearch.comISBN 978-1-910813-52-2Printed in Great Britain byEncompass Print Solutions, DerbyshireTel: 0844 2480 112

lawreviewsTHE MERGERS AND ACQUISITIONS REVIEWTHE RESTRUCTURING REVIEWTHE PRIVATE COMPETITION ENFORCEMENT REVIEWTHE DISPUTE RESOLUTION REVIEWTHE EMPLOYMENT LAW REVIEWTHE PUBLIC COMPETITION ENFORCEMENT REVIEWTHE BANKING REGULATION REVIEWTHE INTERNATIONAL ARBITRATION REVIEWTHE MERGER CONTROL REVIEWTHE TECHNOLOGY, MEDIA ANDTELECOMMUNICATIONS REVIEWTHE INWARD INVESTMENT ANDINTERNATIONAL TAXATION REVIEWTHE CORPORATE GOVERNANCE REVIEWTHE CORPORATE IMMIGRATION REVIEWTHE INTERNATIONAL INVESTIGATIONS REVIEWTHE PROJECTS AND CONSTRUCTION REVIEWTHE INTERNATIONAL CAPITAL MARKETS REVIEWTHE REAL ESTATE LAW REVIEWTHE PRIVATE EQUITY REVIEWTHE ENERGY REGULATION AND MARKETS REVIEWTHE INTELLECTUAL PROPERTY REVIEWTHE ASSET MANAGEMENT REVIEWTHE PRIVATE WEALTH AND PRIVATE CLIENT REVIEWTHE MINING LAW REVIEWTHE EXECUTIVE REMUNERATION REVIEWTHE ANTI-BRIBERY AND ANTI-CORRUPTION REVIEWTHE CARTELS AND LENIENCY REVIEW

THE TAX DISPUTES AND LITIGATION REVIEWTHE LIFE SCIENCES LAW REVIEWTHE INSURANCE AND REINSURANCE LAW REVIEWTHE GOVERNMENT PROCUREMENT REVIEWTHE DOMINANCE AND MONOPOLIES REVIEWTHE AVIATION LAW REVIEWTHE FOREIGN INVESTMENT REGULATION REVIEWTHE ASSET TRACING AND RECOVERY REVIEWTHE INSOLVENCY REVIEWTHE OIL AND GAS LAW REVIEWTHE FRANCHISE LAW REVIEWTHE PRODUCT REGULATION AND LIABILITY REVIEWTHE SHIPPING LAW REVIEWTHE ACQUISITION AND LEVERAGED FINANCE REVIEWTHE PRIVACY, DATA PROTECTION AND CYBERSECURITY LAW REVIEWTHE PUBLIC-PRIVATE PARTNERSHIP LAW REVIEWTHE TRANSPORT FINANCE LAW REVIEWTHE SECURITIES LITIGATION REVIEWTHE LENDING AND SECURED FINANCE REVIEWTHE INTERNATIONAL TRADE LAW REVIEWTHE SPORTS LAW REVIEWTHE INVESTMENT TREATY ARBITRATION REVIEWTHE GAMBLING LAW REVIEWTHE INTELLECTUAL PROPERTY AND ANTITRUST REVIEWTHE REAL ESTATE M&A AND PRIVATE EQUITY REVIEWTHE SHAREHOLDER RIGHTS AND ACTIVISM REVIEWTHE ISLAMIC FINANCE AND MARKETS LAW REVIEWTHE ENVIRONMENT AND CLIMATE CHANGE LAW REVIEWTHE CONSUMER FINANCE LAW REVIEW

