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Restitution in Private International Law,[1] by Dr George Panagopoulos, is the most comprehensive treatment of the topic to date. The work analyses complex issues of jurisdiction and characterisation, and critiques the various choice of law rules suggested by others, as they impact on claims for restitution. The author then promulgates an original choice of law approach. Although I am in respectful disagreement with aspects of the author’s thesis, the work is a worthy contribution to learning in the field. It restores balance to the choice of law debate for restitutionary issues. The author’s choice of law approach, which draws heavily on Birksian analysis, brings to the fore the place where the unjust factor arose. This is in contrast to other commentators, who have tended to ignore the place where the unjust factor arose.
The work, based on the author’s 1999 doctoral thesis,[2] does not attempt to deal with all aspects of the subject. Topics excluded from the scope of the book include subrogation, statutes and foreign judgments; these matters could be addressed in a second edition.[3]
The significant attention given by Panagopoulos to the question of jurisdiction in the context of claims for restitution is welcome. Any analysis of choice of law is enhanced by a proper understanding of the jurisdictional context in which the various claims arise. In no area is this more true than jurisdiction over foreign land, a topic which receives some attention in the book. The author upholds the view, correctly, that courts have jurisdiction over restitutionary claims involving foreign land.[4] However, the discussion would have been enhanced by an analysis of the authorities which have so often been relied on in support of a narrower view of jurisdiction.[5] Also, the author suggests that courts have jurisdiction over claims for restitution involving foreign land because such claims enforce rights in personam, rather than rights in rem.[6] Yet he accepts elsewhere in the book that some restitutionary claims require the adjudication of rights in rem.[7] At least as far as the traditional common law rules are concerned, jurisdiction over foreign land ought not to depend upon a priori distinctions based on the nature of the right being enforced. Apart from cases that come under the ambit of the European Judgments Convention,[8] it is preferable to accept that a court has jurisdiction over claims for restitution in respect of foreign land because and when the claim is for a remedy which operates in personam, even if the claim involves the determination of rights in rem in foreign immovables.[9]
Although there is much in the book deserving of comment, I wish to analyse two key areas: Panagopoulos’s preferred choice of law rule and his treatment of the topic of public policy.
Panagopoulos argues in chapter 8 that issues in unjust enrichment should be governed by the law of the place where the unjust factor arose or by the law of the place or legal system with which the unjust factor has its closest and most real connection.[10] He calls this rule ‘the proper law of the unjust factor’.[11] Although ‘[t]he proper law of the unjust factor will invariably depend on the particular circumstances giving rise to the alleged restitutionary liability ... as a matter of practice, it is necessary to consider the various “unjust” categories separately.’[12]
Panagopoulos gives a number of examples of the application of his proposed rule. These include:[13]
This is a novel and courageous approach. It attempts to focus on ‘the variety of circumstances in which a claim for unjust enrichment might arise.’[20] Panagopoulos’s arguments show that it is inappropriate to give necessary prominence (whether mandatory or presumptive) to the connecting factors so often identified by commentators, such as the place where a pre-existing relationship (if any) was centred, the lex situs in the case of immovables, and the place of enrichment in other cases.
With respect, however, Panagopoulos does not succeed in showing that, in their stead, necessary prominence ought to be given to the place where the unjust factor arose. The value of his thesis lies most in demonstrating that the place where the unjust factor arose ought not to be treated as necessarily less significant than other considerations, such as the place where the pre-existing relationship is centred, the lex situs or the place of enrichment. It may be that the most satisfactory approach is one which enables all features of the case to be taken into account and to be given such weight as is appropriate in the circumstances of the case.[21]
Panagopoulos’s main argument for giving prominence to the law of the place where the unjust factor arose, or the law of the place or legal system with which the unjust factor has its closest and most real connection, is to draw an analogy with tort choice of law rules.[22] According to his book, both tort and unjust enrichment are ‘non-consensual rights and obligations imposed by operation of law’.[23] Panagopoulos argues that in England the tort choice of law rule is, essentially, a statutory lex loci delicti approach.[24] He then argues that tortious issues are ‘almost invariably’[25] or at least ‘generally’[26] governed by the law of the place where the tortious acts were committed, rather than the law of the place where the damage was suffered. On his argument, such place is a more significant element of the tort than mere questions of causation and damage.[27] By analogy, he argues that the unjust factor lies ‘at the heart’ of the claim in unjust enrichment.[28] The other elements — ‘enrichment’ and ‘at the expense of’ — are ‘predominately’[29] or ‘essentially’[30] factual questions, which merely ‘complete’ the cause of action[31] and ‘assist’ in borderline cases.[32] With respect, the argument cannot be sustained by analogy with tort.
First, it is not self-evident that the place where the tortious acts were committed is inherently more significant than the place where the damage was suffered. In making that assertion, Panagopoulos relies heavily on cases decided in a jurisdictional setting.[33] Other decisions which are not mentioned in the text do not sit comfortably with the view that the place of acting is more important than the place of damage.[34]
But whatever may be the correct view about such considerations, the author’s tort analogy does not take him as far as he needs to go. He only asserts that the law of the place where the tortious acts were committed ‘generally’ governs tort issues. Whilst the Private International Law (Miscellaneous Provisions) Act 1995 (UK) contains a general lex loci delicti rule, and special rules which focus on or include the place where the damage was suffered, there is also a flexible exception where the law of another place is ‘substantially more appropriate’.[35]
Second, it is not unique to ‘torts’ and ‘unjust enrichment’ (as defined by Panagopoulos) that they arise by operation of law and without the consent of the parties. The same can be said about restitution for equitable wrongs, such as breach of fiduciary duty and breach of trust. Panagopoulos accepts that such issues should be governed by a more general proper law approach.[36] One would think that restitution for equitable wrongs would serve as a closer analogy to unjust enrichment than tort for choice of law purposes. Tort law often involves cases in which compensation for loss is claimed, and more often than not only provides for personal and not proprietary remedies.[37] Panagopoulos avoids such difficulties by simply describing unjust enrichment as giving rise to ‘obligations’.[38] He is at pains elsewhere in the book to point out that ‘obligations’ is inapt to refer to restitutionary proprietary remedies.[39]
Third, Panagopoulos suggests that in tort ‘[a] defendant should not be made liable pursuant to a particular law, where his acts are legitimate, or attract a different level of liability, under the law of the place where such acts were committed.’[40] By analogy, he argues, ‘[a] plaintiff should also not be able to recover an enrichment from a defendant, where, according to the law of the place where the alleged unjust factor arose, no such restitutionary liability attaches’.[41] This is then generalised into the multilateral choice of law rule referred to earlier.[42] But it is only plausible to make that analogy so long as one ignores an equally plausible analogy between the alleged tortfeasor and the party against whom restitution is sought. We may consider the case where restitution is denied by the law of the place where the unjust factor arose, but is allowed by the law of the place where the conduct on the part of the defendant leading to the enrichment occurs or where a change of position occurs. Applying the choice of law rules for tort as the touchstone, it could be said that the defendant ought to be required to make restitution just as easily as it could be said that the plaintiff ought not to be entitled to restitution. The flaw is also evident in the case where restitution is allowed by the law of the place where the unjust factor arose, but is denied by the law of the place where the defendant acted or where the change of position occurred. Applying the logic of the choice of law rules for tort, it is just as easy to conclude that the defendant should not be liable to make restitution as it is to conclude that the plaintiff should receive restitution.[43]
Since the tort analogy does not sustain Panagopoulos’s argument, we are left to consider whether his approach is justifiable on other grounds. With respect, it is submitted that it is not for at least six reasons.
