Product Liability and Safety in the United Arab Emirates: Detailed Insight (Part I of II)
1. Principle areas of law and regulation relating to product liability?
The main areas of law and regulation relating to product liability are:
Federal Law Number 24 of 2006 on Consumer Protection (the Law), as amended by Federal Law Number 7 of 2011, is the main piece of legislation relating to product liability in the United Arab Emirates. The law sets up the "Consumer Protection Department" which is charged with the supervision of the execution of policies relating to consumer protection, the regulation of competition and the management of consumer complaints (Article 4). Part four of the law lists the obligations suppliers must abide by and the standards of safety and quality expected of products. The law defines consumer as "any person obtaining a commodity or service for or without a price to satisfy his own or another person's needs".
In addition, the Cabinet of Ministers' Resolution number 12 of 2007 and the Cabinet of Ministers' Resolution number (207/16) of 2006 provide further guidance on consumer rights such as their right to be provided with the facts necessary to conduct proper purchases and the right to select from a number of alternative goods at competitive prices. Resolution number 12 of 2007 defines a "consumer" as "any natural or juridical person receiving any goods or service, with or without consideration, to satisfy his personal needs or the needs of others". This definition of a "consumer" is similar to that of Federal Law Number 24 of 2006. These laws will hereby be referred to as the Consumer Protection Laws. Moreover, Article 282 of Federal Law Number 8 of 1985 on Civil Transactions states that a provider who provides a defective or damaged product shall be "liable to make good the harm". Each Emirate has a Consumer Protection Department, and the Supreme Committee for Consumer Protection regulates matters relating to consumer complaints.
2. How is Liability established in most common causes of action? What constitutes a product as defective? Are there strict product liability norms for any specific circumstances?
In order to establish liability in the United Arab Emirates, the consumer can bring the case before the courts on the grounds of tortious liability, contractual liability and breach of the Consumer Protection Laws. Under tortious liability, the following must be proved:
- a duty of care from the supplier or the manufacturer to the consumer,
- a breach of that duty of care due to defective design, defective manufacture or defective warnings or instructions (failure to instruct the consumer how to properly use the product)
- causation must be established between the defect in the product and the individual's harm, the defendant's responsibility in the matter must be determined
Class actions are not recognized in the UAE.
Under regulation number 12 of 2007, "defective" is defined as any fault in the designing, processing, or manufacturing of any goods, its non-suitability, deformation, or damage emerging before, during, or as a result of use, or due to non-conformity or non-compliance sufficiently with the Approved Standard Specifications, the warranty, or specifications declared or to be declared by the provider; or any acknowledgement or advertisement relating to or posted on the goods". In the United Arab Emirates, product liability claims are generally based on strict liability whereby manufacturers will be held liable regardless of whether they were negligent or not.
3. Who is potentially liable for a defective product? What potential obligations or duties do they owe and to whom?
Manufacturers and Suppliers are potentially liable for defective products. Under the UAE Consumer Protection Laws, providers can be held liable for defective products. Providers are defined in a broad sense as including local agents, distributors, manufacturers and anyone involved in the circulation of the product or service. According to Article 6 of Federal Law Number 24 of 2006, the supplier must not display or offer goods that are defective. The supplier will be liable if a defective product is sold. A supplier will also be liable for not respecting labeling requirements, and for matters relating to warranties and after-sales services. Article 9 of the law states that producers (or manufacturers) will also be liable for providing defective products.
4. What are the potential defenses to the product liability claim(s)? Is there a time limit within which the proceedings can be bought?
In the United Arab Emirates, a seller may rely on exclusions or limitations of liability except in cases of personal harm (Article 296 of Federal Law Number 8 of 1985 on Civil Transactions states that provisions attempting to exempt liability for a harmful product will be void), in cases of criminal liability, in cases where providers have a guilty intention, and in cases where the standards met by the Federal Consumer Protection Department are not met. There are time limitations in which product liability proceedings can be brought.
5. Can a supplier limit its liability for defective products and are there statutory restrictions on a supplier doing this? Do consumer protection laws apply? Are guarantees or warranties as to quality implied by law? Is there a mandatory or minimum warranty period for consumer products?
