Study On The Law Applicable To Foreign-Related Products Liability

Products liability refers to a manufacturer’s or a seller’s civil compensation liability for any damages or injuries suffered by a buyer or a user as a result of a defective product. On the background of the economic globalization and the rapid development of science and technology, the transnational mobility of products increases gradually. However, foreign-related products liability disputes increase as well. Due to the lack of the relevant international unified substantive law and the big differences in products liability laws among countries, the application of law is quite important. What is more, the rules of the law applicable to foreign-related products liability will sometimes decide the effectiveness of a country’s legislation on rights protection. In China, the rules of the law applicable to foreign-related tort liability were usually applied to the foreign-related products liability cases. As this rule didn’t take into consideration the specialty and complexity of foreign-related products liability cases, it was not quite effective in solving problems and protecting rights in practice. On April1,2011, Law of the People’s Republic of China on Choice of Law for Foreign-Related Civil Relationships comes into effect, and in the Article45of the law, it firstly and clearly defined the rules of the law applicable to foreign-related products liability. It is a great advance in Chinese legislation; however, compared with some advanced countries, there are still several defects and deserving a further improvement.This thesis will introduce the definition and the necessity of the law applicable to foreign-related products liability firstly, and then, the main theories and rules of the law applicable to foreign-related products liability will be studied and the relevant legislation in China will be analyzed. The theories include the traditional one and the new one, which have three principles and four principles respectively. The traditional theories refer to the principles of "the law of the place of the tort","the law of the forum" and "a mixture of the lex fori and the lex loci delicti". The new theories refer to the principles of "the doctrine of the most significant relationship","a limited autonomy of will","in favor of the plaintiff" and "ruling out the unforeseeable factors for defendant". These theories are the cornerstone for the rules of the application of law. The typical rules include Convention on the Law Applicable to Products Liability (The Hague), Restatements of Conflict of Laws (US), Rome II (EU), etc., which are the reflection of the legislative trends and the value pursuit of this issue in the modern private international law. These rules also provide valuable examples for Chinese legislation.The Article45increases the number of the point of contact, and adopts the advanced theories in the private international law, such as the "autonomy of will","protection of the weak" and "the doctrine of the most significant relationship" etc., which enhances the protection of rights. However, the Article45doesn’t impose a limit to the "autonomy of will", and the value of the "rule of double actionability" isn’t fully exerted. Besides, whether the points of contact stipulated in Article45are comprehensive and scientific still remains to be discussed. The above shortcomings will hinder the rights protection to some degree. By analyzing the advancements and the defects of the Article45, and combining the study of the relevant theories and rules, the author will put forward the following suggestions:optimizing the point of contact, setting a limit to the "autonomy of will" and retaining the "rule of double actionability" in compensation system. The suggestions are made for the purpose of improving the legislation in the law applicable to foreign-related products liability in China.