ACKNOWLEDGEMENTSThe publisher acknowledges and thanks the following law firms for their learned assistancethroughout the preparation of this book:AFE BABALOLA SAN & CO (EMMANUEL CHAMBERS)AZB & PARTNERSBAKER MCKENZIE WONG & LEOWCLAYTON UTZCMS RUSSIAESTUDIO BECCAR VARELAHEUKING KÜHN LÜER WOJTEKINTUITYKING & SPALDING LLPKING & WOOD MALLESONSKYRIAKIDES GEORGOPOULOS LAW FIRMLINKLATERS LLPMATTOS FILHO, VEIGA FILHO, MARREY JR E QUIROGA ADVOGADOSNISHIMURA & ASAHIPAUL HASTINGS (EUROPE) LLPTHE PRATT LAW FIRM, PCSEPULVADO & MALDONADO, PSCS HOROWITZ & COURÍA MENÉNDEZVIEIRA DE ALMEIDA & ASSOCIADOS – SOCIEDADE DE ADVOGADOS, RLi

WEIGHTMANS LLPWENGER & VIELI AGWOLF THEISS RECHTSANWÄLTE GMBH & CO KG

CONTENTSPREFACE vChilton Davis Varner and Bradley W PrattChapter 1ARGENTINA 1Ignacio Flores and Gonzalo García DelatourChapter 2AUSTRALIA 11Colin Loveday and Sheena McKieChapter 3AUSTRIA 24Eva Spiegel and Gabriele HintsteinerChapter 4BELGIUM 35Joost Verlinden and Gert-Jan HendrixChapter 5BRAZIL 45Fabio Teixeira Ozi and Murilo Castineira BrunnerChapter 6CHINA 56Ariel Ye, Yue Dai and Xinyu LiChapter 7ENGLAND & WALES 66Fiona EastChapter 8FRANCE 77Christophe HéninChapter 9GERMANY 91Christoph WagnerChapter 10GREECE 104Anthony B Hadjioannou and Maria S Kanellopoulouiii

ContentsChapter 11INDIA 114Vivek Bajaj and Annie PhilipChapter 12ISRAEL 124Avi Ordo and Moran KatzChapter 13ITALY 135Francesca Petronio and Francesco FalcoChapter 14JAPAN 146Akihiro Hironaka, Yutaro Kawabata and Yui TakahataChapter 15NIGERIA 157Afe Babalola SAN,Chapter 16PORTUGAL 169Ana Lickfold de Novaes e Silva and Pedro Pires FernandesChapter 17PUERTO RICO 179Albéniz Couret-Fuentes and Elaine M Maldonado-MatíasChapter 18RUSSIA 190Sergey YuryevChapter 19SINGAPORE 200Lim Ren JunChapter 20SPAIN 213Alex Ferreres Comella and Cristina Ayo FerrándizChapter 21SWITZERLAND 224Frank Scherrer, Caroline Müller Tremonte and Caspar HummChapter 22UNITED STATES 233Chilton Davis Varner and Bradley W PrattAppendix 1ABOUT THE AUTHORS 257Appendix 2CONTRIBUTING LAW FIRMS’ CONTACT DETAILS 271iv