First, Panagopoulos’s approach could lead to the application of an inappropriate law. To develop the point, a closer analysis of his theory is necessary. As the author accepts, it can be said at a general level that ‘matters of unjust enrichment are governed by the proper law of the alleged unjust enrichment’.[44] However, the author’s preferred choice of law rule, which he describes as ‘the proper law of the unjust factor’, is clearly different from a broader proper law approach.[45] According to Panagopoulos, ‘restitutionary issues are governed by the law, or the law of the place, with which the unjust factor has its closest and most real connection.’[46] The author says that this enquiry is more ‘specific’ than a general proper law test because it focuses on ‘the circumstances which give rise to the alleged right of restitution.’[47] That this is a more confined exercise is underscored by the fact that, at various places, Panagopoulos speaks of the place where the unjust factor ‘arose’ or the place where the events which render the enrichment unjust ‘occurred’.[48] The author emphasises the certainty and predictability of his approach, as compared with more general proper law approaches (including those with presumptive sub-rules) which he criticises as too uncertain.[49] On the other hand, he says that his approach has flexibility.[50] But this refers to the fact that the application of the rule varies with each unjust factor.[51] It also refers to the fact that the rule accommodates cases where elements of the unjust factor occur in more than one place, since the search is for the law or place having the ‘closest and most real connection’ to the unjust factor.[52]
The precise relationship between the author’s statement of his preferred choice of law rule and the ‘examples’ given for various unjust factors in chapter 8 is not entirely clear. On the one hand, the specific conclusions are offered as ‘examples’ of the application of the ‘proper law of the unjust factor’ rule, not as separate choice of law rules.[53] This is consistent with the fact that the discussion of some of the examples acknowledges the possibility (by the use of the word ‘generally’) that a conclusion different from the conclusions offered in the examples could be reached in an appropriate case. This includes cases of mistake, illegitimate pressure and failure of consideration.[54] However, other examples seem to state specific conclusions in rather definitive terms — for example, conclusions regarding unauthorised transfer,[55] legal compulsion,[56] ultra vires payments,[57] illegality and incapacity.[58] This seems to suggest that those conclusions are intended as principles or sub-principles in the sense that they are the only conclusions open in cases falling within the parameters of the examples postulated.
Whatever the status of the so-called ‘examples’, it seems clear that the focus of the enquiry is limited to those facts which bear upon the events or circumstances which allegedly render the enrichment unjust. All other possible connecting factors would seem to be irrelevant. That is the basis upon which Panagopoulos proceeds in his examples, in his reliance on the ‘logic of the choice of law rule for tort’[59] and in his criticism of the choice of law rules suggested by other commentators.[60]
So analysed, the author’s theory may lead to the application of an inappropriate law. This could occur, for instance, if there is an ‘unauthorised transfer’ of property situated in State A when all the other facts point to State B.[61] Another example may be if alleged illegitimate pressure is exerted and/or succumbed to in State A but all the other facts relate to State B, including the situs of the property and the centre of a pre-existing relationship between the parties. In that last example, let us further assume that the property is land situated in State B, and the plaintiff seeks a proprietary remedy. In such situations, it may be difficult to justify the application of the law of State A (unless State A is the forum and the law of State A is applicable on public policy grounds). Yet that is the result to which Panagopoulos’s theory would lead.[62] Such difficulties could have been overcome had the author adopted instead a presumptive rule pointing to the place where the unjust factor arose, subject to a flexible exception in favour of another law which is substantially more appropriate. Although the appropriateness of giving presumptive effect to the place where the unjust factor arose is questionable, such an approach would at least have allowed for the application of State A law in the above examples. Yet the author allows himself no room to contend for such an approach. It is not that far removed from a proper law test unregulated by any mandatory or presumptive sub-rules, a test which he criticises as too uncertain.
Second, the author’s preferred choice of law rule gives insufficient prominence to other factors, such as the place where a pre-existing relationship was centred, the lex situs (especially in the case of immovables) and the place of enrichment.
