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(1)Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. 研究ノート. Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions Erkin Abdurizaev 1 . Introduction 214 1.1 Research Background 214 1.2 Importance of the Study 218 1.3 Objectives 219 1.4 Research Methodology 220 2 . Product Liability Regulations in Uzbekistan 220 2.1 Brief Overview of the Civil Code of Uzbekistan 220 2.2 Provisions of the Civil Code of Uzbekistan on Product Liability 222 2.2.1 Introduction 222 2.2.2 Article 1017. Grounds for Compensation for Harm Caused as Consequence of Defects in Good, Work, or Service 223 2.2.3 Article 1018. Persons Responsible for Harm Caused as Consequence of Defects in Good, Work, or Service 226 2.2.4 Asticle 1019. Periods for Compensation of Harm as Result of Defects in Good, Work, or Service 229 2.2.5 Article 1020. Ground for Relief from Responsibility for Harm Caused as Consequence of Defects in Good, Work, or Service 232 2.3 Provisions of the Act on “Protection of Consumer's Rights” 234 2.3.1 Introduction 234 2.3.2 Article 20 Property Responsibility for Harm Caused by the Product (or Work, Service) Defects 236 2.4 Vision and Recommendations 238 Appendix 1 240. 213.

(2) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. 1 Introduction 1.1 Research Background The twentieth century witnessed the mass-production and consumption of consumer products. The increased availability of goods was followed by increase of risks. Sources of personal injury and property damage have increased fast as consumers increased their reliance on manufactured products. Consumer protection was introduced through legislation and regulation of the production and handling of consumer goods. In spite of increases in legislative controls, consumers continue to suffer personal injury, property damage, and economic losses from the use of both ordinary products and products that are recognized as inherently dangerous. When such a loss happens, consumers have two general means for redress: contract law and the law of torts. The mass-production and consumption of consumer products created a new challenge to tort law in particular, and has resulted in a substantial expansion and the appearance of the product liability law. In the United States, product liability law is a part of tort law, which was first recognized in the 1960s as revolutionary provisions in the restatement１）which imposed strict product liability, or liability without fault on manufacturers of the defective products for the harm caused to consumers. Strict liability provisions were rapidly adopted in the United States and spread out to other countries.２）Further development of the product liability law revealed different categories of defects – manufacturing defect, design defect and warning defect. Various doctrines and theories concerning the scope of damage, proof of causation, manufacturer’s defenses, etc. appeared along with the court practice. This paper is a research work of the state of products liability regulations in Uzbekistan. 214.

(3) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. A special emphasis will be given to the warning defects due to the fact that it is the most frequently cited cause of action in product liability litigation in the modern world. Warning defect is also known as failure-to-warn defects. These defects occur in products which have inherent and non-obvious dangers which could be made safer through adequate warnings. In other words, a warning defect may exist when product has insufficient or inadequate instructions or warnings. For example, an over-the-counter medicine that fails to warn the consumer about its side effect may constitute a warning defect. Generally, consumers who were injured by this type of defect have several ways to recover their damages. An injured consumer may sue for damages based on a theory of strict liability, negligence, or breach of warranty depending on the circumstances. Strict liability focuses on the product in question and not the actions of the manufacturer. Under this theory, the manufacturer will be held liable for a defective product even if the manufacturer was not negligent in the manufacturing of the product. Specifically, the manufacturer of any product put in the stream of commerce as new one may be liable to any person who uses, consumes, or may be reasonably affected by the property. When such a person suffers an injury to his person or property, liability attaches if the product sold by the manufacturer was not reasonably safe and suitable for its intended use, and that becomes the proximate cause of the injury sustained. Thus, the key elements of a product liability suit under the strict liability theory are that the product was defective at the time of sale and that the defect was a proximate cause of the injury. It is important to note that strict liability is imposed only on products which are new. The phrase "new product" simply means the product was not significantly altered by its user or other 215.

(4) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. third party before the injury occurred. An injured consumer may also bring an action under a theory of negligence. Negligence asks whether the defendant exercised reasonable care. The plaintiff must show that the defendant had a duty which was breached and that the injuries were proximately caused by that breach of duty. In defective product cases, a manufacturer has a general duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses. Proving that the manufacturer was negligent often requires a showing that the manufacturer's conduct fell below the relevant standard of care which may be determined by the industry standard. This typically requires an expert in the field who can testify as to what the industry standard is and whether the manufacturer failed to meet that standard. Additionally, a plaintiff must generally show that there was a defect in the product when it left the manufacturer. In defective warning cases, manufacturer has a specific duty to warn whenever he knows or reasonably should have known of a danger arising from the use of its product. A duty to warn can arise even if the product is not otherwise defective. However, this duty only extends to the use of the product in a manner reasonably contemplated and anticipated by the manufacturer. However, manufacturers have no duty to warn of obvious common dangers. For a warning to be considered adequate, it must provide a complete disclosure of the existence and extent of the risk involved. Adequacy also depends on the language that is used and the impression that such language makes upon the mind of the average product user. In addition, the knowledge and expertise of those who are reasonably expected to use the product are also taken into account. In the scenario where a plaintiff fails to read instructions or warnings, he or she cannot recover on a claim grounded on the failure to 216.

(5) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. provide an adequate warning. However, failure to read a warning does not prevent recovery when the plaintiff challenges the adequacy of the efforts of the manufacturer to communicate the dangers of the product.３） Product liability claims brought under theories of strict liability and negligence are generally subject to the statute of limitations and repose for personal injury. For instance, in Japan no product liability action can be commenced after 10 years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury. However, negligence actions are not barred after 10 years where the manufacturer's negligence has resulted in a product causing disease or a birth defect, or where the injuries arise out of especially egregious acts. Recoverable damages under these theories may include lost earnings, loss of future earnings, medical expenses that have been incurred and those that will be, and past and future pain and suffering. A plaintiff may also seek to recover for the wrongful death of his or her decedent. The measure of a wrongful death recovery is the full value of the life of the person who passed away which includes an economic element and an intangible element. A defendant may stave off liability with one of many potential defenses. For example, a plaintiff's recovery may be barred or reduced if the negligence or fault of the plaintiff is a proximate cause of the injury. Moreover, a defendant may argue that the plaintiff assumed the risk and is therefore not liable. A defendant may also argue that a plaintiff altered, modified, or misused a product which may bar recovery. The fact that a defect was not known to the best scientific or other knowledge may also bar recovery in some situations. Many other defenses may also exist depending on the specific facts of the case.. 217.