PREFACEIn today’s global economy, product manufacturers and distributors face a dizzying arrayof overlapping and sometimes contradictory laws and regulations around the world. Abasic familiarity with international product liability is essential to doing business in thisenvironment. An understanding of the international framework will provide thoughtfulmanufacturers and distributors with a strategic advantage in this increasingly competitivearea. This treatise sets out a general overview of product liability in key jurisdictions aroundthe world, giving manufacturers a place to start in assessing their potential liability andexposure.Readers of this publication will see that each country’s product liability lawsreflect a delicate balance between protecting consumers and encouraging risk-taking andinnovation. This balance is constantly shifting through new legislation, regulations, treaties,administrative oversight and court decisions. But the overall trajectory seems clear: as globalwealth, technological innovation and consumer knowledge continue to increase, so will thecost of product liability actions.This edition reflects a few of these trends from 2016. Notably, many jurisdictions saw anincrease in both mandatory and voluntary product recalls across various industries. In India,for instance, several global car manufacturers initiated voluntary recalls of vehicles owingto various product defects, such as emissions systems that violated environmental norms.This unprecedented rise in voluntary vehicle recalls spawned legislation known as the MotorVehicles Amendment Bill, currently pending approval in the Indian Parliament, that wouldfor the first time mandate vehicle recalls under certain conditions. Several jurisdictions alsosaw a proliferation of class actions in product liability contexts. In July, the Collective ClaimsAct came into force in Japan, enabling small consumer claims to be aggregated and pursuedby ‘certified organisations', which are required to disburse to consumers 50 per cent or moreof the claims recovered from business operators. This edition also highlights how certaincountries’ product liability laws have grappled with novel issues in the modern economy,ranging from e-commerce (e.g., the Brazilian Superior Court of Justice’s conclusion thatinternet search providers cannot be held liable for defective products marketed through theirwebsites) to emerging technologies (e.g., Australia’s interim ban on self-balancing scooters or‘hoverboards’). Although these changes and trends may be valuable in their own right, theyalso create a need for greater vigilance on the part of manufacturers, distributors and retailers.This edition covers 22 countries and territories and includes a high-level overviewof each jurisdiction’s product liability framework, recent changes and developments, and alook forward at expected trends. Each chapter contains a brief introduction to the country’sproduct liability framework, followed by four main sections: regulatory oversight (describingthe country’s regulatory authorities or administrative bodies that oversee some aspect ofv

Prefaceproduct liability); causes of action (identifying the specific causes of action under whichmanufacturers, distributors or sellers of a product may be held liable for injury caused by thatproduct); litigation (providing a broad overview of all aspects of litigation in a given country,including the forum, burden of proof, potential defences to liability, personal jurisdiction,discovery, whether mass tort actions or class actions are available and what damages maybe expected); and the year in review (describing recent, current and pending developmentsaffecting various aspects of product liability, such as regulatory or policy changes, significantcases or settlements and any notable trends).Whether the reader is a company executive or a private practitioner, we hope that thisedition will prove useful in navigating the complex world of product liability and alerting youto important developments that may affect your business.We wish to thank all of the contributors who have been so generous with their timeand expertise. They have made this publication possible. We also wish to thank our colleaguesMadison Kitchens and Jordan Raymond, who have been invaluable in assisting us in oureditorial duties.Chilton Davis Varner and Bradley W PrattKing & Spalding and The Pratt Law FirmUnited StatesMarch 2017vi

Chapter 2AUSTRALIAColin Loveday and Sheena McKie1IINTRODUCTION TO THE PRODUCT LIABILITY FRAMEWORKAustralia’s product liability laws are a mixture of the common law and legislation.A person who claims to have been injured or who has otherwise suffered loss or damagecaused by a product may commence an action for compensation on the following bases:athe common law tort of negligence;bcontract; andcbreach of a number of consumer protection legislative provisions, the main one beingthe Australian Consumer Law (ACL).The ACL is a federal (also known as Commonwealth) law that came into effect on1 January 2011. It applies to transactions occurring on or after that date. The ACL replacesa collection of federal and state consumer protection legislation with a single law that appliesin all jurisdictions. The ACL is found in Schedule 2 to the Competition and Consumer Act2010 (Cth) (CCA), which until 2011 was the Trade Practices Act 1974 (TPA). The consumerprotection regime formerly found in the TPA has been transferred to the ACL and, in doingso, has been substantially modified.The ACL imposes statutory obligations including a strict liability regime for productsthat are said to have a ‘safety defect’ and statutory guarantees imposed on suppliers andmanufacturers. State fair trading legislation exists to provide for the application of theACL in each of the states and territories, as well as covering some additional areas such asindustry-specific regulation.Typically, product liability claims for damage to persons will involve multiple causes ofaction variously based on negligence and breaches of numerous provisions of the ACL.IIREGULATORY OVERSIGHTIn broad terms, there are three federal regulatory authorities in Australia that oversee areasrelevant to product liability issues affecting consumers.The Australian Competition and Consumer Commission (ACCC) has a number ofimportant investigation and enforcement powers under the ACL. Relevantly, the ACCC isempowered to institute proceedings in relation to certain provisions of Parts 3-5 (defective1Colin Loveday is a partner and Sheena McKie is a senior associate at Clayton Utz. Colin Loveday wishes toacknowledge the considerable contribution of Larissa Cook in preparing previous editions of this chapterand to thank her for her assistance.11

