I have posted on SSRN a working version of my forthcoming paper titled How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property, to be published some time next Spring in the Columbia Journal of Law and the Arts. Here is the abstract:
The International trade and transfer of art and antiquities faces problems because nations have erected very different rules with respect to movable property. All nations forbid theft, however most cultural property disputes involve an original owner and a subsequent good faith possessor. Different jurisdictions have chosen to allocate rights and responsibilities between these two relative innocents in very different ways. Disharmony in the law is seldom a good thing, but in the realm of cultural property it can be particularly damaging to the interests of nations, museums, individuals, and our collective cultural heritage. The lack of harmony ensures no overarching policy choices will be furthered, which prevents parties from anticipating legal outcomes and giving substance to policies.
This article explores the default conflict of law rules which are applied to cultural property, and shows how the lex situs rule exploits the various legal rules which apply to art and antiquities. It challenges the lofty position enjoyed by the lex situs rule and proposes a radical reform of the default choice of law analysis. By employing the law of the Nation of Origin or lex originis courts can ensure the jurisdiction with the most tangible connection to an object enjoys the benefit of applying its legal rules to a given dispute. This will not only ensure the security of art and antiquities transactions, but impart much-needed transparency into the cultural property trade, and finally will decrease the theft and illegal excavation of art and antiquities.
The article begins by presenting some examples of recent disputes, and the problems they present for the law and cultural heritage policy. Section II describes the fundamental difficulty of adjudicating claims between two relative innocents, and the disharmony which has resulted as different jurisdictions have resolved this conundrum in very different ways. Section III lays out the ways in which private international law impacts art and antiquities disputes. Section IV analyzes the 1995 UNIDROIT Convention, the most recent attempt to harmonize the law affecting cultural property. Section V proposes a radical reform of the choice of law enquiry taken by courts.
I’d be delighted to hear any reactions to the work at derek.fincham “at” gmail.com.