(6) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. 1.2 Importance of the Study During the past thirty years, the duty to warn has received heavy emphasis in litigation relating to products liability. In fact, failure-to-warn claims are now the most common form of product litigation. Reasons for the proliferation of litigation in this area have included, inter alia, the relative ease of initiating tort actions based upon inadequate warnings, the difficulty in defending against such actions, and the apparently low cost of placing warnings on products. While the duty to warn would seem, on its face, to be a fairly straightforward legal principle to apply, it has taken on a new dynamic in the United States, Japan and Uzbekistan. All three countries are composed of highly diverse populations speaking a variety of languages. As the borders of one-country economy has been broken and the economic globalization is invading its territory, thousands and thousands of new products are exported and imported from one country to another. Developed countries with economic clout, like Japan and the United States, have firmly adopted the legislation to protect their population from defective products, guarantee product safety and encourage manufacturers to produce safe products. However, the situation is different in developing countries. Not all developing countries have well-tailored legislation on product safety and active consumer protection institutions. Thus, developing countries with growing population become very attractive to manufacturers seeking new markets for their products. Unfortunately, manufacturers, both domestic and foreign, do not always provide safe product. Very often the cause of defectiveness is the lack of adequate warnings. Wherever a product's design or performance is in question, the plaintiff often claims the safety information that came with the item was misleading or insufficient. Uzbekistan is a former Soviet republic which gained its independence 218.

(7) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. in 1991. The population is over 27,000,000 and it keeps growing by 400,000 annually. Geographically it is located in the middle of Eurasia between Russia on the north and India on the south, China on the east and Europe on the west. Uzbekistan is a growing market for producers in all of these countries. This study on product liability regulations of Uzbekistan aims to be an outstanding reference to the manufacturers who have already had or want to start business in Uzbekistan. Since this work includes international experiences, it might be of use for the Uzbek government in providing adequate protection of its citizens from unsafe and defective products. Uzbek legislation on the law of torts in general and product liability law in particular was blindly copied from Russian legislation. Thus, in Uzbek law many of fundamental principles were either just lost or cut of when there was sharp necessity in new legislation.. 1.3 Objectives The purpose of this work is to draw up the complete picture of product liability law in Uzbekistan, to show the strength and weaknesses of the Uzbek legislation by comparing it to the legislation of Japan and the United States. The work offers explanation of such requirements as: what is covered by the legislation; what is excluded from coverage. The analysis of legal definitions and producer defenses, recovery of damages and time limitations has a purpose to give a legal evaluation of the product liability provisions. The significant aspect of the research is that it contains some valuable examples from the American and Japanese experience. Last but not least, this work aims to offer some legislative suggestions for further conscious reform and improvement of the Uzbek legislation.. 219.

(8) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. 1.4 Research Methodology The author follows the analytical legal methodology in the study. Historical analysis, comparative and case review are the indivisible research tools of this work. Such diversity of methods allows the author to look at the problems from different angles and use the benefit of a full picture of strengths and weaknesses of legislation of different countries to make suggestions suitable for Uzbekistan. Since it is a legal research, concerned legal texts and documents are considered as primary sources. All other secondary sources like books, standard journal articles and comments of renowned scholars have been considered and analyzed. Cautious approach has been taken in using empirical data and its analysis. If, however, an inadvertent mistake is somehow made, it is hoped that the mistake would graciously be absolved.. 2 Product Liability Regulations in Uzbekistan 2.1 Brief Overview of the Civil Code of Uzbekistan There was a conscious effort by the Uzbek president’s office to provide assistance in the drafting of the Model Civil Code for the Commonwealth of Independent States (CIS). Scholars not only from Uzbekistan, but also from Ukraine, Armenia, Kazakhstan, Belarus, Kyrgyzstan and Russia worked together on various aspects of the civil legislation. By their joint efforts in 1994-1996, the Model Civil Code was created. As a result today, in six states of the CIS there are civil codes very close to one another. The Civil Code of Uzbekistan follows a pattern common to European civil codes, in particular the German Civil Code. The structure involves a “General Part” of the Code, stating general principles applicable throughout the Code. 220.

(9) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. There is then a hierarchy of substructures dealing, for instance, with the general principles of the law of obligations, general principles of the law of contracts, and the specific details of particular contracts, such as the contract for the sale of goods. The Part One of the Uzbek Civil Code begins with basic provisions on matters such as the relationship of civil legislation to other legislation and good faith. It then goes on to define natural and legal persons. The Part Two also contains a number of divisions that follow the typical pattern of European civil codes: objects of civil law rights, transactions and representation; time periods and limitation of actions; general provisions on obligations, general provisions on contracts. The Part Two of the Civil Code deals with individual types of obligations. Most of the Part Two is devoted to provisions on specific types of contract. In applying the Civil Code of Uzbekistan to a particular contract, it is essential to keep in mind the formal structure of the Code. In cases involving contracts governed by the Code, lawyers trained in Anglo-American Common Law tend to look only at the general principles of contract law in the Code, because they are used to thinking of contract law as consisting only of general principles, such as those found in the United States in the Restatement of Contracts. Instead, in dealing with a contract law issue under the Uzbek Code, lawyers must look at the very general principles at the start of the Code, at the general principles of the law of obligations in the Code, and at the specific Code articles dealing with the specific type of contract. The Part Two also deals with liability for causing harm and liability for unjust enrichment. There is relatively little in the second part to surprise the foreign lawyer, though those trained in Common Law should note the extremely broad definition of a "source of increased danger" for which there is 221.