As for cases where the claim for restitution arises out of a pre-existing contractual relationship between the parties, it may often be appropriate to give particular weight to the law governing the actual or anticipated contract between the parties under which the benefit was conferred.[63] Where there is a pre-existing relationship between the parties of a non-contractual kind, the place where that relationship is centred may carry particular weight even when a constructive trust is claimed.[64] As Panagopoulos suggests, there may be cases where the proper law governing the contract pursuant to which the benefit was conferred is not appropriate to govern the restitutionary issue.[65] But this hardly warrants the conclusion that the proper law of the contract ought necessarily to have less prominence than the law of the place where the unjust factor arose.[66] The concessions made by Panagopoulos (referred to below) make considerable inroads into his view that the law where the pre-existing relationship between the parties was centred is irrelevant in ascertaining the choice of law for ‘unjust enrichment’ issues.[67]
With respect, the complete discounting of the lex situs and the place of enrichment is unsustainable. For example, where a restitutionary proprietary remedy is sought, it may be appropriate in some cases to give especial weight to the lex situs to govern unjust enrichment issues. This is particularly true when the enrichment is in the form of immovable property.[68] Even where a restitutionary personal remedy is sought and the factual matrix includes immovable property, it may be appropriate to give the lex situs particular weight in some cases. This is again especially so where immovable property or the proceeds of its sale constitute the enrichment,[69] though it may also be appropriate to give the lex situs particular weight in other cases where the enrichment arises in connection with immovables.[70]
Panagopoulos’s view is based on the argument that the unjust factor is the key element of the action. That element describes the reason for restitution and it is that element ‘through which a legal system imposes its particular legal values’.[71] But the conflict between laws may involve not only the unjust factor but also other elements, including whether the defendant was ‘enriched’, whether it was ‘at the expense of’ the plaintiff and whether there is a defence such as change of position. Such issues also reflect legal values, and can explain why restitution is or is not available. It is difficult to see why the law of the place where the unjust factor arose should necessarily have more to say about the liability (if any) to make restitution than the law of the place where the property in question is situated or the law of the place of enrichment.[72] Even where there is a conflict as to the unjust factor, it is not clear why the lex situs or the place of enrichment should be irrelevant. Although the place of enrichment can sometimes be fortuitous, that is not always so.[73]
Third, Panagopoulos’s argument focuses on the position of the plaintiff. Under his theory, the unjust factor usually arises in the place where the plaintiff acted or was impoverished or failed to receive an agreed reciprocation. This gives an a priori preference to facts which relate to the plaintiff over facts which relate to the defendant, or indeed over other potentially relevant facts. It may be one thing, in the case of wrongdoing, to give particular weight to the place of commission of the alleged wrongful acts for the reason given by Panagopoulos; in that instance, the focus of the claim is often on the fault of the defendant. However, it is another thing in the case of unjust enrichment; in that situation, the enquiry is simply whether the defendant has been unjustly enriched at the expense of the plaintiff. The focus of the claim is not always nor even usually the legitimacy of the conduct of the defendant, just as its focus is not always nor usually the legitimacy of the conduct of the plaintiff. It is about who is entitled to particular wealth, a matter which can often affect both parties — each ‘innocent’ — in an equal but opposite way. If the plaintiff is entitled to that wealth, the defendant is not, and vice versa. A defendant is just as interested in arguing that the receipt was not ‘unjust’, or that he or she was not ‘enriched’ at all (perhaps because he or she subjectively devalues particular services) or that there was a change of position, as the plaintiff is in arguing the reverse.
The plaintiff-focus of Panagopoulos’s theory is exemplified by the ‘strong commercial arguments’ relied on in his book.[74] For example, ‘banks and other financial institutions can know their position in advance in relation to inevitable mistakes’.[75] He is referring to banks in the position of payer, not payee. This overlooks the commercial interests of defendants, for instance in security of receipt and in avoiding liability arising under some foreign law.[76] It also overlooks the interests of a defendant who changes his or her position in good faith in reliance on the entitlement to keep the benefit. Panagopoulos does not say why the law of the place where the unjust factor arose should regulate such an issue.[77]
The effect of this is that Panagopoulos’s theory could in some cases lead to questionable victories for plaintiffs. For example, suppose that in The Evia Luck the plaintiff had carried on business in Sweden, though its head office was in England.[78] Even though the pressure was exerted in Sweden, the unjust factor would still have arisen in, or been most closely connected to, England, where the plaintiff succumbed to the pressure by paying monies to the defendant there.[79] In the absence of any effectual choice of law, it may be difficult to conclude that English law ought to be applied to allow restitution had Swedish law denied restitution. One reason for this may be, as Panagopoulos himself argues, ‘[i]f ... the plaintiff chose to conduct his affairs in a particular jurisdiction and receives a particular form of pressure which is legitimate there, he cannot complain of the legitimacy of such pressure’.[80]
Conversely, on Panagopoulos’s approach, defendants could sometimes retain windfall gains when that result is difficult to justify. This is because, on his theory, if the law of the place where the unjust factor arose denies restitution, that law must always be applied even if the defendant was enriched, acted and/or changed his or her position in another place, the law of which allows restitution. The point is that, whilst Panagopoulos’s theory may lead to just results in some cases, this is only because of the existence of other facts which are not stated (which, indeed, his theory requires to be ignored). Once those other facts are changed, the assumptions on which the choice of law outcome is premised may also change.
Fourth, by giving prominence to the ‘unjust factor’, Panagopoulos’s approach differs significantly from the proper law tests which he advocates for some claims for restitution. Panagopoulos argues that, in claims for restitution of benefits conferred under an ineffective contract, the question whether the contract is valid is a ‘contractual’ issue to be governed by the proper law of the contract.[81] He also argues that claims for restitution for breach of fiduciary duty, though ‘wrong’-based, should be governed by the law of the ‘consensual’ or ‘contractual’ relationship between the principal and fiduciary.[82] Panagopoulos also argues that claims for restitution as between trustee and beneficiary are ‘trust’ issues governed by the proper law of the trust.[83] He classifies necessitous intervention as ‘contractual’ or arising under a trust.[84] Whether or not one agrees in all cases with the categories into which he places those issues, the point is that the author argues that all such issues are governed by a general proper law approach. If a general proper law approach is not objectionable in those contexts, why is such an approach inappropriate for issues which Panagopoulos characterises as lying within ‘unjust enrichment’?[85] The issues in those contexts[86] arise in claims for restitution. The issue, in at least one of those instances, even on a Birksian analysis, is plainly an issue of unjust enrichment by subtraction.[87] Panagopoulos’s approach drives an inconvenient wedge between claims for restitution, according to whether or not the issue is one of ‘unjust enrichment’.[88]
Fifth, Panagopoulos’s approach does not provide the predictability he asserts. There is generally enormous room for movement in characterising the issue; in choosing between unjust enrichment, wrong, tort, contract, trust, property and so forth. These labels are sufficiently flexible to allow courts to reach the desired outcome by manipulation of the characterisation process. Are claims for restitution for breach of fiduciary duty to be treated as ‘restitution for wrongdoing’ or ‘restitution for unjust enrichment’?[89] Are constructive trusts to reverse unconscientious receipt generated by unjust enrichment,[90] are they restitution for a wrong, or are they about fulfilling expectation losses?[91] If the view that resulting trusts reverse unjust enrichment is only ‘respectable’,[92] what room must there be for alternative classifications?
