The Question of the Applicable Law in Cross-Border Claims on Product Liability: Reflections from India

Abstract

The blurring of international barriers has impacted the nature and complexity of tortious claims and, in particular, those concerning product liability. Products manufactured in one country are often sold or used in another State – and there is often a separation in time and space between the occurrence of the harmful behaviour the resultant injury. For this reason, countries across the globe have increasingly considered it inappropriate to subject such claims to the same mechanism to identify the governing law that applies to other tortious claims of different nature such as negligence, nuisance or defamation. The EU, the UK, Australia, Canada, and India’s BRICS partners – Russia and China – are examples of legal systems that have developed a special conflict of law rules on the applicable law in product liability claims. In contrast, the principles of Indian private international law do not contain any special rule. The applicable law is determined on the basis of a uniform principle that extends to all cross-border disputes on tort. The paper provides a critical evaluation of the mechanism to identify the applicable law in international disputes on product liability. It highlights the predicaments in extending the uniform rule to product liability claims and demonstrates how it debilitates access to justice and is not suitable for disputes that arise from accidents caused by products such as autonomous vehicles, which incorporate new technology. Consequently, the paper suggests workable solutions to develop the Indian conflict-of-law rules on the subject.