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Restitution in Private International Law - George Panagopoulos

Restitution in Private International Law

Hardcover

Published: 17th November 2000
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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.

Panagopoulos book is a welcome addition it is required reading for those who practice or have an interest in this developing area. Stephen G. A. Pitel Canadian Business Law Journal February 2003 ...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 H. Patrick Glenn McGill Law Journal February 2003

Table of Casesp. xv
Table of Legislationp. xxix
Works Frequently Citedp. xxv
Introductionp. 1
A Map Through the Law of Restitution
A Map Through the Law of Restitutionp. 5
The Existence of a Separate Law of Restitutionp. 5
The Elements of a Restitutionary Claimp. 7
Enrichmentp. 7
At the Plaintiff's expensep. 9
Unjust Receipt of the Value of the Benefitp. 9
Personal and Proprietary Remedies--Proprietary Restitutionp. 11
The Nature of Proprietary Restitutionp. 13
Proprietary Claims and Proprietary Restitutionp. 13
Circumstances giving rise to Proprietary Restitutionp. 14
Restitution for Wrongsp. 15
Availability of Restitution for Wrongsp. 15
Taxonomic Location of Restitution for Wrongsp. 16
Tracingp. 17
What is Tracing?p. 17
Why do we Trace?p. 18
Tracing at Law and in Equityp. 19
Defencesp. 21
Change of Positionp. 21
Defence of Bona Fide Purchaserp. 22
Characterisation of Restitutionary Claims
Characterisation in Generalp. 27
The Need for Characterisationp. 27
The Process of Characterisationp. 29
Problems Associated with Characterisationp. 29
The "Thing" to be Characterised?p. 31
Characterisation of Restitutionary Claimsp. 37
One Issue or Several?p. 37
The Arguments in Favour of a Single Characterisation issuep. 38
Consistent with the Approach in Relation to Contract and Tortp. 38
Permutations of Legal Systemsp. 40
Consistent with Authorityp. 42
Macmillan v. Bishopsgate: Which is the Issue?p. 43
Specific Restitutionary Characterisationsp. 47
Restitution and Contractp. 47
Independent Restitutionary Issuep. 48
The Scope of the Restitutionary Issuep. 53
Restitution for Breach of Contractp. 57
Characterisation of Equitable Rights and Obligationsp. 57
Proprietary Restitutionp. 61
The Proprietary Approachp. 62
Characterisation of Issues Affecting Propertyp. 62
Proprietary Restitution as Part of the Law of Propertyp. 65
The Restitutionary Approach to Characterisationp. 66
A Pure Restitutionary Characterisationp. 67
The "Equity" Aspect of Proprietary Restitutionp. 70
The in personam Nature of Equityp. 71
In personam Characterisation of Proprietary Restitutionp. 74
Equitable Interests Created via Consensual Transfersp. 75
The Hybrid Approach to the Characterisation of Proprietary Restitutionp. 76
The Scope of the Ancillary Proprietary Issuep. 79
Characterisation of Restitution for Wrongsp. 81
Characterisation as "Wrongs"p. 82
Cases Dealing with International Restitution for Wrongsp. 84
Characterisation of Equitable Wrongsp. 86
Characterisation of Equitable Wrongs as Breaches of Trustp. 88
Characterisation of Equitable Wrongs as Breaches of Contractp. 88
Characterisation of Equitable Wrongs as "Wrongs"p. 90
Claims for "Knowing Receipt"p. 91
A Separate Issue of Tracing?p. 94
The Tracing Problemp. 94
The Approachesp. 95
Procedural or Substantive Issue?p. 96
A Separate Choice of Law Rule?p. 97
Characterisation of Tracingp. 99
Interest in the Tracing Processp. 100
Ancillary Issuesp. 101
Intermediate Purchases or Acquisitionsp. 101
Tracing in Equity and at Lawp. 102
Negotiorum Gestiop. 103
Theoretical Issuesp. 106
Renvoip. 106
The Incidental Questionp. 107
Choice of Law Rules for Restitutionary Issues
The Existing Authoritiesp. 111
Introductionp. 111
Dicey and Morrisp. 112
U.S. Restatementp. 115
Other Academic Opinionp. 120
The English Case Lawp. 121
Other Common Law Casesp. 125
The Various Proposed Choice of Law Rulesp. 133
The Place of Enrichment Rulep. 133
Arguments in Favour of Place of Enrichment Rulep. 133
Arguments Against the Place of Enrichment Rulep. 134
Unsound Foundationp. 135
No general "place of enrichment" rulep. 135
Ignoring other Elements of a Restitutionary Claimp. 136
Arbitrary Resultp. 137
Meaning of Place of Enrichmentp. 138
Lex Forip. 141
Multiple Choice of Law Rulesp. 143
Law of the Contractp. 143
Law of the Relationshipp. 149
Lex Situs of Immovablesp. 151
Proper Law of the Obligationp. 153
Proposed Convention on the Law Applicable to Non-Contractual Obligationsp. 155
Scope of the Draft Proposalp. 155
Choice of Law Rulep. 156
Preferred Choice of Law Rulep. 159
The Essential Element of the Unjust Factorp. 159
Determining the Proper Law of the Unjust Factorp. 166
Mistakep. 168
Illegitimate Pressurep. 169
Failure of Considerationp. 171
Unauthorised Transferp. 173
Restitution for Wrongsp. 174
Legal Compulsionp. 175
Ultra Vires Paymentsp. 180
Illegality and Incapacityp. 180
Unjust and Unjustifiedp. 181
Jurisdiction in Restititutionary Claims
Jurisdiction Under the Brussels Conventionp. 187
Background to the Conventionp. 187
Interpreting the Conventionp. 188
The Scope of the Conventionp. 189
Application of the Conventionp. 192
The General Rulep. 192
Special Jurisdictionp. 194
Article 5(1)--Matters Relating to a Contractp. 196
Article 5(3)--Matters Relating to Tort, Delict or Quasi-Delictp. 197
Particular Types of Restitutionary Claimsp. 205
Restitutionary Claims Connected with a Contract--Article 5(1)p. 206
Choice of Court Agreements--Article 17p. 219
Proprietary Restitutionary Claims in Relation to Land--Article 16(1)p. 221
Other Particular Types of Restitutionary Claimsp. 225
Claims in Equityp. 225
Proprietary Restitutionp. 226
Restitution for Wrongsp. 228
Jurisdiction Under the Common Law Rulesp. 231
Service out of the Jurisdictionp. 231
Heads of Jurisdictionp. 235
Sub-rule (15): claim for restitutionp. 235
Questions of Choice of Lawp. 239
Sub-rules (5) and (6): claims in relation to contractsp. 242
Implied Contract Made within the Jurisdictionp. 242
Breach of Implied Contract within the Jurisdictionp. 245
The Preferred Approachp. 246
Restitutionary Claims Connected with a Contractp. 250
Sub-rule (8): claims in tortp. 255
Meaning of "tort"p. 255
Damage Sustained within the Jurisdictionp. 258
Act Committed within the Jurisdictionp. 258
Sub-rule (10): property within the jurisdictionp. 259
Conclusionp. 261
Appendixp. 265
Indexp. 271
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841131429
ISBN-10: 1841131423
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 320
Published: 17th November 2000
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 24.13 x 16.51  x 3.18
Weight (kg): 0.61
Edition Number: 1