Lex Situs Conference last Friday

Last Friday in London I had the great pleasure to present a bit of my own work at the Lex Situs seminar organized by the Institute of Art and Law and sponsored by Withers LLP. Incidentally there is another seminar tomorrow which looks to be interesting as well, on the consideration of anti-seizure legislation.

It was an enjoyable afternoon, and a lot of fun for me to hear what people like Prof. Norman Palmer, Kevin Chamberlain, and Marc-André Renold had to say on the topic, as I’ve read and relied on their work a great deal in the last few years.

The highlight for me was hearing from Jeremy Scott, of Withers LLP who represented Iran in the recent high court case with Barakat galleries. It may be useful for people to know a bit about what the speakers had to say on this rule. For the non-law readers, apologies if this post is a bit lawyerly, but some of these private legal concepts are a bit involved.

The lex situs rule essentially dictates that when a stolen piece of cultural property crosses national boundaries, and laws conflict, the law of the jurisdiction where the sale took place (i.e. lex situs) will apply. This is a nearly unanimous rule which applies to movable objects. Two speakers gave particularly good insights.

Dr. Janeen Carruthers, a reader at the University of Glasgow gave a very informative overview of the whole scope of the lex situs rule. It was great to hear her thoughts, as an expert on Private International Law. She had some interesting things to say, especially arguing clandestine removal may have many things in common with the clandestine removal of antiquities, and this similarity may be a useful tool for arguing the lex situs rule should not perhaps hold the prominent position it does today.

I also particularly enjoyed hearing Professor Johan Erauw of the University of Ghent in Belgium talk about Talk about a new Belgian amendment to the Code of Private International Law in 2004 which provided for a lex originis choice-of-law rule in certain limited circumstances. It was an interesting amendment of the general rule, but he argued persuasively that the rule was substantially weakened, and the reasons may be tied to certain Belgian museums, who were concerned about losing some or all of their collection with a new more generous rule for source nations.

Given such a distinguished panel, I set the bar pretty low for myself. My main argument, and perhaps its one that’s more common sense than anything, is that the lex situs rule is ill-equipped to regulating and limiting the illicit trade in art an antiquities. I do think a convincing and compelling policy argument can be made that the general lex situs rule governing title to movable objects across national boundaries should be limited in some situations, and in fact this is the approach taken by Belgium.

When public international law offers no remedy, claimants are often forced to seek redress through private law. Of course all nations forbid theft; and every jurisdiction recognizes that a thief cannot possess superior title to the original owner. The classic dispute in cultural property litigation does not involve the original owner and the thief, but rather the original owner and a subsequent purchaser. Both of these parties are relative innocents. The difficulty in private international law disputes hinges on the ways in which different states have chosen to allocate burdens, rights and responsibilities between these two relative innocents.

States could take the Belgian approach and use another choice of law principle. There could be a call to reform good faith purchaser rules in Civilian jurisdictions. We might decide that art and antiquities should be registered when they are bought and sold. These all strike me as plausible and sensible reforms, however we must start from the position that the current default legal framework does not effectively distinguish illicit objects. The problem, and its one that’s been noted by many cultural heritage scholars, is that nations and lawmakers too often respond to the illicit trade rather than create a workable legal regime to prevent problems before they occur. The Belgian example strikes me as an important and noteworthy exception to this rule.

Should there be an antiquities market in some form? If the answer is yes, as it currently stands there is not a workable system to ensure antiquities are licit. To erect such a system will require substantial compromise on the part of source nations and the antiquities market. The market will have to radically shift the way it conducts itself to provide adequate safeguards that antiquities are legally excavated or from older collections. In turn, it seems likely that source nations will have to find a way to provide licit antiquities to meet market demand. Until such a compromise is brokered, courts in market nations will continue to be faced with difficult issues.

It was a really enjoyable seminar, and I’d like to thank the organizers and the Institute of Art and Law for being kind enough to allow a PhD candidate to present alongside such an impressive panel.

Questions or Comments? Email me at derek.fincham@gmail.com

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