Moreover, the process of characterising the appropriate unjust factor involves considerable uncertainty. The ‘reason for restitution’ is a matter upon which reasonable minds can, and often do, differ. For instance, the reason for restitution in some cases can be attributed to any one or more of free acceptance, mistake or failure of consideration. Some fact patterns may be characterised as either an ‘unauthorised transfer’ on the one hand, or as a mistake on the other. An ultra vires payment could alternatively be characterised as either a mistake, an instance of illegitimate pressure, of legal compulsion and/or a failure of consideration. Other examples can readily be imagined.[93] In such situations, there is little if any logical reason why one of those unjust factors should be preferred over the other. Yet the choice of law consequences of choosing one as opposed to another could be quite pronounced.
The uncertainty of the process is compounded by three factors: first, as Panagopoulos recognises, his examples do not exhaust all possible unjust factors;[94] secondly, the relevant unjust factor need not square up with categories in domestic law;[95] and thirdly, some foreign laws may not recognise any unjust factor at all.[96]
Even once the issue is characterised and the unjust factor identified, there is still considerable uncertainty in its interpretation. That is to say, it is not necessarily clear where the unjust factor arose or with what place or law it has its closest and most real connection. One example is where there is an unauthorised interference with assets situated in several jurisdictions.[97] Does that mean that the law of each separate place of interference applies? Another example is where the interference occurs from a remote computer terminal in another country. Does the interference occur at the remote terminal or where the property is situated?[98] The way in which some assets are held may add further complexities.[99] A failure of consideration example is provided by a defendant who is at liberty to provide the agreed reciprocation in more than one place.[100] Even in the examples given in chapter 8, the answers Panagopoulos gives are far from self-evident. Why should the place where the illegitimate pressure arose necessarily be the place where the plaintiff succumbed to the pressure?
Panagopoulos’s approach puts a premium on questions of characterisation and interpretation of ‘connecting factors’. It emphasises debates on issues which are inherently susceptible to differences of opinion. Such debates are sometimes arid. There would seem to be few situations in domestic law where anything turns on whether the claim is characterised one way as opposed to another.[101] In the choice of law process also, such debates are sometimes removed from the reasons which actually inform choice of law outcomes. This is one advantage of a more flexible choice of law approach over the methodology of Panagopoulos. It reduces the importance of arid domestic law debates by giving more prominence to the conflict of laws reasons why a particular law is to be applied. This avoids manipulation of concepts in order to arrive at a favoured choice of law outcome on grounds which are not articulated. I respectfully agree with Panagopoulos when he says that it is preferable to acknowledge the actual ground upon which choice of law decisions are made, rather than resort to malleable categories which ‘can be interpreted and applied by the courts so as to achieve a desired result.’[102]
Sixth, Panagopoulos cites no authority which, in its reasoning, applies the proper law of the unjust factor. Indeed, he argues that the authorities are inconclusive and the field is ‘wide open’ for the promulgation of a new rule.[103] This analysis misrepresents the state of authority. The fact that some judicial observations may have been obiter is insufficient reason to discard them altogether.[104] Moreover, there are many decisions concerning foreign land which are a fertile source of choice of law rules, some of which are inconsistent with Panagopoulos’s theory.[105] Although he recognises the potential for choice of law assistance from such cases,[106] he excludes most of them from his analysis of ‘The Existing Authorities’ in chapter 6.
In various places throughout the book, Panagopoulos usefully illustrates some of the ways in which public policy can impact upon choice of law for restitutionary issues. He accepts that
public policy considerations may be relevant in some of the categories of cases recognised by Lee, such as the deliberate commission of illegal acts, fraudulent evasion of law, fraud or duress against the owner of property or other immoral conduct ...[107]
He gives helpful examples of some of those categories. These examples include a case where a claim for restitution failed because of the forum’s public policy against the deliberate commission of acts made illegal by the law of a friendly foreign state.[108] He also gives a fraud example, where a restitutionary tracing claim is resisted on the ground that the defendant has acquired title to the property under the lex situs, even though he or she acted fraudulently.[109] The defendant’s contention fails. Panagopoulos also gives a duress example:
A induces B, through threats of criminal prosecution, to enter into a contract for the lease of premises in Ruritania for 5 years. The contract is executed in England and is expressed to be governed by the law of Ruritania. B brings proceedings in England seeking a declaration that the contract was void and restitution of moneys paid.[110]
Panagopoulos argues that English law applies, on the ground of public policy, to hold the contract invalid, whatever the law of Ruritania may say on that point.[111] Elsewhere, he also points to recent authority which suggests that public policy concerns are not raised by economic duress of the kind that occurred in The Evia Luck[112] as distinct from other more ‘shocking’ forms of duress.[113]
However, Panagopoulos’s views regarding public policy would have been clearer had he addressed the relevant matters in a separate chapter rather than in disparate places. The way he addresses the issue may reflect a view that public policy only has a minor role to play in restitution cases. Panagopoulos perhaps seeks to limit the relevance of public policy to cases where it is applied ‘negatively’, for instance to prevent the defendant raising a particular defence.[114]
I have previously canvassed the authorities which support the view that public policy can apply not only ‘negatively’ but also ‘positively’ in some claims for restitution.[115] Public policy issues in restitution cases are not only raised where the rationale of a foreign law is itself morally repugnant or obnoxious. Public policy is not limited to laws which provide that ‘one who steals property is not unjustly enriched’.[116] They also arise where the result to which a law would lead is contrary to public policy, even if the content of the law in question is not itself morally repugnant or obnoxious.[117] This may occur, for example, when restitution is denied against (or resolved more favourably to) a fraudster because of the absence of a fiduciary relationship, the limitations of particular tracing rules, the acquisition of title by the defendant under the lex situs, or the availability of a defence such as change of position. Indeed, it is in areas such as these where conflicts of laws are often likely to arise in restitution claims.
