Unjust enrichment and public law: a comparative study of England, France and the EU

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Hart, Jun 30, 2010 - Law - 294 pages
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The central aim of this book is to examine claims involving unjust enrichment and public bodies (bodies subject to judicial review) in France, England and the EC. A central aim of the work is to explore the law as it now stands in the UK following cases such as Woolwich EBS v IRC (where the public body is the defendant) and cases involving swaps transactions (where it can be either claimant or defendant). The author argues that so far these cases have been viewed from either a public or private law perspective, whereas in fact both branches of the law are relevant, and that the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment. From an English perspective, the debate concerning the merits of civilian enrichment without cause, as opposed to common law unjust enrichment, has arisen in the context of public body claims. The French experience, by comparison, demonstrates that the two sides of the issue, public and private, remain important regardless of the chosen approach to unjust enrichment; recognising these two aspects, rather than simply adopting the civilian approach, therefore enhances our understanding of these claims. No understanding of cases concerning public law 'illegality' can be complete without an examination of cases where that illegality is provided, not by domestic public law, but by the law of the EC. Thus a further aspect of the book is that it investigates the division of labour between the European courts and the domestic courts in such cases, and defines the extent to which the two relevant issues, public law and unjust enrichment, are defined in EC law, and to what extent this task is left to the domestic courts.

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Contents

Abbreviations and Glossary for French Sources
xxvii
Table of Legislation
xlix
Table of Conventions
lv
lDefinitions and Controversies
3
2Woolwich and the Creation of the Public Law Reason
20
TWO NEW OPTIONS FOR RECOVERY
27
3The Scope of the Public Law Reason for Restitution
40
4A Hierarchy of Reasons for Restitution
70
HOW WIDE ARE THE EFFECTS OF THE PUBLIC LAW REASON
110
5Defences
123
CONCLUSIONS AND FURTHER IMPLICATIONS
162
Part 3
205
8Unjust Enrichment in National and European Law and
232
Two important factors against Model 2
247
IS THERE AN EU LAW EVENT OF ULTRA VIRES IN CASES
269
Index
285

FURTHER ARGUM ENTS AGAINST THE HIERARCHY
97
Copyright

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About the author (2010)

Rebecca Williams is Fellow and Tutor in Law at Pembroke College, and the Faculty of Law, Oxford University.