The CE-mark and the new European approach to product law: a system of fundamental legal safety requirements and technical specification standards

European product law consists of three parts: product liability law, a general product safety regulation and an increasing number of provisions with requirements on product group level. In recent years this third part has been revised in order to speed up the completion of the European single market. This article describes the development from the negative integration of member states’ markets to the positive integration by supranational law. The CE-mark is the symbol of the new approach to the harmonization of European product safety requirements. The modular system of conformity assessment is an important characteristic of harmonization-based product law. Advantages and disadvantages of the new European product law are discussed from the perspective of ensuring the future of the consumers’ basic right to safety in an increasingly global and therefore international market.     

美国产品责任制度的博弈分析——兼论我国产品责任制度的最优战略

美国产品责任法对许多工业化国家的产品责任立法有重大影响,从某种意义上讲,其基本理论的演进是生产和消费双方博弈的结果,正是这种博弈催生了法律制度的最优战略选择。本文在分析美国产品责任法发展历史的基础上,用博弈论的方法分析了不同产品责任制度下的战略选择,并对我国产品责任法从理论基础、赔偿范围和标准等方面提出了有针对性的建议。     

The U.S./EU Beef Controversy and a Proposed Framework for Resolving Standards Disputes in International Trade

While world trading institutions such as GATT and its successor, the WTO, have made significant progress in addressing tariff barriers as well as some non‐tariff barriers, trade disputes over product standards appear to be increasing in number and intensity. Product standards refer to measures governments take to ensure that products sold in their home market meet health, safety, and quality requirements consistent with the public interest. The longstanding controversy between the European Union and the United States over the export of hormone treated beef is used as a case study to illustrate the difficulty of resolving product standards disputes.     

International Regulation on Health,Safety, and the Environment – Trends and Challenges

The international regulation of health, safety, and the environment has come far. Spurred by the United States, the United Nations established in the 1980's a tight net of rules that define minimum standards for the production and marketing of hazardous goods. The rules are for the most part non-binding. The successful conclusion of the GATT Uruguay Round now makes it imperative to balance the rules of international product safety law against the liberties demanded by international free trade. This challenge offers new perspectives for the development of international product safety law.     

Adequacy versus equivalency: Financial data protection and the U.S.–EU divide

In 1995, the European Union passed Directive 95/46/EC, which set the legal framework for European Union citizens to own the rights to their personal data. However, American law bestows ownership to the holder of the data, not the individual, and officials feared the European Union initiative might disrupt data sharing among United States and European Union affiliates. Thus, they negotiated the 2000 Safe Harbor Agreement to allow companies to voluntarily submit to yearly certifications that fulfilled European Union demands, but kept U.S. businesses in control of their data; nevertheless, the Agreement does not include financial and banking services. Instead, the United States argued that the privacy protections within the Gramm-Leach-Bliley Act adequately fulfilled European Union guidelines. The European Union disagreed and financial data sharing has operated under a moratorium for the past decade. However, the 2008 financial crisis has governments and clients clamouring for more data transparency to determine risk in the financial system. These global efforts, the European Union's recent push to strengthen the Directive, and the Dodd-Frank Act have pushed data sharing to the policy forefront. This article asserts that transatlantic data sharing will ultimately have to accommodate the privacy cultures in both the United States and the European Union, but firms must be prepared to cope with demands on their data by establishing government relations offices, standardizing information systems, enhancing education for compliance officers, and improving business school curricula.     

论中国的跨国兼并审查——兼评西方对中国《反垄断法》的观点

美国和欧盟有非常成熟的兼并审查制度。2008年中国的《反垄断法》正式实施,其受到了西方的广泛关注。中国的兼并审查在实体标准和程序机制与美国和欧盟既相似,又有区别。由于中国的历史、目标和当前的问题明显不同于美国和欧盟,因此《反垄断法》在审查兼并所考虑的因素方面已超出了兼并的竞争效果的范围,而包括了兼并对"竞争者"和"国民经济发展"的影响。国际社会应给予中国发展和完善反垄断法的空间,使中国能够在不对国际商业施加负担的情况下实现其特有的目标。对于兼并审查的程序,中国应考虑发展和明确申报体系中有关"控制"的标准,并在条例中规定下来,使其更加可行,以达到在不对国家主权造成侵害的前提下减少对跨国兼并威胁的目的。     

Consumer Law and Policy in Ghana

This paper presents a picture of the landscape of consumer law and policy in Ghana and reviews the scope of protection of consumer interests with specific regard to product safety and liability, consumer sales, and telecommunication services. It assesses the legislative and policy framework on consumer contracts, product safety, and unfair commercial practices; discusses the role of national agencies in enforcing safety standards; and highlights some critical consumer issues in telecommunications service delivery. The paper examines the regulatory framework on other consumer issues such as advertising, labelling, and marketing of consumer products; terms and conditions of consumer contracts; and after sales services including the enforcement of guarantees, warranties, refund, and return policies. The paper also discusses the extent of external influence on the development of consumer law and policy in Ghana and reviews the level of interaction with other legal systems and supranational bodies in the three focal areas. The contribution also explores areas of Ghana’s consumer protection framework which could benefit from guidance from the EU transnational model on consumer protection and makes recommendations for the enhancement of the emerging legislative and policy regime on consumer protection in Ghana.     