(10) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. liability without fault.４） The Part Two of the Civil Code includes Inheritance Law and Private International Law. ５） Both provide legal regulations urgently needed for the new market economy. While the new Civil Code is a great advance, it has some shortcomings. It retains provisions for Soviet-style state enterprises, which it calls “unitary” enterprises. ６） These enterprises have no property of their own, but rather merely administer state property. It limits freedom of contract by providing an excessive number of mandatory terms for specific types of contract. It overlaps with other legislation by providing summary provisions on many topics that are covered more thoroughly in other laws. These overlaps have led and will lead to litigation meant to clarify contradictions between the code and other legislation.. 2.2 Provisions of the Civil Code of Uzbekistan on Product Liability 2.2.1 Introduction Uzbekistan has not adopted special act regulating liability for harm caused by the product defect yet. Product liability issues have been regulated based on the Chapter 57 §3 of the Civil Code７）and article 20 of the Act on “Protection of Customer’s Rights.”８） First off all, it is necessary to understand the regulations of the Civil Code of Uzbekistan. Chapter 57 §3 “Compensation for Harm Caused as Consequence of Defects in Goods, Work, or Services” consists of following 4 articles: Article 1017. Grounds for Compensation for Harm Caused as Consequence. of Defects in Good, Work, or Service 222.

(11) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. Article 1018. Persons Responsible for Harm Caused as Consequence of Defects in Good, Work, or Service Article 1019. Periods for Compensation of Harm Cause as Result of Defects in Good, Work, or Service Article 1020. Ground for Relief from Responsibility for Harm Caused as Consequence of Defects in Good, Work, or Service This part intends to analyze the articles above and to shed light on how victims of defective products are protected in Uzbekistan. It also explicates manufacturers and sellers obligations and defenses available for them. The analysis opens a veil over some blanks in legislation and gives certain ways of their elimination. The author hopes that given suggestions and recommendations are constructive and they will be helpful in qualitative improvement of the legislature. 2.2.2 Article 1017. Grounds for Compensation for Harm Caused as Consequence of Defects in Good, Work, or Service Harm caused to the life, health, or property of a citizen or the property. of a judicial person as a consequence of design, prescription, or other defects of a good, work, or service and also as a consequence of unreliable or insufficient information concerning the good (or work, service) shall be subject to compensation by the seller or the manufacturer (or executor) irrespective of their fault and whether the victim was in contractual relations with them or not. The rules provided for by the present Article shall be applied only. in the instances of the acquisition of the good (or fulfillment of work, rendering of service) for consumption purposes, and not for use in entrepreneurial activity. 223.

(12) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. This article establishes strict liability on the seller or manufacturer (or performer of work) regardless of the fault of the defendant. The first point that catches attention is the scope of the article. The Code establishes strict liability not only for the defective goods, but also for works and services. It is necessary to recall that strict liability originally was born in the United States to ease consumers’ burden of proof; since the production has become too complex and it has become almost impossible for the plaintiffs to bring evidence of the manufacturer’s negligence. But recent views intend to return to the negligence principle in cases where the defect is closely related to the human activity. Thus, reporters of the Restatement (Third) of Torts: Product Liability – A. Twerski and J. Henderson ascertained that the “plaintiff should bear the burden of establishing that the risk in question was known or should have been known to the relevant manufacturing community.”９） Establishing strict liability for defects in work and services is heavy and unreasonable toll on work performers and service providers. Uzbek legislators included such works as construction and transportation in the term “works and services.” However, there are such deep-rooted legal theories as “negligence” and “contractual liability” according to which performers are liable based on their fault. Traditionally these theories are applied where the damage is caused by negligent misconduct. Nobody is perfect and mistakes in work and services are, more or less, usual. That is why the author strongly believes that it is legally incorrect and socially inappropriate to establish the strict liability on every work performer or service provider without proving his fault. The first paragraph of the article splits defect into types: design and prescription defects, information defect and other defects that in author’ s opinion might be considered as a manufacturing defects. The idea of categorization of defect means that the Uzbek Civil Code took the American 224.

(13) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. vector10 ） with some modifications. The fact that the Uzbek Code does not introduce exact definitions of each kind of defect creates ambiguity and confusion. The first paragraph also highlights the termination of the privity principle and establishes the liability without contractual relationships. The second paragraph of the article constricts the liability of a manufacturer only to the person who consumed the product, but did not use it in a way of business. This paragraph may raise a dispute. On the one hand, paragraph one says that this article should be applied when the property of the juridical person was damaged while, on the other hand, paragraph two bans the application of the article, if the product is used for entrepreneurial activity. The separation of “consumption” and “entrepreneurial activity” was introduced due to the pressure from the consumer groups to draw attention to the consumer’s rights protection. Consumers need special protection because of inequity of bargaining power and the ability to obtain necessary information. Person who acts as a business is considered to have equal bargaining power and by that being as strong as a manufacturer in protecting his rights and interests. That is why juridical person is not supposed to use the benefit of the strict liability. juridical person has the right to sue the manufacturer, but that claims should be based on other provisions of the Code or contract between the parties. Juridical person may file a case based on the article 1017, if the product that caused damage was used in “consumer purposes.” Thus, it confuses whether, for instance, the TV set that caused damage in the office of a judicial person is used for the entrepreneurial activity or not. It is also uncertain if an employee who suffered damage from the defective TV set during the working time can claim compensation from the manufacture based on this article or not. The author does not see the necessity to separate the victims of defective 225.

