Yanru Chen on Applying human rights discourse in cultural objects restitution (International Journal of Cultural Policy)

"Applying human rights discourse in cultural objects restitution"
Yanru Chen (PhD Candidate)
International Journal of Cultural Policy
Published online: August 2025

Abstract: The landscape of cross-border restitution claims is shifting from state-centric approaches towards a greater focus on the rights and concerns of non-state actors, highlighting the critical importance of the human rights dimension in cultural objects that manifest the identity of a specific community. Human rights discourses encompass the right of participation and self-determination, as well as cultural heritage rights framed by cultural heritage instruments. These discourses play a key role in bridging the gaps within the current international legal framework, thereby promoting fair and just solutions to preserve and protect cultural objects. Despite ongoing debates around cultural internationalism versus cultural nationalism, the identification of rightful holders, conflicts of rights, alternative dispute resolution, and human rights courts may serve as effective forums to reinforce the impact of human rights in claims about the restitution of cultural objects. These forums can strengthen the enforcement of human rights principles in restitution claims, fostering solutions that respect the cultural and historical significance of disputed objects.

HKU Law Welcomes Prof. David Winterton

Welcome to Prof. David Winterton, who joins the Faculty of Law as an Associate Professor.

David is an Associate Professor at the University of Hong Kong, with a specialization in contract law, commercial remedies, restitution and private law theory. He has published in several leading academic journals, as well as a monograph based on his doctrinal dissertation, entitled Money Awards in Contract Law (Bloomsbury 2015), which was shortlisted for the St Petersburg International Legal Forum Private Law Prize in 2018. His work has also been cited in various judicial decisions, including in the ultimate appellate courts of Australia and Canada.

Prior to his arrival in Hong Kong, David was a Senior Lecturer at the University of Sydney, and prior to that a Lecturer at UNSW and a stipendiary lecturer at St Anne’s College, Oxford. He holds a BSc (Pure Mathematics) and an LLB from UNSW and a BCL (Dist), MPhil and DPhil from the University of Oxford. Additionally, David has spent some time in legal practice in both Sydney (commercial litigation) and New York (Bankruptcy & Restructuring). He is admitted as a legal practitioner in NSW (2006) and as an Attorney in New York (2012).

Peter Chau and Lusina Ho on Agreement and Restitutionary Liability for Mistaken Payments (OUP book chapter)

"Agreement and Restitutionary Liability for Mistaken Payments"
Peter Chau, Lusina Ho
in Sagi Peari (ed.), Warren Swain (ed.), Rethinking Unjust Enrichment: History, Sociology, Doctrine, and Theory, (Oxford University Press,December 2023),pp. 181-200
Published online: December 2023

Abstract: This chapter considers two recent attempts that claim a defendant’s actual or hypothetical agreement as grounds for restitutionary liability for mistaken payments. With respect to Alexander Georgiou’s attempt based on an actual but tacit agreement, it argues that his account: (1) confuses the motivating causes of the payment with the terms of the payment; (2) rests on a long chain of inference that raises doubt as to the general applicability of his argument to cases of mistaken payment; and (3) offers little guidance on when restitutionary liability should be imposed. With respect to Titiana Cutts’s argument, which is inspired by TM Scanlon’s idea of reasonable agreement, the chapter argues that: (1) the principles considered in her contractualist pairwise comparison are unduly limited and (2) the considerations she takes into account in deciding between principles, such as the security of a party’s plans and the impact on people with limited means, are not specific enough for her conclusion. For example, these considerations cannot explain why reasonable people must choose a principle that gives payors who paid upon a relevant mistake a general right to restitution, but not when they paid upon a misprediction.

Anaïs Mattez on Restitution of Cultural Property: the rise and fall of a cosmopolitan ideal (International Journal of Heritage Studies)

"Restitution of cultural property: the rise and fall of a cosmopolitan ideal"
Anaïs Mattez (PhD candidate)
International Journal of Heritage Studies
Published online: November 2023

Abstract: This paper provides a historical analysis of the peak and demise of the international view on cultural heritage. In the 1980s, cultural internationalism emerged as a conservative reaction against the adoption of the 1970 UNESCO Convention, which organises the restitution and return of stolen cultural properties. Internationalist and cosmopolitan scholars who have claimed that cultural heritage ‘belongs to humanity’, generally condemned restitution, and pushed back against the ratification of the Convention. The international view on cultural property became traditionally dominant in milieus such as universal museums, antiquity markets and some academic disciplines. However, over the past half-decade, the growing importance of research on provenance has challenged cultural internationalism in two areas. Firstly, research on provenance focused on art and archaeological crime has shown that artefacts allegedly excavated in the past are often the proceeds of recent looting, especially in conflict zones. Secondly, recent studies on historical provenance have revealed that many objects were collected using colonial violence. As a result, developments in criminology, postcolonial history, and indigenous peoples’ rights have generally led to the retreat of cosmopolitan narratives on cultural property. Ultimately, this paper highlights that cosmopolitanism in cultural heritage has historically hinged on the imperialist past.

Lusina Ho on Unjust Enrichment and Equity (new book chapter)

"Unjust Enrichment and Equity"

Lusina Ho

in  Elise Bant, Kit Barker, Simone Degeling (eds), Research Handbook on Unjust Enrichment and Restitution (Edward Elgar, July 2020), Chapter 7

Summary: The proper relationship between unjust enrichment and equity has long been the subject of spirited debates. At the theoretical level, there is debate as to whether the idea of conscience is better than unjust enrichment in explaining and categorising instances of restitutionary liability previously available under quasi-contract. At the doctrinal level, it has been argued that the equitable doctrines of knowing receipt and undue influence are better classified as claims to reverse unjust enrichment. Furthermore, where both common law and equitable rules are applicable to a claim in unjust enrichment, there are calls to assimilate the rules to achieve coherence and consistency. The present chapter explores all these issues.