Private Parts: A Global Analysis of Privacy Protection Schemes and a Proposed Innovation for Their Comparative Evaluation

Given recent technological advances, we now are able to invade personal privacy as never before. The challenge in the business community is to make the most of the opportunities presented by the growth in communication technology while, at the same time, protecting what remains of individual privacy. The conflict between technological advances and privacy concerns is not new, but it has grown exponentially in recent years, and the development of a data protection scheme in the European Union lends a certain economic urgency to meeting the challenge. Pursuant to a Directive adopted by the European Union, privacy protections throughout the EU must become more stringent and consistent throughout EU member countries. One area of great concern to the United States is the Directive's requirement for certain minimum standards of privacy protection in countries receiving information from member countries. Given the limited protections available in the United States, it does not appear that the United States meets these minimum standards. The purpose of this paper is to critically analyze the existing measurements of global privacy protections and to propose a new model which allows for their comparative evaluation.     

Beyond the Information Technology Agreement: Harmonisation of Standards and Trade in Electronics

Product standards can have a dual impact on costs and, thus, on trade. They can impose costs on exporters as it may be necessary to adapt products for specific markets (cost effect). In contrast, standards can reduce exporters’ information costs as they convey information on product characteristics (informational effect). Using a new World Bank database of European standards for electronic products, we examine the net impact of internationally harmonised European standards on European Union imports. We find that European Union standards for electronic products that are harmonised to international standards have a significant and a positive net effect on trade. The results suggest that efforts to promote trade in electronic products could be complemented by steps to promote standards harmonisation. This might include, for example, restarting talks to extend the WTO’s Information Technology Agreement to commitments to harmonise national standards in electronic products.     

入世十年来中国与LDC国家贸易新发展及展望

中国与最不发达国家间的经贸关系日益紧密,但是针对中国在这些国家的"新殖民主义"活动的指责声日益高涨,在中国加入世界贸易组织十周年之际,文章通过对比分析中国、美国以及欧盟与最不发达国家间的贸易商品结构的演变,发现中国自LDC国家的进口商品结构严重偏向于资源类商品的事实,探讨了中国在未来经贸合作中更应注重对LDC国家自我发展能力的培养以及中方的投资开发行为应遵循的原则,从而构建新型的双边经贸合作前景。     

Trade Disputes and Non‐state Actors: New Institutional Arrangements and the Privatisation of Commercial Diplomacy

Critical aspects of commercial diplomacy in the United States and the European Union are undergoing a process of gradual privatisation. We examine institutional arrangements that permit private groups (predominantly industry associations and firms) to petition for the initiation of trade disputes, propose agenda items for multilateral negotiations in the World Trade Organisation, and conduct negotiations on proposals for regulatory reform outside state‐to‐state channels. These include the United States’ Section 301, the European Union's Trade Barriers Regulation, formal consultation processes surrounding WTO negotiations, and the Transatlantic Business Dialogue. We explore the reasons why governments have opened up these new access points for industry, draw comparisons among the institutions and between the US and EU experience of them, and outline patterns of industry use of the petition mechanisms by broad industrial classification. Along with building theory on comparative private‐sector policy substitutability, we consider some of the normative issues raised by institutions for privatised commercial diplomacy.     

侵权责任归责原则体系分析

侵权责任法的归责原则是确定行为人的侵权民事责任的依据和标准,也是贯穿于整个侵权责任法并对各个侵权法规范起着统帅作用的立法指导方针。侵权责任的归责原则所要解决的是侵权责任的伦理和正义性基础问题,"三元论"归责原则因具备内在逻辑联系和层次性而较之其它归责原则说更具有合理性。我国新颁行的侵权责任法采用二元归责体系,即归责原则由过错责任和无过错责任构成,归责原则应采用以过错责任原则和无过错责任原则为基础,以公平责任原则为补充的归责原则体系。     

Consumer Law and Policy in Kenya

This contribution seeks to examine the consumer protection law and policy in Kenya with a view to understand how consumer issues, such as product safety and product liability, are addressed as well as the remedies for defective goods. It also seeks to understand the available provisions on the safety standards of consumer products, such as mobile phones, by highlighting the consumer issues that arise for mobile phone users with particular reference to the services provided by mobile network operators (MNOs) – i.e., the financial services and products – and how the consumer protection regime has addressed them. It will conclude by examining how the Kenyan consumer law has manifested itself, either by its influence on other states’ consumer laws and policies or the way(s) in which its own laws have been influenced by foreign and supranational consumer laws. References will be made with regard to the influence by the European Commission (EC) Product Safety Directive, the EC Product Liability Directive, the EC Consumer Sales Directive and the EC Unfair Commercial Practices Directive. Furthermore, this contribution will highlight the challenges encountered with respect to the achievement of a consumer protection regime in Kenya, as a result of the fragmentation of the law and policies.     