(14) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. products into consumers and business. First of all, all products should be manufactured equally safe. As a rule manufacturer does not know whether the ordinary product will be used by the private person or the entrepreneur. Secondly, in Uzbekistan small and medium business is just raising and still in need of the governmental support. Moreover, in Uzbekistan there are many private entrepreneurs who are merely natural persons registered to carry their personal and very often small business. As a rule, private entrepreneurs do not have equal bargaining power to compete with manufacturers. However, law does not give them right to sue manufacturer and contrary, impose on them a heavy duty to be liable for the defective goods. It is timely to mention that neither in Japan nor in the United States legislature separates the victims of defective products.11） The approach employed by Uzbek legislators reflects European concept which separates the persons eligible to sue based on the purpose of use of the product. European approach has its advantages and disadvantages as well as supporters and opponents.12） The author, considering the Uzbek situation, suggests eliminating this separation. 2.2.3 Article 1018. Persons Responsible for Harm Caused as Consequence of Defects in Good, Work, or Service. Harm caused as a consequence of the defects of a good shall be subject to compensation at the choice of the victim by the seller or manufacturer of the good. Harm caused as a consequence of the defects in work (or services) shall be subject to compensation by the person who fulfilled the work or rendered the service (executor). Harm caused as a consequence of the failure to grant full or reliable information concerning the good (or work, services) shall be subject to 226.

(15) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. compensation in accordance with the rules of the present Article. According to this article, a victim has the right to choose a defendant. This rule differs from both - the provisions of the American Restatement, where seller and manufacturer are equally liable and from the Japanese Product Liability Act, which bans claims against a seller. The possibility to choose the defendant has a great value because the plaintiff can choose a wealthier defendant who is in a better position to satisfy the claims, on the one hand and the one who is comparatively easier to defeat at the court, on the other. However, the author does not support the idea of the provision. As it usually happens seller knows neither the features of the product not the manufacturing process. Seller does not have enough knowledge about the operation of the product, its usage and especially about the product’s inherent defects. At least the reasonableness of implication of the duty to warn of unknown danger on a seller is disputable. In Uzbekistan many sellers are mere nonmanufacturing private entrepreneurs who are financially to satisfy such claims. Their social function is being a middleman and limited to delivering goods from manufacturers to consumers. The inclusion of the sellers in the defendants list in Uzbekistan is a disastrous step that goes apart from the public order and is ineffective due to the following reasons: 1．Sellers are not in the best position to care the burden of damage, according to Calabresi’s “Cheapest Cost Avoider” theory.13） 2．Sellers are not in the feasible position to manufacture product and give adequate warnings and instructions. 3．Product liability claims may cause a strong negative influence on the raising stratum of small business, especially on retailers. 227.

(16) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. The Japanese Product Liability Act exempts sellers from the responsible person list.14 ） Even American Restatement (Third) which adopted seller’s liability gives certain defenses to nonmanufacturing sellers.15） The author is convinced that the seller should be liable only if he rejects to identify the manufacturer and importer or their identification is impossible. The blank that legislative body should eliminate is the lack of provisions regarding an importer’s liability. According to the State Committee of the Republic of Uzbekistan on Statistics16） import in 2008 was about $7.504.100.000. Even if related controlling and certifying authorities thoroughly check every kind of imported goods, there is no guarantee that all of the imported items are safe and free of defects. However, neither the Civil Code nor the Act on “Customer’s Rights Protection” includes importers in the liable person’s list. This gap should be thoroughly considered and eliminated in the view of the fact that it breaks the chain of responsible persons and cause certain difficulties to the injured party in finding liable party. The last paragraph of this article establishes the liability for the damages caused by the failure to provide full or reliable information about the product. This information includes the quality certificate, technical passport, manual and other documents required by the legislation or a contract. The rule of this paragraph has a great value for the entire product liability law of Uzbekistan. The provision requires information to be full and reliable. Full and reliable information is the only requirement for the warnings and instructions to be adequate. Full and reliable information provided to consumer with the flawlessly designed and manufactured product makes the product safe and defectless. However, neither the Act itself, nor the commentaries give the interpretation of “full and reliable information.” The interpretation is the court’s prerogative, but even court should make the decision based on laws. 228.

(17) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. Since it was impossible to find any Uzbek case the question remains open for discussion. There might be a lot of speculations regarding the possible interpretation, but until court make it clear, it is impossible to say for sure. 2.2.4 Article 1019. Periods for Compensation of Harm Caused as Result of Defects in Good, Work, or Service. Harm caused as a consequence of defects in good (or work, service) shall be subject to compensation if it arose during the established periods for the fitness of a good (or work, service), and if the period of fitness is not established, within ten years from the date of production of the good (or acceptance of work, service). Beyond the limits of the periods specified in paragraph one of the present Article harm shall be subject to compensation if: in violation of the requirements of a Law, the period of fitness is not established; the person to whom the good was sold, for which the work was fulfilled, or to whom the service were rendered was not warned about necessary actions upon the expiry of the period of fitness and the possible consequences in the event of the failure to fulfill the said actions. The rule of this article sets up a period of time that bars any claims and it is analogous to the statute of repose in Common Law. A consumer or user can file a lawsuit against a manufacturer, if the defect in the product caused harm within the established period of fitness. As a rule, the period of fitness or suitability is established by manufacturer in accordance with the governmental standards. In the event where the period is not established the Code preempts claims for damages happened sometime after ten-year period from the date of production. 229.

(18) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. It is worth to pay the attention to the fact that in Uzbekistan the calculation of the ten-year period starts from the day of production. The author strongly criticizes this rule in the view of the fact that very often products might be delivered many years after the actual date of production. Accordingly, the author believes that the provision has to be amended. To bring the Japanese and American provisions as the example, both countries set up the date of sale or delivery as the starting point for the statute of repose which is also ten years. The rationale for the statute of repose is well-established and does not raise a lot of questions. The only one that might be asked the Uzbek legislators is how the victims of latent diseases should be protected. For instance, people contracting asbestosis might know about their health problems fifteen or twenty years after the production of the product. If the ten-year period is applied, they lose their right to claim the compensation. As a reference, the Japanese Product Liability Act in this occasion makes the exception. The tenyear period “shall be calculated from the time of the occurrence of the damages where such damages are caused by substances which become harmful to human health when they accumulate in the body, or where the symptoms which represent such damages appear after a certain latent period.”17） Additionally, §57 of the Civil Code of Uzbekistan does not say anything about the period of limitation. The Japanese law, for instance, establishes that the limitation of period is three years,18） in the United States it differs from 1 to 6 years.19 ） The article 15020 ） of the Civil Code of Uzbekistan says that the general period of limitation shall be 3 years. The Civil Code of Uzbekistan also establishes that the period should start from the date when the person knew or should have known about the violation of his right.21 ） As it was explained in the previous sections, in Uzbek legal system special provisions prevail over 230.

