Micallef-Borg and Van Calster, ‘Non-Contractual Liability as an Instrument for Regulating Nano and New Technologies’

Abstract:
The novel properties yielded by nanoparticles’ physico-characteristics, and the benefits associated with them, have for some time now raised concerns over long-term health impact and potential risks. This article examines the suitability of non-contractual liability, as a regulatory instrument to deal with potential harm/damage that may be caused by engineered non-biodegradable/insoluble free nanoparticles, nanomaterials and products incorporating them, in a European context. It does so by employing an Environment, Health and Safety framework i.e. catering for reparation in occupational health and safety, product liability, and environmental damage scenarios. Delving into the rigours of tort law and case law in the EU, aiming to elucidate ius commune stances, the article explores the application of the OHS Framework Directive, the Product Liability Directive and the Environmental Liability Directive (albeit to a lesser extent). Insights are taken from cases (and regulation) primarily dealing with asbestos and genetically modified organisms.

In the development of a regulatory framework for nanotechnologies, and other emerging technologies more generally, is non-contractual liability a good muscle to flex in the regulator’s stratagem? With all the unknowns that come with the ‘new’, is the law of (qausi) delict capable of meeting its aims – tempering, with caution, nanotechnologies’ use and proliferation? This article seeks to answer these questions in more than just general terms. In reviewing the detailed application of the law of torts in Europe, we offer in-depth insight into tort law’s ultimate (in)suitability for regulating new technologies.

Micallef-Borg, Cheryl and Van Calster, Geert, Non-Contractual Liability as an Instrument for Regulating Nano and New Technologies – A Thorough Review Using National and European Union Tort Law (June 21, 2011).

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