Tort Liability for Standards Development in the United States and the European Union
Forthcoming in J. Contreras (ed), Cambridge Handbook of Technical Standardization Law. Volume II (Cambridge: Cambridge University Press 2019)
Tilburg Private Law Working Paper Series No. 12/2018
40 Pages Posted: 25 Sep 2018 Last revised: 11 Apr 2019
Date Written: September 25, 2018
Standards development is celebrated for providing a wide range of important benefits to individuals, firms, and society at large. Sometimes, however, it may harm the interests of specific individuals and firms. Tort law may offer remedies to those who suffered a loss because they relied on incomplete, outdated or otherwise inadequate standards, or used a product that was manufactured in conformity with such bad standards. This chapter discusses different theories of tort law that govern civil liability for private standards development in the United States and the European Union. It analyzes which factors courts in those jurisdictions consider significant when assessing civil liability for harm caused by negligent standards development. The chapter concludes that the liability exposure of standards-development organizations is principally determined by (i) the legal or de facto control such organizations have to direct compliance with their standards; (ii) the intended purposes of developing standards; (iii) the public representations organizations make about their expertise in standards development; (iv) whether there is a commercial benefit for the organization in developing standards and related activities; and (v) the observance of accepted principles of good governance in the adoption and revision of standards.
Keywords: standards development, tort law, civil liability, technical standardization, certification
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