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Rome II And Choice Of Law For Unjust Enrichment

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Chapter Summary

The rules in Rome II have been formulated using a particular choice of law method. Choices of law methods explain the way in which courts determine when to apply foreign law. Rome IIs Article 10 on unjust enrichment is a modern example of the traditional method. Each of the first three paragraphs uses a connecting factor: a closely connected relationship, joint habitual residence, and the place of enrichment. Rome IIs choice of law rule for unjust enrichment is organized into three hierarchical rigid sub-rules and then allows a flexible exception for each of those rules. If the unjust enrichment claims both (i) arises in the context of a pre-existing relationship between the parties and (ii) is closely connected to that relationship, then the applicable law is that of the relationship.

Keywords: conflicts of law; joint habitual residence; Rome; unjust enrichment



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