After being considered as niche territory for a long period, conflicts of law and restitution has provided a fertile ground for exposition in recent times. Whilst some development on the jurisdictional front has occurred, choice of law has lagged behind somewhat as, in England at least, no one seemed to be quite sure what was or should be the choice of law rule for restitutionary claims. However, the Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (commonly known as the Rome II Regulation) has now entered into force and will apply from 11 January 2009. Article 10 of the Rome II Regulation sets out a choice of law rule for unjust enrichment.
This article will focus on Article 10 and consider how well the Rome II Regulation caters for choice of law for restitution. Reference will be made to approaches that are or were taken in individual Member States and other countries in order to lay out the background in this area. The structure of this paper will be as follows. The first question that is dealt with is whether the appropriate terminology was adopted by Article 10 : should it be choice of law for ‘unjust enrichment’ or choice of law for ‘restitution’? Secondly, Article 10 adopts the framework of several rules pointing towards different connecting factors. These various specific choice of law rules will be considered in terms of their appropriateness and hierarchy towards each other. Thirdly, some specific problems concerning restitution for wrongs, proprietary restitution and renvoi will be examined.
Choice of Law, Unjust Enrichment, Restitution, Rome II Regulation
Commercial Law | Comparative and Foreign Law
International and Comparative Law Quarterly
Cambridge University Press
Choice of law for unjust enrichment/restitution and the Rome II regulation. (2008). International and Comparative Law Quarterly. 57, (4), 863-898. Research Collection School Of Law.
Available at: http://ink.library.smu.edu.sg/sol_research/908
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