Australiagoods actions) and 5-4 (remedies relating to guarantees), either in its own right or on behalfof those who have suffered or are likely to suffer loss as a result of contraventions of the ACL.The ACCC is also responsible for overseeing product recalls and the mandatory reportingof deaths, serious injuries or illnesses associated with consumer goods (and has publishedextensive guidelines addressing both of those requirements). The penalty for non-compliancewith either is substantial.The ACL requires that a person taking action to recall consumer goods must notifythe Minister (practically achieved by notifying the ACCC) within two days of taking thataction. In practice, however, the ACCC (and any applicable industry-specific or state-basedregulator) will expect to be engaged at an early juncture before steps to recall goods (includingadvertising a recall) have been taken. Unless the ACCC is properly notified and satisfiedwith the strategy adopted by the manufacturer or distributor, it takes a very proactive role inmanaging product recalls.In addition, the mandatory reporting requirement mentioned above requires a supplierto notify the Minister (usually via an online form) within two days of becoming aware ofany death, serious injury or serious illness (as defined in the legislation) associated with orthought to be caused by use or foreseeable misuse of a consumer good.The Therapeutic Goods Administration (TGA) is Australia’s regulatory agency fortherapeutic goods including medicines, medical devices, blood and blood products. The TGAadministers the Therapeutic Goods Act 1989 (Cth), and regulates therapeutic goods through:pre-market assessment; post-market monitoring and enforcement of standards; licensing ofAustralian manufacturers; and verifying overseas manufacturers’ compliance with the samestandards as their Australian counterparts.The Australian Securities and Investments Commission (ASIC) oversees Australiancorporations and financial markets. In particular, ASIC regulates the provision of consumercredit, financial products and financial services; however, this chapter will focus on productliability for non-financial consumer products.In addition to the above, there are a number of state-based regulators with responsibilityfor administration of industry-specific regulation, for example. food or consumer electricalgoods.IIICAUSES OF ACTIONThere is a range of potential causes of action under which manufacturers, distributors orsellers can be held liable for injury to consumers.iForumIt is well accepted that the manufacturer of goods owes a duty of care to the purchaser anduser to safeguard them against the foreseeable risks of injury when using the product asintended.Retailers, importers and distributors are not expected to test or inspect products thatthe manufacturer delivers in sealed containers that would not normally be opened until theyreach the ultimate consumer. However, in these circumstances, the retailer still has a duty toguard against those dangers known to it or that it has reasonable grounds to expect.To the extent that any party in the supply chain adds to or modifies a product includingpackaging and labelling, that party will also owe a common law duty to the purchaser anduser in respect of those changes.12

AustraliaiiContractParties are free to enter into contracts on terms agreed between them, subject to terms impliedinto the contract by common law or statute.Contractual remedies are only available to parties to the contract. Since, in mostcircumstances, it is the retailer that will have a contractual relationship with the purchaser,the retailer will bear the liability for any defect or fault in accordance with the expressand implied terms of the contract of sale. However, this does not prevent a retailer fromconsequently seeking contractual remedies from other parties in the supply chain with whichit has a contractual relationship.The importance of contract as a cause of action in product liability claims hasdiminished in recent times as a result of the growth of the statutory causes of action. Since1978, consumer protection provisions have existed to allow for claims where there was noprivity of contract, whi

the product regulation and liability review the shipping law review the acquisition and leveraged finance review the privacy, data protection and cybersecurity law review the public-private partnership law review the transport finance law review the securities litigation review the lending and secured finance review the international trade law .

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