CONVENTION ON THE LAW APPLICABLE TO PRODUCTS LIABILITY
(Concluded 2 October 1973)
The States
signatory to the present Convention,
Desiring to
establish common provisions on the law applicable, in international cases, to
products liability,
Have resolved to
conclude a Convention to this effect and have agreed upon the following
provisions:
Article 1
This Convention
shall determine the law applicable to the liability of the manufacturers and
other persons specified in Article 3 for damage caused by a product, including
damage in consequence of a misdescription of the product or of a failure to
give adequate notice of its qualities, its characteristics or its method of
use.
Where the
property in, or the right to use, the product was transferred to the person
suffering damage by the person claimed to be liable, the Convention shall not
apply to their liability inter se.
This Convention
shall apply irrespective of the nature of the proceedings.
Article 2
For the purposes
of this Convention -
a) the
word "product" shall include natural and industrial products, whether
raw or manufactured and whether movable or immovable;
b) the word "damage"
shall mean injury to the person or damage to property as well as economic loss;
however, damage to the product itself and the consequential economic loss shall
be excluded unless associated with other damage;
c) the word "person"
shall refer to a legal person as well as to a natural person.
Article 3
This Convention
shall apply to the liability of the following persons -
(1)
manufacturers of a finished product or of a component part;
(2) producers of a natural product;
(3) suppliers of a product;
(4) other persons, including repairers and warehousemen, in the commercial
chain of preparation or distribution of a product.
It shall also
apply to the liability of the agents or employees of the persons specified
above.
Article 4
The applicable
law shall be the internal law of the State of the place of injury, if that
State is also -
a) the
place of the habitual residence of the person directly suffering damage, or
b) the principal place of business
of the person claimed to be liable, or
c) the place where the product was
acquired by the person directly suffering damage.
Article 5
Notwithstanding
the provisions of Article 4, the applicable law shall be the internal law of
the State of the habitual residence of the person directly suffering damage, if
that State is also -
a) the
principal place of business of the person claimed to be liable, or
b) the place where the product was
acquired by the person directly suffering damage.
Article 6
Where neither of
the laws designated in Articles 4 and 5 applies, the applicable law shall be
the internal law of the State of the principal place of business of the person
claimed to be liable, unless the claimant bases his claim upon the internal law
of the State of the place of injury.
Article 7
Neither the law
of the State of the place of injury nor the law of the State of the habitual
residence of the person directly suffering damage shall be applicable by virtue
of Articles 4, 5 and 6 if the person claimed to be liable establishes that he
could not reasonably have foreseen that the product or his own products of the
same type would be made available in that State through commercial channels.
Article 8
The law
applicable under this Convention shall determine, in particular -
(1) the basis
and extent of liability;
(2) the grounds for exemption from liability, any limitation of liability and
any division of liability;
(3) the kinds of damage for which compensation may be due;
(4) the form of compensation and its extent;
(5) the question whether a right to damages may be assigned or inherited;
(6) the persons who may claim damages in their own right;
(7) the liability of a principal for the acts of his agent or of an employer
for the acts of his employee;
(8) the burden of proof insofar as the rules of the applicable law in respect
thereof pertain to the law of liability;
(9) rules of prescription and limitation, including rules relating to the
commencement of a period of prescription or limitation, and the interruption
and suspension of this period.
Article 9
The application
of Articles 4, 5 and 6 shall not preclude consideration being given to the
rules of conduct and safety prevailing in the State where the product was
introduced into the market.
Article 10
The application
of a law declared applicable under this Convention may be refused only where
such application would be manifestly incompatible with public policy ("ordre public").
Article 11
The application
of the preceding Articles shall be independent of any requirement of
reciprocity. The Convention shall be applied even if the applicable law is not
that of a Contracting State.
Article 12
Where a State
comprises several territorial units each of which has its own rules of law in
respect of products liability, each territorial unit shall be considered as a
State for the purposes of selecting the applicable law under this Convention.
Article 13
A State within
which different territorial units have their own rules of law in respect of
products liability shall not be bound to apply this Convention where a State
with a unified system of law would not be bound to apply the law of another
State by virtue of Articles 4 and 5 of this Convention.