(19) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. the general ones. However, in the absence of special rule general rules are suppletory. Therefore, general period of limitation is also applicable. The confusion comes with the article 163 of the Civil Code that says:. Limitations shall not extend to: … Demands concerning compensation of harm caused to the life or. health of a citizen. Demands presented upon the expiry of the period of limitations shall be satisfied for not more than three years preceding the bringing of suit;… Thus, the provisions of the Civil Code are confusing. The author thinks that they should be reconsidered because in some certain cases they might contradict each other and lead to the misunderstanding whether the victim of a defective product can claim compensation or not. Further, provisions of the second paragraph set up the irrelativeness of the time of limitation, if the manufacturer was negligent in communicating the actions necessary to be taken after the period of fitness, or about the consequences of the failure to take those actions. This subsection directly points on the warning defect and imply on a manufacturer the duty to warn of the dangers even when the period of fitness has passed. Can it be considered as a post-sale duty to warn? It is doubtful. This provision, in other words, imply the duty to give instructions on utilization. Therefore, there is not any notice concerning the manufacturer’s post-sale duty to warn or recall its defective product. Post-sale duty to warn and recall is another relatively new but important issue in the product liability litigations all over the world. Manufacturer is obliged to provide warnings after the time of sale if they know or reasonable should know that the product poses a substantial risk of harm to consumers 231.

(20) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. or property. The author suggests the adoption of post-sale duty to warn and recall in the Uzbek product liability legislature. 2.2.5 Article 1020. Ground for Relief from Responsibility for Harm Caused as Consequence of Defects in Good, Work, or Service. The seller or manufacturer of a good or executor of work (or service) shall be relieved from responsibility if it is proved that the harm arose as a consequence of force majeure or a violation by the consumer of the established rules for the keeping (storage) or use of the good (or the results of work, service). The rule of this article provides manufacturers with certain defenses and lists the conditions when plaintiff’s claims should be dismissed. The Code arms the manufacturer with the list of the following defenses: 1．Force majeure; 2．Violation of established rules for use - misuse or unforeseeable use; 3．Violation of established rules for storage. The analysis of these defenses shows the inapplicability and irrelativeness of insuperable force to the product liability claims. It is unclear how a manufacturer can justify the defect in the product using the “insuperable force” defense. Force majeure or “Act of God” is a natural and unavoidable disaster that interrupts the expected course of events. However, the question is why the manufacturer shall be relieved from the responsibility, if the disaster caused a defect in the product. 1．If disaster caused defect in the product during the manufacturing process, the manufacturer is supposed to take extra measures to check the quality of the products in any case. 232.

(21) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. 2．If disaster caused a defect in the product after the manufacturing process but before the sale, the seller should be liable, if he knew or should have known of the possibility of the defect. The seller has the duty to sell the product that suit and fit to the purpose of its usage. Since a manufacturer should have known of the possible defect after disaster, he should be liable. 3．The manufacturer should be relieved from responsibility only if the disaster caused a defect in the product after the sale and the consumer was negligent in checking the conditions of the product. The author doubts the necessity to include this issue into the Code because it is such a fundamental issue. To summarize, in the event the insuperable force caused the defect in the product the manufacturer should not be relived from responsibility except for the cases where the product has left manufacturer’s possession and other third parties had a duty to check the product. There should not be any doubts concerning the applicability of other defenses. Though, the provision regarding the violation of rules for storage attracts attention. First of all, rules of storage can be communicated by providing instructions in the manual or orally. Rules of storage are the information and the violation of these rules means failure to heed the warnings and instructions – this may be analogous to the assumption of risk defense. The important point is that the law establishes the assumption of risk defense only in the case of storage. The question of availability of the defense for other cases remains open. Additionally, the author thinks that the Uzbek law should establish the “comparative negligence” defense. The “comparative negligence” defense should reduce the sum of compensation depending on the percentage of plaintiff’s negligence, but not ban the claims. 233.

(22) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. Besides that the Civil Code leaves a lot of other questions. There are no provisions concerning manufacturer’s post-sale duty to warn and recall, liability for used products, the scope of goods and etc. 2.3 Provisions of the Act on “Protection of Consumer’s Rights” 2.3.1 Introduction The Act was adopted and came into force in April 26, 1996. It gives definition to such terms as “manufacturer”, “seller”, “product defect,” etc. However, first of all, these terms are tailored for the consumer’s rights protection and therefore they do not incorporate the meanings that are necessary for the product liability litigation. Second, even present definitions have some gaps. Definition of the “Product Defect” The definition of “product defect” is crucial for the product liability law. The Act defines “product defect” as “unfitness to mandatory requirements. of the normative documentation, requirements of the contract or the requirements usually put to the quality of the product.” This definition is good enough for the consumer’s rights protection, but it is not always applicable in the product liability law. The Japanese law, for instance, establishes two kinds of defects: Kashi （瑕疵）and Kekkan（欠陥）The first one is used in the consumer’s rights protection where consumer did not suffer any health damage and has a right to claim the change or free repair of the product. The second one is the product liability defect when the consumer suffered damage to his life, health or property and can claim compensation of it. Unfortunately, the Uzbek legislature does not put things this way. 234.

