The technical and legal requirements on products in the commercial and private area are increasing steadily. At the same time, due to globalization, a raising number of products is exported to markets outside the EU that have their own requirements on products and can bear particular liability risks. Thus the possible sources of errrors in planning, producing and distributing products also multiply. The product liability itself and especially the confrontation with claims after occurrence of a product defect is only the last link in the chain from development to distribution.

Already during the phase of development and placing a new product on the market, many regulations regarding product safety have to be observed for the protection of the end consumer. Development processes have to take in view the legal standards relevant for the developed product. This applies to a business’ development department as well as to research and development service provides and co-operations.

Product safety however is not limited to the period until a product is market ready, i.e. the consistency of the product with the above named regulation as well as the proper wording of operating and assembling instructions. During the next phase of mass production the production process has to be planned while keeping such safety aspects in mind. In particular suppliers of parts and contract manufacturers face purchasers requiring quality assurance agreements to maximize the safety of the finished products. Thus the topic “product safety” is important within the entire purchasing and sales process of businesses.

In distribution finally the question arises if product liability risks are insurable. In particular big distribution partners or other commercial customers require adequate insurance for product liability and recall costs. However as not all risks of a purchase or delivery contract can be insured suppliers have to consider whether such non insurable risks could be minimized by a liability limitation clause.

In cross border cases those above mentioned aspects can result in complex questions, in particular, if the other party requires the compliance with product safety legislation in the target state or the suppliers’ insurance company is not aware of an habitual insurance construction of the target state or is alternatively not prepared to comply with such construction.

We consult in the following areas:

• Purchase and delivery contracts and quality assurance Agreements
• Research and development contracts
• Compliance with product safety laws (e.g. medical devices)
• Defensive measures in case of potential product safety issues of distributed products (e.g. recall) against the contractual partner and public authority
• Pre-trial consultancy in case of product liability (also with the product liability insurance)
• Litigation in product liability cases
• Inhouse training

Advisers

Dr. Kerstin Kern

Dr. Dirk Struckmeier