Panagopoulos’s position on this argument is not entirely clear. As noted already, he accepts the kinds of issues which may invoke public policy concerns.[118] However, having accepted that premise, Panagopoulos seems to conclude that such public policy considerations should be ignored in relation to restitutionary issues unless public policy is raised ‘negatively’, for instance to prevent reliance on a defence.[119] His reliance on the ‘orthodoxy’ that public policy cannot be used as a sword, only as a shield,[120] is surprising given his duress example referred to above.[121] In that example, public policy is applied affirmatively to establish a precondition for success in the claim for restitution, namely that the contract is ineffective.[122]
Of course, the ‘orthodox view’ accepts that a separate choice of law principle applies to restitution cases where public policy is relied on ‘negatively’. The contentious area relates to cases where public policy is relied on ‘affirmatively’ by a party claiming restitution. It has been argued elsewhere that the distinction between the ‘negative’ and ‘positive’ aspects of public policy is unsustainable, both in principle[123] and on authority.[124] Those arguments will not be restated here. It is sufficient to note that Panagopoulos does not attempt to justify the distinction.[125] Nor does he cite authority in support of the ‘orthodox view’, other than academic commentaries.[126] Rather, concessions made by him show why the orthodoxy cannot be sustained. Panagopoulos accepts that public policy can be relevant when a defendant to a tracing claim argues that he or she has acquired title to the property in question,[127] where to allow the ‘defence’ would be contrary to public policy. Given that, why is public policy not also relevant to ‘knowing receipt’ claims where the identical issue of acquisition of title arises as an element of the plaintiff’s claim?[128] In fact, if forum public policy can be relevant in the case of a ‘defence’ of acquisition of title, it is difficult to understand why it can never be relevant where a proprietary interest is sought to be created by the imposition of, say, a constructive trust nor indeed where an order is sought requiring a defendant to pay the value of an enrichment received. The distinction between the positive and negative application of public policy is too arbitrary to warrant the obnoxious conflict of laws consequences to which Panagopoulos’s position leads when applied.[129]
The so-called orthodoxy that public policy can only be applied negatively is the child of commentators, and does not reflect what the courts are doing in practice. The ‘orthodoxy’ is inconsistent with the many authorities which have applied the lex fori positively in favour of a party claiming restitution when this was warranted on public policy grounds.[130] Those commentators who maintain that public policy only applies negatively conveniently ignore those authorities, rejecting them as ‘wrong’ without close analysis of what each of those cases actually decided.[131]
Panagopoulos argues that the ‘positive’ application of public policy does not occur in other areas, and that my thesis[132] requires a choice of law approach to restitutionary issues which differs from choice of law approaches for other issues arising in the conflict of laws.[133] This argument proceeds on three erroneous assumptions. First, it ignores the occasions where public policy is applied as a ‘shield’. Second, the argument assumes that there are no authorities which require public policy issues to be treated in a different way from other issues arising in restitution claims. The way commentators have, incorrectly, marginalised and ignored the many authorities directly on point has been dealt with elsewhere.[134] Third, the argument assumes that public policy is not applied ‘positively’ in relation to relief other than restitution. Examples disproving this assumption include some issues in contract,[135] some injunctions,[136] and arguably some cases of unconscientious conduct in the context of substantive estoppel.[137] Also, no-one seems to doubt that forum statutes and mandatory laws can be relied on ‘positively’ by a claimant, whatever may be the claim.[138]
Therefore, the suggestion that my thesis ‘requires an overhaul of the entire conflict of laws’ is an overstatement.[139] Certainly, further work needs to be done in the area of public policy, with a view to bringing the commentaries into line with the case law (and not only in the field of restitution). It is also true that an overhaul would be necessary if Anglo-Australian law were to move towards American-style interest analysis. But I made it quite clear that even if a ‘proper law’ or some other modern choice of law approach is adopted for restitution claims, both case law and principle nevertheless demand that public policy issues be addressed differentially.[140]
It proves too much to assert that all restitution issues raise public policy concerns or that public policy cannot be addressed at all without adopting some kind of American-style interest analysis.[141] It is clear that many claims in restitution do not raise public policy issues. When it is borne in mind that public policy is based on existing authority and can sit side by side with a modern choice of law approach for restitution claims, Panagopoulos’s concerns about lack of certainty appear overstated. Indeed, uncertainty has arisen because commentators have not troubled themselves overly with public policy.
Panagopoulos’s other major argument is that separate treatment for public policy issues is not necessary if one adopts a modern ‘sophisticated’ choice of law rule for restitution issues.[142] However, the assertion that public policy is unnecessary cannot withstand analysis. Neither Panagopoulos’s preferred choice of law rule nor any other ‘sophisticated’ solution proffered by other Anglo-Australian commentators has a result orientation. They are result-neutral. They only look to and (in some cases) weigh up various territorial and/or personal connecting factors. Examples given by Panagopoulos elsewhere in his book demonstrate the very reason why separate treatment of public policy issues is necessary. For instance, in his discussion of the Thahir case,[143] he asserts that it is the law with the closest and most real connection to the restitutionary issue that must be applied — in that case, a foreign law — notwithstanding the fact that that law would deny restitution or would be less favourable in terms of relief.[144] Panagopoulos maintains this position even though, in that case, the enrichment had been situated in the forum for some 20 years, the defendants (or those through whom they claimed) had acted fraudulently and forum’s law allowed restitution.[145] Such an argument affronts common sense and decided authority.
There is little to commend the ‘proper law of the unjust factor’ as the choice of law rule for issues in unjust enrichment. However, Panagopoulos has shown to be unsustainable the approaches of commentators who give necessary prominence to the place where a pre-existing relationship was centred, the lex situs or the place of enrichment. By identifying and articulating other connecting factors and suggested conflicts principles, the author leaves one with the impression that the question is far too complex for the outdated techniques of mechanical jurisprudence. As far as the author discusses how public policy impacts upon choice of law in unjust enrichment, he unfortunately clings to the ‘orthodoxy’ that public policy can only be applied negatively, to defeat a defence, and not positively. However, the examples given by Panagopoulos and the arguments offered by him only serve to illustrate why that so-called orthodoxy is unsound.
STEPHEN LEE[*]
[1] George Panagopoulos, Restitution in Private International Law (2000).
[2] George Panagopoulos, Restitution in Private International Law (D Phil Thesis, Oxford University, 1999).
[3] In relation to enforcement of foreign restitutionary proprietary decrees, see Duke v Andler [1932] SCR 734; Stephen Lee, ‘Jurisdiction over Foreign Land: A Re-Appraisal’ (1997) 26 Anglo-American Law Review 273, 306–28.
[4] See, eg, Panagopoulos, above n 1, 221–5.
[5] See, eg, Innes v Mitchell (1857) 4 Drewry 57; [1857] EngR 749; 62 ER 22; Re Hawthorne; Graham v Massey [1883] UKLawRpCh 118; (1883) 23 ChD 743; Ross v Ross (1892) 23 OR 43; Purdom v A E Pavey & Co (1896) 26 SCR 412.
[6] Panagopoulos, above n 1, 224.
[7] Ibid 76–81.
