Restitution in the conflict of laws: characterization and choice-of-law in Australia

In various common law jurisdictions, the doctrine of unconscionability is increasingly being adopted as an explanatory principle of restitution. This equitable characterization at the municipal level has significant implications for private international law. In particular, the issues of characterization and choice-of-law are brought to the fore. This paper approaches those issues from an Australian perspective. Indeed, in the post-Brexit era, it may be expected that the courts of the United Kingdom will be looking more closely to other common law jurisdictions, notably Australia, New Zealand, Canada, and the United States. The paper proposes that restitutionary claims dependent on a defendant’s legal or equitable wrongdoing will in most cases be characterized in accordance with the operative cause of action. However, actions for money had and received and quantum meruit, which arise independently of contract or wrongs, warrant a unique characterization. For such claims, the traditional lex fori approach to equitable obligations is rejected and a methodology of assimilation by sufficiently close analogy is deemed unmaintainable. Existing choice-of-law rules are therefore unsuitable in the restitutionary context. This paper proposes the proper law is the choice-of-law rule for restitution. In practice, the forum court will examine the circumstances giving rise to the restitutionary obligation, which will reveal the law with the closest and most genuine connection to the claim.