Unraveling Unjust Enrichment Across Borders: Georgia's Place in the Global Legal Tapestry

In the intricate world of private international law, where the laws of different nations intersect, the principle of unjust enrichment presents a particularly fascinating puzzle. When one party is enriched at another's expense without legal justification across borders, which country's law should apply to rectify the situation? Georgia’s "Law on Private International Law" (SCS) tackles this head-on in its 41st article, providing a sophisticated framework that, while uniquely Georgian, bears the distinct fingerprints of European legal thought.

The drafters of Georgia’s SCS embarked on a comparative legal journey, drawing inspiration from Swiss, German, and Italian law, as well as various international conventions. While for some sections of the law the lineage is clear—for instance, the rules on contractual obligations were closely modeled on the 1980 Rome Convention—the direct legislative ancestry of Article 41 on unjust enrichment is more opaque. However, a close analysis reveals a striking resemblance to the modern German approach, particularly Article 38 of the Introductory Act to the Civil Code (EGBGB). This similarity is likely no accident; it points to a deep engagement with German legal doctrine, which has shaped a rule that is both structured and pragmatic.

The Georgian and German rules share a logical, three-tiered structure for determining the applicable law. The primary and most significant principle is that of accessory connection. Article 41(1) of the SCS dictates that if a claim for unjust enrichment is connected to a pre-existing legal relationship between the parties—such as a contract or a tort—the claim is governed by the same law that governs that underlying relationship. This approach is eminently sensible, as it ensures that the entire dispute is viewed through a single legal lens, respecting the context the parties established and avoiding the legal fragmentation known as dépeçage. This principle is a cornerstone of modern European private international law, also found centrally in Article 10 of the European Union's Rome II Regulation, which governs non-contractual obligations.

Where no such pre-existing relationship exists, the Georgian law provides two further connecting factors. Article 41(2) addresses claims arising from the infringement of a protected right, applying the law of the country where the infringement occurred. This rule neatly handles cases where one party profits from unlawfully using another's property or intellectual property rights. For all other scenarios, Article 41(3) establishes a default rule: the applicable law is that of the country where the enrichment occurred. This catch-all provision ensures that a clear legal path exists even in the most disparate of cases, from mistaken bank transfers to other complex multi-jurisdictional transactions.

This structured approach stands in contrast to the more flexible methodology seen in the United States. The American Restatement (Second) of Conflict of Laws, in its Section 221, eschews a rigid hierarchy of rules in favor of a "most significant relationship" test. American courts are guided to weigh a variety of connecting factors—the location where the benefit was received, the place of the conduct causing enrichment, the domicile of the parties, and the center of their relationship—to determine which jurisdiction has the paramount interest in having its law applied. While the Georgian-German model prioritizes predictability and structure, the American system champions judicial discretion and a case-specific analysis.

A critical nuance in the Georgian framework, as in its European counterparts, is the careful distinction between unjust enrichment claims and the consequences of a void contract. Under the SCS, the restitutionary claims that arise from a contract deemed null and void are not governed by Article 41, but rather by the conflict-of-law rules for contracts found in Articles 35 and 36. This separation ensures that issues intimately tied to the formation and validity of an agreement are resolved according to the law that would have governed the contract itself, a principle upheld in both the old Rome Convention and the current Rome I Regulation.

In conclusion, Article 41 of Georgia’s Law on Private International Law stands as a thoughtful and well-crafted piece of legislation. It firmly roots Georgia within the mainstream of modern European legal thinking, adopting a structured and principled approach heavily influenced by German doctrine. By prioritizing the law of an underlying relationship before resorting to territorial connections, it provides a clear and predictable framework for resolving complex cross-border disputes involving unjust enrichment, demonstrating a sophisticated approach to a timeless legal problem.