[8] Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, opened for signature 27 September 1968, [1968] OJ L 304, 36 (entered into force 1 February 1973); consolidated version last reprinted [1998] OJ L 27, 1.
[9] See Stephen Lee, ‘Title to Foreign Real Property in Transnational Money Claims’ (1995) 32 Columbia Journal of Transnational Law 607; Lee, ‘Jurisdiction over Foreign Land’, above n 3.
[10] Panagopoulos, above n 1, 164, 167.
[11] Ibid 166.
[12] Ibid 166–7.
[13] Other examples involve restitution for wrongs, ultra vires payments, illegality and incapacity, non-voluntary transfer and unconscientious receipt: ibid 168, 174–5, 180–1. See also Panagopoulos’s summary table at 181 (Table 2).
[14] Ibid 168.
[15] Ibid 170.
[16] Ibid.
[17] Ibid 172.
[18] Ibid 173.
[19] Ibid 175.
[20] Ibid 168.
[21] I have previously expressed a personal preference for the approach in § 221 of the United States Restatement (Second) of the Conflict of Laws (1969): Stephen Lee, ‘Restitution, Public Policy and the Conflict of Laws’ [1998] UQLawJl 1; (1998) 20 University of Queensland Law Journal 1. As Anglo-Australian law may not yet be ready to admit ‘state interests’, a similar test could be defined by reference to the law which has the most significant relationship to the restitutionary issue, arrived at by weighing not only all potentially applicable connecting factors but also any relevant conflicts principles. An example of such a principle may be the desirability of upholding autonomy to choose a governing law.
[22] See generally Panagopoulos, above n 1, 159–66.
[23] Ibid 160.
[24] Ibid 160–1.
[25] Ibid 161.
[26] Ibid 164.
[27] Ibid 161, 164.
[28] Ibid 159, 166.
[29] Ibid 159; see also at 164.
[30] Ibid 164.
[31] Ibid 164, 165.
[32] Ibid 159.
[33] See, eg, ibid 161 fn 13, 162 fnn 14, 15, 17–21.
[34] Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] UKPC 12; [1987] 1 AC 871, 897; Ward v The Queen [1980] HCA 11; (1980) 142 CLR 308; SS Lotus (France v Turkey) 1927 PCIJ (Ser A) No 10, 23. See also Gutnick v Dow Jones & Co Inc [2001] VSC 305 (Unreported, Hedigan J, 28 August 2001); special leave to appeal to the High Court has been granted: Transcript of Proceedings, Dow Jones & Co Inc v Gutnick (High Court of Australia, Gleeson CJ and Hayne J, 14 December 2001).
[35] Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42, ss 11(2)(a)–(c), 12. See generally Panagopoulos, above n 1, 160–1.
[36] He characterises both types of breach as ‘wrongs’ but argues that the proper law of the ‘consensual’ or ‘contractual’ relationship applies: see, eg, Panagopoulos, above n 1, 88–90, 150, 268 (example 9).
[37] There are some exceptions: cf Michael Scott, ‘The Right to “Trace” at Common Law’ (1965–66) 7 University of Western Australia Law Review 463.
[38] Panagopoulos, above n 1, 160.
[39] See, eg, ibid 113, 154.
[40] Ibid 164.
[41] Ibid.
[42] Panagopoulos does not seem to be advocating a specific ‘one-sided’ choice of law principle which only speaks to occasions when the plaintiff fails under the law of the place where the unjust factor arose: ibid 164, 170.
[43] Perhaps Panagopoulos’s theory involves circularity of reasoning. It is only after you have identified the governing law and then determined whether that law recognises a right to restitution that you can arrive at the conclusion that the enrichment was or was not ‘unjust’.
[44] Panagopoulos, above n 1, 159.
[45] See, eg, ibid 159–60, 166, 167.
[46] Ibid 167.
[47] Ibid 166. See also at 263.
[48] Ibid 164, 166, 175–6. He describes the place where the unjust factor arose as a ‘connecting factor’: at 159.
[49] Ibid 166.
[50] Ibid 166, 263.
[51] Ibid 159, 263.
[52] As is suggested by Panagopoulos’s discussion of mistake, ibid 168–9, and of illegitimate pressure, at 169–71.
[53] Ibid 168.
[54] Ibid 168, 170, 171.
[55] Ibid 173–4.
[56] Ibid 175–9. ‘This will be the legal system with which the facts surrounding the plaintiff’s alleged compulsion have occurred or are most closely connected’: at 175. Panagopoulos does not seem to allow an exception here: see at 176, where he rejects an exception.
[57] Ibid 180.
[58] Ibid 180–1.
[59] Ibid 263. See also at 160–5.
[60] Eg, ibid 150–1, where Panagopoulos seems to suggest that the law of any pre-existing relationship is only relevant to claims for restitution for breach of trust and for breach of fiduciary duty, which he accepts should be governed by a more general proper law approach, or to ‘contractual’ issues such as whether the contract is ineffective. See also the example given at 176. Panagopoulos seems to imply that the lex situs is usually only relevant to rights in rem in property: at 74, 78 and 152. In relation to the place of enrichment, see also at 134–40.
[61] See Panagopoulos’s analysis, at ibid 173–4, of El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717 (Chancery Division), rev’d on other grounds [1993] EWCA Civ 4; [1994] 2 All ER 685 (Court of Appeal). Cf Sill v Worswick [1791] EngR 1434; (1791) 1 H Bl 665; 126 ER 379; Hunter v Potts [1791] EngR 1281; (1791) 4 TR 182; 100 ER 962; Phillips v Hunter [1795] EngR 4056; (1795) 2 H Bl 402; 126 ER 618; Hayden v Yale, 12 So 633 (La, 1893).
[62] These illustrations assume that the specific conclusions given by Panagopoulos in his ‘examples’ are adopted. But a law applied as a result of the ‘proper law of the unjust factor’ test could be inappropriate even if a particular unjust factor were held to have its closest and most real connection with some law or place different from that suggested by the author.
[63] See, eg, Phoenix Canada Oil Co Ltd v Texaco Inc, 560 F Supp 1372, 1379, 1382–3 (Del, 1983) (Schwartz J); Alaska Airlines Inc v United Airlines Inc, [1990] USCA9 379; 902 F 2d 1400 (9th Cir, 1990); and see the cases cited in Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 15 fn 78, 19 fnn 101–2, 21 fn 109, 31 fn 170, 33 fn 179. Where no law is chosen by the parties (or the choice of law is not ‘bona fide and legal’: cf Vita Food Products Inc v Unus Shipping Co [1939] AC 277, 290 (Privy Council)), the proper law of the contract will be the law with which the contract has its closest and most real connection, objectively ascertained. Where there is a bona fide and legal choice of law, that will be the proper law of the contract.
