Lloyd's Maritime and Commercial Law Quarterly
RESTITUTION AND THE CONFLICT OF LAWS
Andrew Dickinson*
The academic challenge of both restitution and the conflict of laws is well recognized (both in terms of the volume of material and the complexity of some of the key issues). Perhaps it is inevitable that the intersection between the two subjects is not widely considered in the student texts. However, a quick glance at the bibliography in Restitution and the Conflict of Laws
1 shows that this area has not been ignored by writers in either area. The role which this book would seem to fulfil is not so much as an explorer of uncharted territory but rather as a coloniser gathering together the available resources and organizing them into a coherent structure. Perhaps unfortunately, its publication has been quickly followed by the decisions of the Court of Appeal in Macmillan Inc. v. Bishopsgate Investment Trust Plc (No. 3)
2 and Kleinwort Benson Ltd v. City of Glasgow District Council.3 However, the five chapters in the collection are of considerable assistance to any lawyer researching the area. They provide a discussion of the issues from both a restitutionary and a conflict of laws point of view which is far wider than that undertaken by the courts in either case. Furthermore, they provide a framework for the critical assessment of recent and future decisions.
Jurisdiction: Brussels Convention
Edwin Peel’s chapter on the application to restitutionary claims of the Brussels Convention4 is the first of two focusing upon issues of jurisdiction. Peel adopts a step-by-step approach to the interpretation of Art. 5(1) and (3) of the Convention5 and concludes that, in the absence of a specific provision of special jurisdiction relating to claims in unjust enrichment, it would be possible6 for the court to apply Art. 5(3) to such
* St Edmund Hall, Oxford.
1. Restitution and the Conflict of Laws. Edited by Francis Rose, Professor of Commercial and Common Law, University of Buckingham. Mansfield Press, P.O. Box 639, Oxford 0X3 7HD (1995), xl and 220 pp., plus 8pp. Appendix and 5 pp. Index. Paperback £27. Unless otherwise stated, page references in this paper are to this text.
2. [1996] 1 W.L.R. 387. See Bird [1996] LMCLQ 57; Swadling [1996] LMCLQ 63; Grantham and Rickett [1996] LMCLQ 463; Briggs [1996] R.L.R. 88.
3. [1996] 2 W.L.R. 655. See Riley [1996] LMCLQ 182; Stevens (1996) 112 L.Q.R. 391.
4. Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1978 O.J. L304/36) (the “Convention”). The Convention has been amended from time to time upon the accession of new Member States to the EC. However, such amendments are not material to this paper. The Convention appears as Sched. 1 to the Civil Jurisdiction and Judgments Act 1982. Parallel provisions for the distinct U.K. legal systems appear as Sched. 4 to that Act.
5. Art. 5 provides that “A person domiciled in a Contracting State may, in another Contracting State, be sued: (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question; … (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred … “,
6. Pp. 27–31.
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