(23) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. The important aspect to pay attention is that the definition de jure sets up so called “governmental standards” defense. The compliance with the governmental standards makes the product perfectly manufactured and, correspondingly, discharges the manufacturer from responsibility. This provision is different from that in Japan22 ） and the United States23 ） where governmental standards considered as the lowest level of requirement for the products and even if the product complies with the governmental standards it can be find defective. In other words, governmental standards do not preempt the manufacturer from liability. The “governmental standards” defense may raise discussions concerning the liveliness of the “state of the art” or the “development risk” defense24 ） in Uzbekistan. Shall the Uzbek legislature employ the “state of the art” or the “development risk” defense? This question remains to be answered. In order to answer this question it is necessary to keep in mind that Uzbekistan is still in the period of transition from the administrative economy, where the majority of producers were governmental bodies and they (factually government) had the highest level of scientific and other knowledge. Doubtless is the fact that the government establishes the highest standards for manufacturer in present. Uzbekistan has adopted several Acts regarding the certification and standardization. For instance, the Act on “The Quality and Safety of the Food Products” from 30/08/1997 (last amendments from 06/04/2006), the Act on “The Standardization” and the Act on “The Certification of Products and Services” both are form 28/12/1993 (last amendments from 25/04/2003), etc. Moreover, there is the Agency on Standardization, Metrology and Certification that is responsible for examining a product and the production process before issuing the permission to produce it in Uzbekistan. All above mentioned make the adoption of the “development 235.

(24) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. risk” defense unnecessary. An additional argument against the adoption of the “development risk” defense is the level of awareness of the manufacturers in Uzbekistan. Although Uzbek scientists do a lot of innovations in different areas, there are lots of other spheres known abroad, but unknown to the ordinary Uzbek manufacturer. If Uzbek parliament sets up the “development risk” defense manufacturers will suffer more than benefit; it will not be possible for the producers to obtain the information available, let’s say, in Japan or the United States, and they will be almost condemned to lose lawsuits. That is why, the government standards should incorporate the highest level of development and the compliance with them should preempt claims in Uzbekistan, at least, in the present conditions. The question that emerges regarding the governmental standards is whether the government should compensate the damage in case where the governmental standards were not on the adequately high level. It is difficult to believe that any government will voluntarily take this duty. But, de jure medical treatment in Uzbekistan is free of charge and government pays allowances to handicapped people. Therefore, the author suggests introducing the governmental liability in to the legislation. (The author realizes the complexity of the issue and insists on that the question of governmental liability should be discussed as a separate issue.) 2.3.2 Article 20 Property Responsibility for Harm Caused by the Product (or Work, Service) Defects The only article dealing with the liability for the defective products is the Article 20. It is similar to the article 1017 of the Civil Code and says:. Harm caused to life, health or property of consumer as a result of construction, production, prescription and other defects of a product (or 236.

(25) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. work, service), and also application of materials, equipment, techniques, tools, and other means not providing safety of life, health or property of a consumer, shall be compensate by seller (or producer, executor). Right to require compensation of the harm caused by defect of a product (or work, service) is given to any victim independently whether he had a contractual relations with a seller (or producer, executor) or not. Harm caused to the life, health or property of a consumer shall be compensated if it happened during the period of service (suitability) stipulated in normative documentation, and if the period was not stipulated, - during ten years period from the moment of production of a product (or accepting of work, service). Seller (or producer, executor) shall be relieved from responsibility, if he proves that harm caused by insuperable force or infringement by a consumer of established rules of product’s usage, storage or transportation. The article gives wider range of examples of the defect and adds transportation defense. Machinery and equipment that does not guarantee the safety is defective – this provision is very important. It is a core of the product liability law. All products should be safe and harmless for their intended use. The fact that the Uzbek law included the safety issue is highly appreciated, however, exact definitions and clear interpretation, as it is the case with the Japanese and American law, are necessary to make the law work. Additionally, the article introduces the transportation defense. If the consumer violates the instructions concerning transportation the damage will not be compensated. As it was explained in above, the violation of rules should be considered as the assumption of risk. At the same time it is strongly desirable to establish “comparative negligence” defense where plaintiff’ 237.

(26) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. s negligent act or omission to act was one of the reasons of his injuries or property damage. 2.4 Vision and Recommendations The question is whether Uzbekistan needs a special Product Liability Act. Is Uzbekistan ready technically, socially, economically, if yes, to what extent? These are the questions the answers to which are not as simple, as it might seem. A special legal, social and economic survey should be conducted. In this part the author would like to introduce some statistic data and suggestions on how to advance the product liability provisions of Uzbekistan. According to the State Committee of the Republic of Uzbekistan on Statistics the GDP of Uzbekistan grew by 9% in 2008.25）The growth of industry was 12.7% , consumer’s goods production 17.7% , agriculture 4.5% . In this rapid development government should provide adequate protection to consumers. At the same time, even if official statistics showed that small business entities produced 48.2% of the total GDP they remain weak to bear the burden of strict liability. It is necessary to keep in mind that Uzbekistan is in the period of transitional economy and every strict regulation could stop the development of the business. Therefore, what legal regulations are necessary to balance these two aspects? Taking into account the Uzbek situation, product liability law is an area that can no longer be avoided. Following are some important suggestions that, in the author opinion, should be incorporated into the Uzbek product liability legislation. 1．Uzbekistan should adopt a special Product Liability Act (hereafter the “PL Act”) 2．The PL Act should clearly define the categories of defect. 238.

(27) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. 3．The PL Act should include its particular definitions among which: a）Term “Product defect” should be defined as a lack of safety or existence of unreasonable danger in the product in the course of its intended use; b）Term “Product” should not include works and services. (Damage from works and services should be judged based on the negligence principle); c）Term “Consumer” should include business entities (No need to detach whether a product was used in consumer purposes or in entrepreneurial activity); d）Term “Manufacturer” should cover importers; e）Term “Manufacturer” should partially include a seller (seller should be liable only if he rejects to identify the manufacturer and importer or the identification is impossible.); 4．The PL Act should include provisions concerning post-sale duty to warn and recall as well as the liability for damage caused by the used defective product; 5．The PL Act should clearly fix the time of limitation and repose (the time of limitation should start from the date of sale or delivery rather than the date of production); 6．The PL Act should reconsider and enlarge the list of defenses available for a manufacturer; 7．The Uzbek law should introduce the comparative negligence and it should not ban the claims, but reduce the sum of compensation depending on the percentage of plaintiff’s negligence.. 239.