[64] See the cases cited in Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 24 fnn 126, 128; Rudow v Fogel, 426 NE 2d 155 (Mass App Ct, 1981); Ex Parte Pollard (1840) Mont & Ch 239, 251; Pettkus v Becker (1980) 117 DLR (3d) 257, 278; and cf Gorash v Gorash [1949] 4 DLR 296, 302 (Coady J) (BCSC).
[65] See Panagopoulos, above n 1, 148–9.
[66] Compare the 10th example given by Panagopoulos: ibid 268–9.
[67] This includes claims for restitution for breach of trust and for breach of fiduciary duty, which he accepts should be governed by a more general proper law approach. It also includes the question whether the contract is ineffective, in which case he argues that it is governed by the proper law of the contract.
[68] See, eg, Ross v Ross (1892) 23 OR 43, 45 (Strong CJ); Purdom v A E Pavey & Co (1896) 26 SCR 412, 416 (Osler JA); cf Gunn v Harper (1901) 2 OLR 611, 615, 619–20 (Moss JA). See also United States authorities where the lex situs was applied in resulting trust/constructive trust cases: eg Hawley v James, 7 Paige Ch, 213, 219 (NY Ch, 1838); Weston v Stuckert, [1964] USCA1 19; 329 F 2d 681, 681–2 (1st Cir, 1964) (Maris J); Re Janis, 60 BR 349 (Bankr SD Fla, 1986); McGean v McGean, 339 A 2d 384 (DC Ct App, 1975); Hardy v Hardy, 250 F Supp 956 (DC Cir, 1966); Arbury v De Niord, 152 NYS 763 (Sup Ct, 1915). For an example involving tangible chattels where the lex situs was applied, see River Stave Co v Sill (1886) 12 OR 557.
[69] See, eg, Re Hawthorne; Graham v Massey [1883] UKLawRpCh 118; (1883) 23 ChD 743, 746–7 (Kay J).
[70] See, eg, Batthyany v Walford [1886] UKLawRpCh 200; (1886) 33 ChD 624; aff’d [1887] UKLawRpCh 131; (1887) 36 ChD 269 (cross-claim for rents paid in advance and for improvements); First Wisconsin Trust Co v Schroud, [1990] USCA7 932; 916 F 2d 394, 399 (7th Cir, 1990) (Kanne J).
[71] Panagopoulos, above n 1, 165, and see 159–60.
[72] Cf the example in ibid 148–9.
[73] Cf Sumitomo Bank Ltd v Thahir [1993] 1 SLR 735 and Thahir v Pertamina [1994] 3 SLR 257, where the funds were held in a joint account in Singapore for some 20 years. See Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 22, 29–30.
[74] Panagopoulos, above n 1, 169.
[75] Ibid 169; see also at 166.
[76] A policy which Panagopoulos recognises in other areas: eg ibid 62–3, 78–9, 152.
[77] Ibid 37–8. Panagopoulos argues that a defence of change of position should be governed by the same law governing the principal restitutionary issue.
[78] Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152 (‘The Evia Luck’).
[79] Panagopoulos, above n 1, 170–1.
[80] Ibid 171.
[81] See, eg, ibid 146–7.
[82] Eg ibid 88–90, 268 (example 9).
[83] Ibid 150. Examples may include a claim by a beneficiary against a trustee for restitution for breach of trust, or a claim by a trustee against a beneficiary for restitution of a mistaken payment. See also Convention on the Law Applicable to Trusts and on Their Recognition, opened for signature 1 July 1985, 1664 UNTS 311, art 8(d), (g), (i), (j) (entered into force 1 January 1992); see Schedule to the Trusts (Hague Convention) Act 1991 (Cth) and Schedule to the Recognition of Trusts Act 1987 (UK) c 14.
[84] Panagopoulos, above n 1, 104–5.
[85] Panagopoulos’s acceptance of a proper law approach in other contexts undermines his criticism that a proper law approach for unjust enrichment is too uncertain: ibid 154–5.
[86] See above nn 81–84 and accompanying text.
[87] Recovery of a mistaken payment by a trustee from a beneficiary.
[88] Cf Panagopoulos, above n 1, 174–5, where the author recognises that if, contrary to his view, restitution for wrongs is to be characterised as unjust enrichment, then the governing law would be the proper law of the wrong.
[89] Cf ibid 9, 84–6, 174–5.
[90] Cf ibid 168.
[91] Eg ibid 129 fn 102, 168 fn 40.
[92] Ibid 73, 168 fn 40, 223.
[93] See ibid 172–3 and 181, where Panagopoulos explains Baring Brothers & Co Ltd v Cunninghame District Council (Unreported, Scottish Court of Session, 24 May 1996) as either failure of consideration or incapacity.
[94] Panagopoulos, above n 1, 168.
[95] Ibid 167–8.
[96] Ibid 182–3.
[97] Cf Firestone v Galbreath, 722 F Supp 1020 (SDNY, 1989).
[98] Cf Gutnick v Dow Jones & Co Inc [2001] VSC 305 (Unreported, Hedigan J, 28 August 2001); special leave to appeal to the High Court has been granted: Transcript of Proceedings, Dow Jones & Co Inc v Gutnick (High Court of Australia, Gleeson CJ and Hayne J, 14 December 2001).
[99] See, eg, The Oxford Colloquium on Collateral and Conflict of Laws, Special Supplement to (1998) 13(9) Butterworths Journal of International Banking and Financial Law.
[100] Cf BP Australia Ltd v Wales [1982] Qd R 386. Note also that Panagopoulos says that the proper law will ‘generally be the law of the place with which the failure of consideration has its closest and most real connection’: above n 1, 171. The inclusion of ‘generally’ is either an oversight or indicates an exception which is not explained.
[101] An exception may be statutes of limitations. Jurisdictional rules sometimes require a view to be taken on such matters, but the law of jurisdiction is informed by policies other than those surrounding choice of law.
[102] Panagopoulos, above n 1, 140.
[103] Cf ibid 2, 111, 121, 125.
[104] Ibid 111, 121–31.
