Restitution in Private International Law

by George Panagopoulos

Overview

This important new book fills a large gap in legal literature by examining restitution in private international law,including both the jurisdiction and choice of law questions facing restitutionary claims with international elements.



The book begins with a brief summary of the English domestic law of restitution and highlights some of the issues which may arise. It goes on to examine classification, or characterisation of restitutionary claims.. Restitution has a theoretical unity which enables the author to treat it essentially as a single issue for characterisation purposes. However, restitutionary claims arise in the context of contracts and wrongs; they may be at law or in equity; they may give rise to personal or proprietary remedies, whilst they may be contingent on tracing. Each of these contexts is analysed separately for the purposes of characterisation.



The central part of the book examines the choice of law rule for restitutionary issues, and reviews the different approaches adopted in the US and UK and in other parts of the common law world. After weighing the merits of the different approaches the author adopts a choice of law rule for restitutionary issues which is the proper law of the unjust factor. Depending on whether the unjust factor is event-based or law-based, the choice of law rule will focus on either the law of the place, or alternatively, the legal system with which the unjust factor has its closest and most real connection.



Jurisdiction is an area of increasing importance in private international law and the book provides a thorough analysis of the topic of jurisdiction for restitutionary claims, both under the Brussels Convention as well as the traditional common law rules contained in the Civil Procedure Rules.



This is an important and timely new work for all lawyers interested in restitution, private international law and international commercial litigation.

Product Details

ISBN-13:	9781841131429
Publisher:	Bloomsbury Academic
Publication date:	11/10/2000
Pages:	320
Product dimensions:	6.14(w) x 9.21(h) x 0.75(d)

About the Author

George Panagopoulos is a solicitor with the law firm of Richards Butler in Athens.