(28) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. Appendix 1 Statutes of Limitations for the 50 States (and the District of Columbia) STATE. STATUTE. WRITTEN ORAL INJURY CONTRACT CONTRACT. PROPERTY DAMAGE. ALABAMA. Ala. Code § 6-2-2 et seq. *. 6. 6. 2. 6. ALASKA. Alaska Stat. § 09.10.010 et seq.. 3. 3. 2. 6 (real property); 2 (personal property). ARIZONA. Ariz. Rev. Stat. Ann. § 12-541 et seq.. 6. 3. 2. 2. ARKANSAS. Ark. Code Ann. § 16-56-101 et seq.. 5. 3. 3. 3. CALIFORNIA. Cal. Civ. Proc. 4 Code § 312 et seq.. 2. 2. 3. COLORADO. Colo. Rev. Stat. § 13-80-102 et seq.. 6. 6. 2. 2. CONNECTICUT. Conn. Gen. Stat. Ann. § 52-575 et seq.. 6. 3. 3. 2. DELAWARE. Del. Code Ann. tit. 10, § 8101 et seq.. 3. 3. 3. 2. D I S T R I C T O F D.C. Code § 12-301 3 COLUMBIA et seq.. 3. 3. 3. FLORIDA. Fla. Stat. Ann. § 95.011 et seq.. 5. 4. 4. 4. GEORGIA. Ga. Code Ann. § 9-3-20 et seq.. 6. 4. 2. 4. HAWAII. Haw. Rev. Stat. § 657-1 et seq.. 6. 6. 2. 2. IDAHO. Idaho Code § 5-201 et seq.. 5. 4. 2. 3. ILLINOIS. 735 Ill. Comp. Stat. 5/13-201 et seq.. 10. 5. 2. 5. 240.

(29) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. INDIANA. Ind. Code Ann. § 34-11-2-1 et seq.. 10. 6. 2. 6 (real property); 2 (personal property). IOWA. Iowa Code Ann. § 10 614.1 et seq.. 5. 2. 5. KANSAS. Kan. Stat. Ann. § 60-501 et seq.. 3. 2. 2. KENTUCKY. Ky. Rev. Stat. Ann. 15 § 413.080 et seq.. 5. 1. 5 (real property); 2 (personal property). LOUISIANA. La. Civil Code § 3492 et seq.. 10. 10. 1. 1. MAINE. Me. Rev. Stat. Ann. tit. 14, § 751 et seq.. 6. 6. 6. 6. MARYLAND. Md. Courts & Jud. Proc. Code Ann. § 3 5-101 et seq.. 3. 3. 3. MASSACHUSETTS. Mass. Ann. Laws 6 ch. 260, § 1 et seq.. 6. 3. 3. MICHIGAN. Mich. Comp. Laws § 600.5801 et seq.. 6. 6. 3. 3. MINNESOTA. Minn. Stat. Ann. § 6 541.01 et seq.. 6. 6. 6. MISSISSIPPI. Miss. Code. Ann. § 3 15-1-1 et seq.. 3. 3. 3. MISSOURI. Mo. Rev. Stat. § 516.097 et seq.. 5. 5. 5. 5. MONTANA. Mont. Code Ann. 8 § 27-2-2021 et seq.. 5. 3. 2. NEBRASKA. Neb. Rev. Stat. § 25-201 et seq.. 5. 4. 4. 4. NEVADA. Nev. Rev. Stat. Ann. § 11.010 et seq.. 6. 4. 2. 3. 5. 241.

(30) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. NEW HAMPSHIRE. N.H. Rev. Stat. Ann. § 508:1 et seq.. 3. 3. 3. 3. NEW JERSEY. N.J. Stat. Ann. § 6 2a:14-1 et seq.. 6. 2. 6. NEW MEXICO. N.M. Stat. Ann. § 37-1-1 et seq.. 6. 4. 3. 4. NEW YORK. N.Y. Civ. Prac. Laws & Rules § 201 et seq.. 6. 6. 3. 3. NORTH CAROLINA. N.C. Gen. Stat. § 1-46 et seq.. 3. 3. 3. 3. NORTH DAKOTA. N.D. Cent. Code § 28-01-01 et seq.. 6. 6. 6. 6. OHIO. Ohio Rev. Code Ann. § 2305.03 et seq.. 15. 6. 2. 4. OKLAHOMA. Okla. Stat. Ann. tit. 5 12, § 91 et seq.. 3. 2. 2. OREGON. Or. Rev. Stat. § 12.010 et seq.. 6. 6. 10. 6. PENNSYLVANIA. 42 Pa. Cons. Stat. Ann. § 5501 et seq.. 4. 4. 2. 2. RHODE ISLAND. R. I. Gen. Laws § 9-1-12 et seq.. 10. 10. 3. 10. SOUTH CAROLINA. S.C. Code Ann. § 15-3-510 et seq.. 3. 3. 3. 3. SOUTH DAKOTA. S.D. Codified Laws Ann. § 15-2-1 et 6 seq.. 6. 3. 6. TENNESSEE. Tenn. Code Ann. § 28-3-101 et seq.. 6. 6. 1. 3. TEXAS. Tex. Civ. Prac. & Rem. Code § 16.001 et seq.. 4. 4. 2. 2. UTAH. Utah Code Ann. § 6 78-12-22 et seq.. 4. 4. 3. 242.