Michael Tilbury Interview on Post-Obligations VII

World leading private law scholars and jurists met at the HKU Law Faculty in mid-July 2014 for the Obligations VII conference.  The event was co-organised by the  law schools of Hong Kong University and Melbourne University.  The co-convenors were Michael Tilbury (HKU) and Andrew Robertson (Melbourne).  In the interview below, Professor Tilbury reflects on what was achieved and briefs us on subsequent developments.  

Profs Robertson and Tilbury (L-R)

1. What were you hoping to achieve when you were planning Obligations VII?  By way of background to my answer, it is important to stress that the biennial Obligations conferences, which originated at the University of Melbourne in 2002, are the leading forums that bring together scholars, judges and practitioners from around the common law world to discuss issues in private law. Each conference is organised around a common theme, and speakers are asked to address this theme in their presentations.

     Against this background, the overall objective of the Obligations VII conference was to bring together leading authorities in the common law world who could address the identified theme of the conference, namely divergence and convergence in the common law of obligations.

     The theme starts from the premise that, although the common law has its origins in English law, its development outside England has been subject to local influences (for example, local statutory regimes, including human rights instruments, or even local values) that have led to divergences in the common law. The conference was aimed at identifying the reasons for, and evaluating the utility (or otherwise) of, such divergences.

     In planning the conference we were keen to see a logical development of the theme of the conference throughout its three full days, and to devise individual sessions that were linked, as far as possible, by common topics.

Prof Burrows

2. Do you think the Hong Kong conference achieved those objectives?  The conference certainly achieved its objectives. Indeed, the conveners of the conference have received many messages commenting on its intellectual depth, and its overall coherence.  Specifically, and relating this to the objectives of the conference that I have already outlined, I note the following.

     First, leading authorities from throughout the common law world (both from the academy and from the judiciary), presented papers at, and generally participated in, the conference. The papers engaged the theme of the conference at sophisticated, often ground-breaking, levels, taking into account our current theoretical understandings of the common law of obligations and the practical and societal contexts of those understandings.

Prof Stevens

     Secondly, the conference theme was progressively developed throughout the conference both in plenary sessions and in the parallel sessions broadly classified into tort, contract, unjust enrichment and equity. For example, the plenary session on the first full day began with Professor Andrew Burrows addressing the general influence on the English law of obligations of leading Commonwealth authorities, and ended, on the final day, with Professor Robert Stevens (addressing the conference by video-link from Oxford) discussing the approach to particular aspects of remedies in two leading English and Australian cases. 

Fok PJ, Ma CJ, Ribeiro PJ (L-R)

3. What were some of the main highlights from the Hong Kong conference?  Undoubtedly, the major highlight was the intellectual engagement of the papers with the conference theme. Of course, beyond this, the answer runs the risk of being subjective, depending on the papers that had special personal appeal. 

     However, I think it is not unfair to single out the contributions of our plenary speakers to our understanding of divergence and convergence in the common law of obligations. I have already mentioned the papers of Professors Burrows and Stevens, both from Oxford. Justice Robert Ribeiro of the Hong Kong Court of Final Appeal spoke at the opening plenary session of the conference. His Lordship gave the conference a distinctly Hong Kong ‘feel’ by speaking about a decision of the Hong Kong Court of Final Appeal on defamation on the internet, comparing the decision to those in other common law jurisdictions. 

Dean Hor and Prof Worthington

      Sir Anthony Mason, also of the Hong Kong Court of Final Appeal and formerly Chief Justice of Australia, spoke about the influence of statute law on common law development. Professor Sarah Worthington from Cambridge addressed the issue of the extent to which party autonomy is essential to common law doctrine. Dame Sian Elias, the Chief Justice of New Zealand, spoke about public acts and private obligations. Unfortunately Professor Paul Finn, formerly of the Federal Court of Australia, was unable to attend the conference. 

Prof Smith, Sir Anthony Mason, Elias CJ

However, his written paper, which traced the emergence of diversities from English law particularly in Canada, Australia and New Zealand, formed the subject of a spirited plenary panel session, in which Professor Stephen Smith commented from a Canadian perspective; Sir Anthony Mason from an Australian perspective; Dame Sian Elias from a New Zealand perspective; Professor Anselmo Reyes from a Hong Kong perspective; and Professor Andrew Burrows from an English perspective.

Group photo before dinner cruise

     The other highlight of the conference that must be mentioned was its outstanding organisation, attributable to the quiet determination of the organising team at HKU, led by Priscilla Wong. The organising team ensured that everything ran to clockwork, including the widely enjoyed cruise dinner on Victoria Harbour and the conference dinner at the Bankers’ Club.

4. Will the papers from the conference be published?     Yes, Hart Publishing will publish two volumes of essays from the Conference in 2015. The first will be entitled The Common Law of Obligations: Divergence and Unity and the second Divergences in Common Law. The volumes will be stand-alone works, the first focusing on general topics relating to the conference theme, the second on particular divergences in contract, tort, unjust enrichment and equity. Update: The two books were published in January 2016.  Click here for more information.

5. What can you tell us about Obligations VIII?     Obligations VIII will be held at the University of Cambridge from 19-22 July 2016. The theme of the conference will be ‘Revolutions in Private Law’.  More photos from Obligations VII can be found here.