Table of Contents

	Table of Cases	xv
	Table of Legislation	xxix
	Works Frequently Cited	xxv
	Introduction	1
Part I	A Map Through the Law of Restitution
1.	A Map Through the Law of Restitution	5
1.	The Existence of a Separate Law of Restitution	5
2.	The Elements of a Restitutionary Claim	7
2.1	Enrichment	7
2.2	At the Plaintiff's expense	9
2.3	Unjust Receipt of the Value of the Benefit	9
3.	Personal and Proprietary Remedies--Proprietary Restitution	11
3.1	The Nature of Proprietary Restitution	13
3.2	Proprietary Claims and Proprietary Restitution	13
3.3	Circumstances giving rise to Proprietary Restitution	14
4.	Restitution for Wrongs	15
4.1	Availability of Restitution for Wrongs	15
4.2	Taxonomic Location of Restitution for Wrongs	16
5.	Tracing	17
5.1	What is Tracing?	17
5.2	Why do we Trace?	18
5.3	Tracing at Law and in Equity	19
6.	Defences	21
6.1	Change of Position	21
6.2	Defence of Bona Fide Purchaser	22
Part II	Characterisation of Restitutionary Claims
2.	Characterisation in General	27
1	The Need for Characterisation	27
2	The Process of Characterisation	29
2.1	Problems Associated with Characterisation	29
2.2	The "Thing" to be Characterised?	31
3.	Characterisation of Restitutionary Claims	37
1	One Issue or Several?	37
2	The Arguments in Favour of a Single Characterisation issue	38
2.1	Consistent with the Approach in Relation to Contract and Tort	38
2.2	Permutations of Legal Systems	40
2.3	Consistent with Authority	42
2.4	Macmillan v. Bishopsgate: Which is the Issue?	43
4.	Specific Restitutionary Characterisations	47
1	Restitution and Contract	47
1.1	Independent Restitutionary Issue	48
1.2	The Scope of the Restitutionary Issue	53
1.3	Restitution for Breach of Contract	57
2	Characterisation of Equitable Rights and Obligations	57
3	Proprietary Restitution	61
3.1	The Proprietary Approach	62
3.1.1	Characterisation of Issues Affecting Property	62
3.1.2	Proprietary Restitution as Part of the Law of Property	65
3.2	The Restitutionary Approach to Characterisation	66
3.2.1	A Pure Restitutionary Characterisation	67
3.3	The "Equity" Aspect of Proprietary Restitution	70
3.3.1	The in personam Nature of Equity	71
3.3.2	In personam Characterisation of Proprietary Restitution	74
3.3.3	Equitable Interests Created via Consensual Transfers	75
3.4	The Hybrid Approach to the Characterisation of Proprietary Restitution	76
3.4.1	The Scope of the Ancillary Proprietary Issue	79
4	Characterisation of Restitution for Wrongs	81
4.1	Characterisation as "Wrongs"	82
4.2	Cases Dealing with International Restitution for Wrongs	84
4.3	Characterisation of Equitable Wrongs	86
4.3.1	Characterisation of Equitable Wrongs as Breaches of Trust	88
4.3.2	Characterisation of Equitable Wrongs as Breaches of Contract	88
4.3.3	Characterisation of Equitable Wrongs as "Wrongs"	90
4.3.4	Claims for "Knowing Receipt"	91
5	A Separate Issue of Tracing?	94
5.1	The Tracing Problem	94
5.2	The Approaches	95
5.2.1	Procedural or Substantive Issue?	96
5.2.2	A Separate Choice of Law Rule?	97
5.2.3	Characterisation of Tracing	99
5.2.4	Interest in the Tracing Process	100
5.3	Ancillary Issues	101
5.3.1	Intermediate Purchases or Acquisitions	101
5.3.2	Tracing in Equity and at Law	102
6	Negotiorum Gestio	103
5.	Theoretical Issues	106
1	Renvoi	106
2	The Incidental Question	107
Part III	Choice of Law Rules for Restitutionary Issues
6.	The Existing Authorities	111
1	Introduction	111
2	Dicey and Morris	112
3	U.S. Restatement	115
4	Other Academic Opinion	120
5	The English Case Law	121
6	Other Common Law Cases	125
7.	The Various Proposed Choice of Law Rules	133
1	The Place of Enrichment Rule	133
1.1	Arguments in Favour of Place of Enrichment Rule	133
1.2	Arguments Against the Place of Enrichment Rule	134
1.2.1	Unsound Foundation	135
1.2.2	No general "place of enrichment" rule	135
1.2.3	Ignoring other Elements of a Restitutionary Claim	136
1.2.4	Arbitrary Result	137
1.2.5	Meaning of Place of Enrichment	138
2	Lex Fori	141
3	Multiple Choice of Law Rules	143
3.1	Law of the Contract	143
3.2	Law of the Relationship	149
3.3	Lex Situs of Immovables	151
4	Proper Law of the Obligation	153
5	Proposed Convention on the Law Applicable to Non-Contractual Obligations	155
5.1	Scope of the Draft Proposal	155
5.2	Choice of Law Rule	156
8.	Preferred Choice of Law Rule	159
1	The Essential Element of the Unjust Factor	159
2	Determining the Proper Law of the Unjust Factor	166
2.1	Mistake	168
2.2	Illegitimate Pressure	169
2.3	Failure of Consideration	171
2.4	Unauthorised Transfer	173
2.5	Restitution for Wrongs	174
2.6	Legal Compulsion	175
2.7	Ultra Vires Payments	180
2.8	Illegality and Incapacity	180
3	Unjust and Unjustified	181
Part IV	Jurisdiction in Restititutionary Claims
9.	Jurisdiction Under the Brussels Convention	187
1	Background to the Convention	187
2	Interpreting the Convention	188
3	The Scope of the Convention	189
4	Application of the Convention	192
4.1	The General Rule	192
4.2	Special Jurisdiction	194
4.2.1	Article 5(1)--Matters Relating to a Contract	196
4.2.2	Article 5(3)--Matters Relating to Tort, Delict or Quasi-Delict	197
4.3	Particular Types of Restitutionary Claims	205
4.3.1	Restitutionary Claims Connected with a Contract--Article 5(1)	206
4.3.2	Choice of Court Agreements--Article 17	219
4.3.3	Proprietary Restitutionary Claims in Relation to Land--Article 16(1)	221
4.4	Other Particular Types of Restitutionary Claims	225
4.4.1	Claims in Equity	225
4.4.2	Proprietary Restitution	226
4.4.3	Restitution for Wrongs	228
10.	Jurisdiction Under the Common Law Rules	231
1	Service out of the Jurisdiction	231
2	Heads of Jurisdiction	235
2.1	Sub-rule (15): claim for restitution	235
2.1.1	Questions of Choice of Law	239
2.2	Sub-rules (5) and (6): claims in relation to contracts	242
2.2.1	Implied Contract Made within the Jurisdiction	242
2.2.2	Breach of Implied Contract within the Jurisdiction	245
2.2.3	The Preferred Approach	246
2.2.4	Restitutionary Claims Connected with a Contract	250
2.3	Sub-rule (8): claims in tort	255
2.3.1	Meaning of "tort"	255
2.3.2	Damage Sustained within the Jurisdiction	258
2.3.3	Act Committed within the Jurisdiction	258
2.4	Sub-rule (10): property within the jurisdiction	259
	Conclusion	261
	Appendix	265
	Index	271

Editorial Reviews

Panagopoulos book is a welcome addition it is required reading for those who practice or have an interest in this developing area.” —Canadian Business Law Jourbanal

“...a thorough study of restitution in private international law The book is a very useful addition to the specialized literature of private international law. It is researched diligently and carefully argued” —McGill Law Jourbanal

From the Publisher

Panagopoulos, a barrister practicing in London, begins with a summary of the English domestic law of restitution and reviews the classification of restitutionary claims. He then examines the differences among a variety of common law approaches to restitutionary issues, focusing on the US and UK. A final section analyzes jurisdiction in private international law, both under the Brussels Convention and the traditional common law rules of England. The legalistic language used in the book emphasizes that it was designed primarily for law professionals. Distributed by ISBS. Annotation c. Book News, Inc., Portland, OR (booknews.com)

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