(31) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. VERMONT. Vt. Stat. Ann. tit. 12, § 461 et seq.. 6. 6. 3. 3. VIRGINIA. Va. Code Ann. § 8.01-228 et seq.. 5. 3. 2. 5. WASHINGTON. Wash. Rev. Code Ann. § 4.16.005 et seq.. 6. 3. 3. 3. WEST VIRGINIA. W. Va. Code § 55-2-1 et seq.. 10. 5. 2. 2. WISCONSIN. Wis. Stat. Ann. § 893.01 et seq.. 6. 6. 3. 6. WYOMING. Wyo. Stat. § 1-3-102 et seq.. 10. 8. 4. 4. * et seq. means “and the next sections following in sequence”. 243.

(32) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. (Endnotes) １）Restatement (Second) of Torts Section 402 A (1965) says: ⑴ One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if ⒜ the seller is engaged in the business of selling such a product, and ⒝ it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. ⑵ The rule stated in Subsection (1) applies although ⒜ the seller has exercised all possible care in the preparation and sale of his product, and ⒝ the user or consumer has not bought the product from or entered into any contractual relationship with the seller. ２）See COUNCIL DIRECTIVE “On the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products” (85/374/EEC) and the Product Liability Act (of Japan 1994) ３）The Nara District Court judgment on 08/10/2003; See Abdurizaev E.; Trends and Developments in Product Liability Regulations: The Japanese Experience; 18-1, Yokohama Law Review; (2009) p. 192-193; Boyd v. Lincoln Electronic Co., 902 N.E.2d 1023 (Ohio Ct. App. 2008) a former boilermaker welder asserted product liability claims against manufacturers of welding rods, wire, and consumables. The court held that the plaintiff could rely on the heeding presumption to defeat summary judgment even though it was undisputed that the plaintiff did not read warnings that manufacturers began placing on welding-rod containers starting in 1967. The court concluded that the heeding presumption was not per se rebutted by evidence that the plaintiff did not read any warnings accompanying the product, because plaintiff presented evidence that he did not ever see the warnings due to their placement on the welding rod containers. ４）Article 999 of CC of RU says that “judicial person and citizen whose activity is connected with an increased danger for surrounding persons (means of transport, mechanism, industrial enterprises, construction sites, possessor of means of transport, and others) shall be obliged to compensate the harm caused by a source of increased danger unless it is proved that the harm arose as a consequence of force majeure or the intent of the victim…” ５）Private international law deals with legal relations that have a foreign element, including, but not limited to, international business transactions. Some countries as well as Japan 244.

(33) Analysis of Product Liability Provisions in Uzbekistan: Legislative Needs and Suggestions. adopt separate Act concerning Private International Law. ６）Article 70 of the Civil Code of Uzbekistan says that “A commercial organization not endowed with the right of ownership to property consolidated to it by the owner shall be deemed to be a unitary enterprise…” ７）The Civil Code of Uzbekistan has been put into effect from March 1, 1997 by the Resolution of the Oliy Majlis (parliament) of the Uzbekistan No. 257-I dated 29. 08. 1996 ８）The Act on “Protection of Customer’s Rights” has been put into force from April 26, 1996. ９）See Restatement Third, Torts: Product Liability §2, comment m. 10）European and Japanese legislators did not give exact separation of categories of defect in their legislation. 11）See the Restatement and the Product Liability Act respectively; the Tokyo District Court decision on 31. 07. 2003, Nagoya High Court decision on 18. 07. 2007. 12）See Howells G. & Wilhelmsson T. EC Consumer Law, Ashgate/ Dartmouth. 1997. pp. 1-5 13）Guido Calabresi, Judge of the US Court of Appeals for the Second Circuit, Sterling Professor Emeritus, and former Dean of Yale Law School. Calabresi developed his wellknown concept of the ‘cheapest cost avoider’. Liability should be the responsibility of the actor who is in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs and to take preventive measures if they are cheaper than the avoided accident costs. Up until the present, the framework developed in The Costs. of Accidents has provided a powerful structure to organize discussions on the strengths and weaknesses of diverging liability rules in various areas of tort law, ranging from traffic accidents to medical malpractice and environmental harm 14）The Product Liability Act of Japan, Article 2 (3) 15）See Restatement Third, Torts: Product Liability §1, comment e 16）Official statistics can be found on www.stat.uz 17）The Product Liability Act of Japan, Article 5 (2) 18）The Product Liability Act of Japan, Article 5 ⑴ The right to seek damages provided in Article 3 shall be extinguished by prescription if the victim or his/her legal representative does not exercise such right within 3 years from the time when he/she becomes aware of the damages and the party liable for the damages. The same shall apply to the case where 10 years have elapsed from the time when the manufacturer, etc. delivered the product. ⑵ The period referred to in the second sentence of the preceding paragraph shall be calculated from the time of the occurrence of the damages where such damages are caused by substances which become harmful to human health when they accumulate 245.

(34) 横浜国際経済法学第 18 巻第２号（2009 年 12 月）. in the body, or where the symptoms which represent such damages appear after a certain latent period. 19）See Appendix 1 20）The Civil Code of Uzbekistan, Article 150 21）The Civil Code of Uzbekistan, Article 154. The running of the time period of limitation of actions starts from the day when a person knew or should have known of the violation of his right. Exceptions from this rule are established by the present Code and other laws 22）The Tokyo High Court judgment on 31/08/2006; See Abdurizaev E.; Trends and Developments in Product Liability Regulations: The Japanese Experience; 18-1, Yokohama Law Review; (2009) p. 199-207 23）See WYETH v . LEVINE, Supreme Court of the US 04/04/2009. Petitioner Wyeth. manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the “IV push” method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label included an adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as a professional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claims were pre-empted by federal law because Phenergan’s labeling had been approved by the federal Food and Drug Administration (FDA). 24）These defenses exclude manufacturer from liability if he proves that the best knowledge available on the time of production or delivery was not such as to enable discovery of the defect. 25）Official statistics can be found on www.stat.uz. 246.

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