Article 14
If a Contracting
State has two or more territorial units which have their own rules of law in
respect of products liability, it may, at the time of signature, ratification,
acceptance, approval or accession, declare that this Convention shall extend to
all its territorial units or only to one or more of them, and may modify its
declaration by submitting another declaration at any time.
These
declarations shall be notified to the Ministry of Foreign Affairs of the
Netherlands, and shall state expressly the territorial units to which the
Convention applies.
Article 15
This Convention
shall not prevail over other Conventions in special fields to which the
Contracting States are or may become Parties and which contain provisions
concerning products liability.
Article 16
Any Contracting
State may, at the time of signature, ratification, acceptance, approval or
accession, reserve the right -
(1) not to apply
the provisions of Article 8, sub-paragraph 9;
(2) not to apply this Convention to raw agricultural products.
No other
reservations shall be permitted.
Any Contracting
State may also when notifying an extension of the Convention in accordance with
Article 19, make one or more of these reservations, with its effect limited to
all or some of the territories mentioned in the extension.
Any Contracting
State may at any time withdraw a reservation it has made; the reservation shall
cease to have effect on the first day of the third calendar month after
notification of the withdrawal.
Article 17
This Convention
shall be open for signature by the States which were Members of the Hague
Conference on Private International Law at the time of its Twelfth Session.
It shall be
ratified, accepted or approved and the instruments of ratification, acceptance
or approval shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Article 18
Any State which
has become a Member of the Hague Conference on Private International Law after
the date of its Twelfth Session, or which is a Member of the United Nations or
of a specialised agency of that Organisation, or a Party to the Statute of the
International Court of Justice may accede to this Convention after it has
entered into force in accordance with Article 20.
The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Article 19
Any State may,
at the time of signature, ratification, acceptance, approval or accession,
declare that this Convention shall extend to all the territories for the
international relations of which it is responsible, or to one or more of them.
Such a declaration shall take effect on the date of entry into force of the
Convention for the State concerned.
At any time
thereafter, such extensions shall be notified to the Ministry of Foreign
Affairs of the Netherlands.
Article 20
This Convention
shall enter into force on the first day of the third calendar month after the
deposit of the third instrument of ratification, acceptance or approval
referred to in the second paragraph of Article 17.
Thereafter the
Convention shall enter into force
- for each State
ratifying, accepting or approving it subsequently, on the first day of the
third calendar month after the deposit of its instrument of ratification,
acceptance or approval;
- for each acceding State, on the first day of the third calendar month after
the deposit of its instrument of accession;
- for a territory to which the Convention has been extended in conformity with
Article 19, on the first day of the third calendar month after the notification
referred to in that Article.
Article 21
This Convention
shall remain in force for five years from the date of its entry into force in
accordance with the first paragraph of Article 20, even for States which have
ratified, accepted, approved or acceded to it subsequently.
If there has
been no denunciation, it shall be renewed tacitly every five years.
Any denunciation
shall be notified to the Ministry of Foreign Affairs of the Netherlands, at
least six months before the expiry of the five year period. It may be limited
to certain of the territories to which the Convention applies.
The denunciation
shall have effect only as regards the State which has notified it. The
Convention shall remain in force for the other Contracting States.
Article 22
The Ministry of
Foreign Affairs of the Netherlands shall notify the States Members of the
Conference and the States which have acceded in accordance with Article 18, of
the following -
(1) the
signatures and ratifications, acceptances and approvals referred to in Article
17;
(2) the date on which this Convention enters into force in accordance with
Article 20;
(3) the accessions referred to in Article 18 and the dates on which they take
effect;
(4) the extensions referred to in Article 19 and the dates on which they take
effect;
(5) the reservations, withdrawals of reservations and declarations referred to
in Articles 14, 16 and 19;
(6) the denunciations referred to in Article 21.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 2nd day of October, 1973, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Netherlands, and of which a certified
copy shall be sent, through the diplomatic channel, to each of the States
Members of the Hague Conference on Private International Law at the date of its
Twelfth Session.
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