[105] For a discussion of these authorities see Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 6–7 and see above nn 64, 68–70.
[106] Panagopoulos, above n 1, 74.
[107] Ibid 143.
[108] See ibid 172–3, referring to Etler v Kertesz (1961) 26 DLR (2d) 209, 223 (Porter CJ) (Ont CA).
[109] Panagopoulos, above n 1, 80. The author also admits that the defence would fail if the foreign law on which the defendant relies is otherwise contrary to public policy.
[110] Ibid 265–6 (example 2).
[111] I respectfully agree with this conclusion, at least if A is an English resident or the moneys were paid in England.
[112] The Evia Luck [1992] 2 AC 152.
[113] Panagopoulos, above n 1, 56, citing Royal Boskalis Westminster NV v Mountain [1999] QB 674, 724 (Phillips LJ), 689 (Stuart-Smith LJ). Cf Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 17.
[114] See Panagopoulos, above n 1, 81, 142, 172–3.
[115] Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 4–6, 15–37.
[116] This is the sense in which I made the observation, taken out of context by Panagopoulos at above n 1, 142, that ‘the invocation of forum public policy should not depend so much on the form, content or rationale of foreign law as it does on the result to which foreign law would lead as compared with the relief which is available on the evidence under forum law’: Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 9.
[117] Cf A-G (UK) v Heinemann Publishers Australia Pty Ltd [No 2] [1988] HCA 25; (1988) 165 CLR 30, 50 (Brennan J); De Santis v Russo [2001] QSC 65 (Unreported, Atkinson J, 12 March 2001) [21], [22]; rev’d on another ground [2001] QCA 457 (Unreported, McPherson and Thomas JJA, Cullinane J, 26 October 2001).
[118] Acceptance of that much is inevitable. See the authorities discussed in Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 11–37, and those cited above nn 108, 113, 117. Cf also Israel Discount Bank of New York v Hadjipateras [1984] 1 WLR 137, 143 (Stephenson LJ), 147 (O’Connor LJ); and Larnach v Alleyne (1862) 1 W & W (E) 342.
[119] Panagopoulos, above n 1, 81, 142. This is also shown by examples given by Panagopoulos in chapter 8 and the appendix.
[120] Ibid 142.
[121] Ibid 265–6 (example 2). Cf also Panagopoulos’s reliance on fraud as a reason for not applying the lex rei sitae to questions of title to property in the case of intervening transfers: at 101–2.
[122] In that example, Panagopoulos evidently seeks to draw a distinction between the ‘contractual’ issue of whether the contract is valid — as to which he accepts public policy can, exceptionally, be relied on affirmatively — and the restitutionary issue of whether the plaintiff can get restitution of the monies paid under that contract, where he apparently contends that public policy has no role to play. It is difficult to understand how it can be argued that public policy cannot be relevant to the latter when it is relevant to the former.
[123] Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 4–6.
[124] Ibid 15–37.
[125] One argument made more generally by Panagopoulos is that, because restitution cases do not usually raise issues of public policy, this warrants the conclusion that all restitution issues should be treated in the same way, whether or not they raise public policy concerns — in other words, public policy should be ignored. This argument lacks appeal.
[126] Panagopoulos, above n 1, 142 fn 52.
[127] Ibid 81.
[128] Ibid 92–4.
[129] See Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 18, 26, 27 fn 145, 28–9; cf Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418.
[130] Some of the cases are discussed in Lee, ‘Title to Foreign Real Property’, above n 9, 657–65; Lee, ‘Jurisdiction over Foreign Land’, above n 3, 293–302; Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 15–37.
[131] See, eg, Panagopoulos, above n 1, 141, where he ‘rejects’ the cases which he says decide ‘that equitable issues should be governed by the law of the forum’.
[132] As put forward in Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21.
[133] Ibid 142.
[134] Ibid 6–7, 13–37. Other cases ignored include Sill v Worswick [1791] EngR 1434; (1791) 1 H Bl 665; 126 ER 379; Hunter v Potts [1791] EngR 1281; (1791) 4 TR 182; 100 ER 962; Phillips v Hunter [1795] EngR 4056; (1795) 2 H Bl 402; 126 ER 618; Hayden v Yale, 12 So 633 (La, 1893).
[135] See, eg, the duress example referred to above: Panagopoulos, above n 1, 265–6 (example 2).
[136] See, eg, CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391–2 including fnn 113–14 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ); Portarlington v Soulby [1834] EngR 633; (1834) 3 My & K 104; 40 ER 40; Cole v Cunningham, [1890] USSC 18; 133 US 107 (1890); and see Lee, ‘Jurisdiction over Foreign Land’, above n 3, 294 fnn 113–14, 301 fn 151.
[137] Cf Chalmers v Pardoe [1963] 1 WLR 677. The myth that estoppel can only be raised as a shield has now been exploded in Australian domestic law: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
[138] Panagopoulos would seem to agree that no sensible distinction can be drawn between such laws and purely private law obligations (cf Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 5). For example, he makes the following observation: ‘even in the case of a purely private right, an affected state may have just as much of an interest in applying its law as it would in the case of a law of a public nature. It has an interest in ensuring that ... unjust enrichment is reversed’: above n 1, 118 fn 37.
[139] Panagopoulos, above n 1, 142.
[140] Lee, ‘Restitution, Public Policy and the Conflict of Laws’, above n 21, 2, 37.
[141] Panagopoulos makes this assertion in a number of subtle ways. He discusses my thesis under the heading ‘Lex Fori’: above n 1, 141–3. He suggests that ‘Lee’s approach amounts to a marriage between a general lex fori choice of law rule and the American interest analysis’: at 142. He also attempts to draw an analogy between my thesis and that of Ehrenzweig: at 142 fn 49.
[142] Panagopoulos says that ‘[i]f Lee’s thesis is correct, all that it tells us is that courts were able to overcome an inadequacy in the conflict of laws to deal with [restitutionary] topics, given the unavailability of a sophisticated, or any, choice of law rule, by applying the lex fori’: ibid 142–3.
[143] Sumitomo Bank Ltd v Thahir [1993] 1 SLR 735 and Thahir v Pertamina [1994] 3 SLR 257; see also above n 73 and accompanying text.
[144] See, Panagopoulos, above n 1, 130–1.
[145] Ibid.
[*] BA, LLB (Hons) (Qld), BCL (Oxon), JSD (Columbia); Barrister of the Supreme Court of Queensland; Attorney-at-Law (New York).
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