The Economic Effects of Potential EU Tariff Sanctions on Russia — A Sectoral Approach

Intereconomics - As part of its sanctions regime, the United States recently announced the imposition of punitive import tariffs on 570 product groups from Russia. The European Union may follow...     

中国、美国、欧盟反倾销法的差异比较和借鉴

美国和欧盟是我国重要的贸易伙伴,也是对我国提起反倾销申诉比较多的国家和地区。本文对中国、美国和欧盟反倾销法的主要差异进行了比较研究,指出了中国与美欧反倾销法的分歧和冲突,以及中国反倾销法的若干不足之处,为完善我国的反倾销法提供借鉴。     

论侵权补充责任追偿制度的法理依据

《侵权责任法》第三十四条第二款、第三十七条第二款、第四十条规定了侵权补充责任,但没有明确规定补充责任人追偿权,学界对此有不同的观点。肯定或者否定侵权补充责任追偿权,应当考虑是否符合权利、效率与公平的要求,是否违背民法学的一般原理。另外,探讨侵权补充责任追偿权,还应该研究比较法理论。我国侵权补充责任追偿制度有充分的法理依据,侵权责任法司法解释对此应作扩张性解释,以完善具有中国特色的侵权补充责任制度。     

食品安全之私法救济机制的完善

有鉴于食品安全事件近年来愈演愈烈的现状,本文深入探讨了食品安全的私法救济机制,即通过消费者提起民事诉讼获得赔偿的方法。目前,在诸多防止食品安全的机制中,私法救济机制被忽视了,然而其作用恰恰是最为重要的,私法救济机制可使受到损害的消费者获得充分的救济,剥夺不法厂商通过生产不安全食品而获得的不法收益。因此,应充分利用侵权责任法中的惩罚性损害赔偿制度,发挥公司法中的法人人格否认制度的功能,让控股股东承担连带责任,同时让食品生产企业的董事、监事、经理等高级管理人员承担连带责任。     

Europeanisation of Product Liability in the Asia-Pacific Region: A Preliminary Empirical Benchmark

This report draws primarily on a survey offering a tentative but empirical benchmark of the impact of strict-liability product liability law reforms in the Asia-Pacific Region. There has been a two-fold Europeanisation of product liability in this region. First, the reforms implemented in many jurisdictions during the last 15 years have usually been based on the 1985 EC Product Liability Directive. Secondly, moving beyond the “law in books,” the survey confirms other indications of considerable convergence in the “law in action.” This largely mirrors trends from Lovells’ baseline survey of European jurisdictions completed in 2002 for the European Commission. Similar effects associated with similar reforms include small but significant increases in claims, settlements, and reactions from companies. However, these tendencies are also affected by broader (arguably inter-related) factors such as shifts in consumer consciousness and media attention. Rather than the reforms directly, increased awareness of consumer rights and the media have been identified as being more influential to the increase in claims. These factors are also very important in generating more settlements. Conventional causes of action also continue to be invoked, and there is not much call for further reform. Thus, high levels of product liability litigation remain unique to the United States. However, growing case law in certain Asia-Pacific and European jurisdictions might be synthesised into “Strict Liability Product Liability Principles.” It also seems likely that the Asia-Pacific region will continue to follow more the EU in related areas such as consumer access to justice and product safety regulation, and such harmonization may accompany the proliferating Free Trade Agreements in the region.

Seeking a Single Policy for Contractual Fairness to Consumers: A Comparison of U.S. and E.U. and E.U. Efforts

The United States and the European Union both have made substantial progress toward harmonizing contractual unfairness law for consumers within their borders. To a large degree, the policies of these two largest consumer markets in the world are similar, but consumers should beware that some significant differences remain. Furthermore, differences in interpretation among member states could lead to differences within the E.U.     

Marketing Strategy, Product Safety, and Ethical Factors in Consumer Choice

Firms that wish to be morally responsible in providing products that meet a high standard of safety may face problems competing against firms that make unsafe products and sell these products at cheap prices; these problems may be compounded when consumers do not accurately process information about safety and risk. This paper presents a conceptual argument that the tort system may serve to promulgate information which makes it feasible for firms to market safe products even in the face of these competitive obstacles.To corroborate the conceptual argument, the paper presents the results of an experimental study about the impact of negligence liability information on consumer product safety evaluation. The results show that provision of negligence information heightens consumer concern for safety and firms' ethical behavior, and increases the proportion of consumer choices in favors of the brands sold by manufacturers with a favorable track record for quality. More importantly, they indicate that provision of negligence information reduces the likelihood that brands which conform to inferior safety standards will be chosen by consumers who care about safety standards.