Introduction

The impact of the Conflict of Laws on health care litigation is considerable. The cross-border nature of manufacture, distribution and consumption of products makes the prospect of transnational disputes a very real one. Since it might not be easy to determine where the consequences of such action might be felt, the forum in which a defective products case might be litigated cannot easily be predicted. Furthermore, in the absence of harmonised choice of law rules, the law applicable on the merits of a dispute cannot readily be foreseen. This is a potentially serious problem for manufacturers of health care products. Imagine a case where a manufacturer in State A produced pharmaceuticals sold in State B and consumed in England, where they are found to be defective. All would be potentially available fora in which a consumer might sue. If English courts would apply the law of the place of consumption on the merits, the courts of State A the law of the place of production, and the courts of State B the law of the place where the goods were marketed, a manufacturer might need to comply with the laws of three different States in order to satisfy himself that he would not be exposed to tortious liability. This could be said to be a major impediment to the free movement of health care products throughout Europe.