A supplier can attempt to limit its liability for defective products by inserting pertinent warnings but this will not necessarily protect them. The Consumer Protection Departments and the Courts are rather pro-consumer when it comes to consumer complaints. The United Arab Emirates' laws do not extensively discuss the quality or safety standards expected of the product. Article 12 of Resolution 12 of 2007 states that in the case of a recall of goods the provider of a defective product shall replace the product regardless of the warranty period. In the case of repair, Article 25 declares that a warranty for electronic and electric goods cannot be less than 3 months; an in durable goods not less than 6 months from the date of delivery of repair. In this case, improper use of goods is not covered by the warranty. As for service providers, Article 32 provides that they must provide warranties for a specific period in accordance with the nature of the service.
6. In which cases are product liability cases brought? Are product liability disputes generally decided by a judge or panel of judges? Are juries used in certain circumstances?
Product Liability cases are brought before the Consumer Protection Departments of the relevant Emirate, which have been set up in the Ministry of Economy and the Economic Departments of each Emirate. The consumer does not require the help of a lawyer, nor do they need to pay any fees. The Consumer Protection Department has the authority to take the decision in relation to the complaint. Decisions are generally made by judges and not juries.
7. How are proceedings before Courts in Dubai, Courts in Abu Dhabi and rest of the UAE initiated?
Complaints against defective products are received by the Consumer Protection Department. The Department has the power to investigate all matters relating to the case. Despite this, consumers have the option of filing their cases directly with the courts of the United Arab Emirates. In this case, hearings are public and should have the effect of pressurizing the provider into meeting the consumer's demands. For criminal law matters and matters involving the breach of intellectual property, the claimant or their lawyers in Dubai or UAE may also institute criminal action by filing a complaint before Police. Matters involving forgery, counterfeit, violation of commercial agency, a complaint can be filed before the Ministry of Economy.
8. What is the burden of proof and to what standard?
The onus lies on the claimant, and he/she must prove that they were harmed by the defendant's breach, and indeed that the defendant did breach his duty of care, to begin with. In product liability matters, defendants are strictly liable. The defendant's intention is of no importance to the outcome of the case.
9. How is evidence given in the proceedings and how are the witnesses cross-examined?
The Abu Dhabi Quality and Conformity Council and the Dubai Municipality have the power to take samples of products and have them checked by the Emirates Authority for Standardization and Metrology. If the product is found to be defective, the supplier is notified and may conduct their own checks. Hearing witnesses is not a general procedure in UAE courts, although the courts can request to call and hear a witness if they consider it necessary (usually if the case is referred to an investigator or expert). A party can also request to have a witness called and heard.
10. Are parties able to rely on any expert opinion evidence and are there any special rules, provisions or procedures governing the same?
Parties are able to rely on expert opinion evidence. To this effect, the normal practice is to appoint technical court experts who have the knowledge, experience, and expertise in handling such claims.
11. Is pre-trial disclosure/discovery required? If yes, what rules apply? If not, are there any other means or ways to obtain evidence from a third party?
There is no disclosure and inspection process for documents or pre-trial exchange of evidence in the United Arab Emirates. Parties are not obligated to file documents that go against their case. However, according to Article 18 of Federal Law 10 of 1992, a party to the litigation may request the court to compel his opponent to submit useful documents. The documents a party wishes to rely on are submitted to the courts in writing.
12. Is liability for spoliation of evidence/ a remedy for the destruction of or failure to preserve evidence (in particular, the product)?
Article 22 of Federal Law Number 10 of 1992 concerning evidence states that "the Court shall appraise the consequences of scratching off, erasure, insertion and other material defects in the document which forfeit or depreciate its value as evidence". This applies to product liability, if evidence of a defective product in a complaint is not preserved well, the courts will evaluate the consequences of not preserving it well. The law does not specify any penalties or remedies in relation to this.
13. What type of interim relief is available before a full trial under UAE Law and in what circumstances?
The Consumer Protection Department will immediately apply the remedies and penalties listed in the Consumer Protection Laws when these laws have been breached by a supplier.
14. Can the successful party recover its costs associated with the litigation, such as legal fees and experts costs and to what extent?
The successful party can recover its costs associated with the litigation such as attorney's fees. The appointment of an expert must be funded by the consumer bringing the complaint although they are generally minimal.
15. Please clarify the Appeal process, if any within the legal system of the United Arab Emirates
The parties have a right to appeal the Consumer Protection Department's decision before the Ministry of Economy. The second decision can also be appealed to the Courts of the UAE.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.