Product Liability 2009 - Arnold & Porter LLP

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party and that this other party was able to comment on it.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
There is no pre-trial deposition in Luxembourg or formal prior
disclosure procedure.
However, in accordance with article 64 of the NCPC, each
document, technical report, witness statement and generally all
evidence must be exchanged by the parties during the proceedings.
The court may reject evidence submitted if it considers that it has
not been communicated (to the other party) in due time.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
There are no obligations to disclose evidence before court
proceedings.
During the proceedings, each party must exchange its evidence (see
the answer to question 4.9).
The court may order a party to the dispute or a third party to
disclose documents under penalties.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
(i) Arbitration may be used to resolve civil and commercial disputes.
Luxembourg law distinguishes between a submission to arbitration
(compromis d’arbitrage, which is a contractual agreement whereby
the parties refer an existing dispute to one or more arbitrators) and an
arbitration clause (promesse d’arbitrage or clause compromissoire,
which is a contractual agreement whereby the parties agree to submit
to arbitration, future disputes arising pursuant to their contract).
Article 1244 of the NCPC provides that the arbitral award may only
be challenged before the court by means of an annulment action on
the basis of a limited list of annulment grounds.
(ii) Mediation may also be used to resolve conflicts in civil and
commercial matters, whereby parties agree to ask an impartial third
party, the mediator, to help them find a solution to their dispute.
Contrary to arbitration, the mediator does not impose a decision on
the parties; he simply offers a private and confidential assistance.
There is no specific legislation on mediation for civil and
commercial matters in Luxembourg.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
There are time limits on bringing proceedings (see the answer to
question 5.2).
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
I. Legislation on defective products
The Defective Products Act provides that proceedings for the
ICLG TO: PRODUCT LIABILITY 2009
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recovery of damages must be brought within three years from the
day on which the plaintiff became aware, or should reasonably have
become aware of the damage, the defect and the identity of the
producer (article 7). This period may be interrupted or suspended.
Pursuant to article 7(2) of the Defective Products Act, the producer
may only be held liable for damages that occur within ten years
from the date on which the product that caused the damage was put
into circulation, unless the victim has filed an action against the
producer in the meantime.
II. Contractual liability
In accordance with article 1648 of the LCC, the statute of limitation
applicable to actions on grounds of hidden defects is divided into
two time limits: (i) a short period to denounce the defect (without
providing a strict limit for the first time period which is left to the
court’s discretion); and (ii) upon expiry thereof, a period of one year
to initiate legal proceedings. This one-year period may be
interrupted by negotiations or by summary proceedings.
III. Tort liability
In accordance with article 2262 of the LCC, a tort action becomes
time barred after thirty years from the date the damage occurred.
Courts do not have a discretionary power to disapply the statute of
limitation.
IV. Specific legislation on sale agreements concluded by
consumers
The purchaser must by any means notify the seller of the material
defect within two years of the delivery of the moveable property
and must initiate his action for warranty within two years of such
notification.
This strict time limit does not apply where the seller has deceived
the purchaser in order to prevent him from initiating his action for
warranty or where the parties have entered into negotiations or
where a court action is pending.
Time limits are suspended against (non-emancipated) minors
according to article 2252 of the LCC.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
The grounds to interrupt or to suspend time limits are exclusively
enumerated in articles 2242 to 2259 of the LCC. However and
according to Luxembourg case law, fraud or concealment may
affect the running of time limits.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
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I. Legislation on defective products
Article 7 of the Defective Products Act allows the victim of the
defective product to recover damages.
II. Contractual liability
In case of lack of conformity, the purchaser may choose
either to return the moveable property and to get a refund or
to keep the moveable property and to reclaim part of the sale
price. Where the seller replaces or repairs the moveable
property, the purchaser cannot obtain rescission of the sale or
the reduction of the sale price (article 1610 of the LCC).
Article 1644 of the LCC gives the purchaser the possibility
to rescind the contract by means of an action to set aside the
sale on account of a material defect (action rédhibitoire) or
Luxembourg