The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: The Role of International Arbitration

International Journal of Cultural Property

Volumn 5, Issue 1, 1996, Pages 19-72

  Sidorsky, Emily ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 85012556313     PISSN: 09407391     EISSN: 14657317     Source Type: Journal    
DOI: 10.1017/S0940739196000215     Document Type: Article

References (324)

1. See Jeanette Greenfield, The Return of Cultural Treasures 282-286 (1989), for an account of this incident.
2. Malraux was to become the celebrated French novelist and the author of such critical studies as Museum Without Walls (Stuart Gilbert & Francis Price trans., 1967)
3. The Twilight of the Absolute (Stuart Gilbert trans., 1950). Considered to be a leading art theoretician, Malraux was appointed by the French government as the French Minister of Cultural Affairs in the 1960's.
4. Charles de Visscher, International Protection of Works of Art and Historic Monuments, 3590 U.S. Dep't St. Pub. 823, 824 (1949) (quoting Quartième de Quincy, Lettres au général Miranda sur le préjudice qu'occasionairaient aux arts et a la science le déplacement des monuments de l'art de l'Italie, le démembrement de ses collections et la spoliation de ses collections, galeries, musees, etc. (1796))
5. quoted in Gael M. Graham, Protection and Reversion of Cultural Property: Issues of Definition and Justification, 21 (3) Int'l Law. 755,758(1987).
6. See Paul M. Bator, An Essay on the International Trade in Art, 34 Stan. L. Rev. 275, 309 (1982), for the view that, despite the central importance of preservation, national patrimony should not be defined so as to encourage a nation to retain all of its art.
7. See John Henry Merryman, Two Ways of Thinking about Cultural Property, 80 Am. J. Int'l L. 831, 846 (1986) [hereinafter Merryman, Cultural Property], for a discussion of the distinction between “cultural internationalism” and “cultural nationalism” and the comment that cultural nationalism appears to be the attitude preferred by the majority of countries today.
8. See also John Henry Merryman, Text and Subtext in the International Art Trade, in 3 International Art Trade and Law 457, 462 (Martine Briat & Judith A. Freedberg eds., 1991). Merryman is opposed to the cultural nationalist point of view, describing it as “romantic nationalism.” He writes: “The romantic nationalist subtext has outlived its utility and today serves the cause of blind retentionism … Together, preservation, truth and access offer an alternative and preferable basis for policy…”.
9. For instance, the ongoing debate over whether cultural treasures that have been removed in the past, sometimes centuries earlier, should be returned, will not be discussed. For a discussion of this topic see e.g. Greenfield, International Art Trade and Law, at 10–46, for a detailed discussion of the return by Denmark to Iceland in 1971 of two extremely valuable medieval manuscripts, the Flateyjarbok (the Book of Flat-Island) and the Codex Regius (the King's Volume), which Denmark had removed from its former colony 250 years earlier. The most celebrated example of the ongoing debate as to whether objects removed centuries earlier should be returned involves the “Elgin Marbles.” Lord Elgin, while serving as the British Ambassador to Constantinople, removed them from Greece while it was part of the Ottoman Empire in the early nineteenth century. After much discussion, the British Parliament passed an Act in 1816 “To Vest the Elgin Collection of Ancient Marbles and Sculptures in the Trustees of the British Museum,” where they remain on display to this day. The notoriety of this example has led to the coining of the French word “Elginisme,” to describe generally the taking of a cultural object.
10. A full account can be found in Greenfield, International Art Trade and Law, at 47–105.
11. Lord Byron, “Childe Harold's Pilgrimage,” Canto the Second, XII, XIII (1812)
12. cited in Bator, Canto the Second, at 277 n.2.
13. Marcus Tullius Cicero, The Verrine Orations, (In C. Verrem Actio II), Book IV (Harvard University Press, trans., L.H.G. Greenwood 1935)
14. cited in Lyndel V. Prott & Patrick J. O'Keefe, 3 Law and the Cultural Heritage: Movement 803 (1989).
15. See also Titus Livius, From The Founding of the City (Ab Urbe Condita), Book XXI (Harvard University Press, trans., B. O. Foster 1929), describing Hannibal's seizure of many valuable cultural objects in the war he waged with the Carthaginians against Rome
16. cited in Graham, From The Founding of the City, at 756 n. 1.
17. See, UNIDROIT, Diplomatic Conference for the Adoption of the Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects: Text of the Draft Convention with Explanatory Report, UNIDROIT 1994, Conf. 8/3, (Dec. 20, 1994) (Original: French) (hereinafter “UNIDROIT Explanatory Report 1994”), at 8.
18. UNIDROIT, Committee of Governmental Experts on the International Protection of Cultural Property, App. IV, UNIDROIT 1994, Study LXX - Doc. 48 (Original: French) [hereinafter “draft UNIDROIT Convention”] for the identical text of the draft UNIDROIT Convention.
19. The name UNIDROIT stands for the International Institute for the Unification of Private Law, an organization based in Rome, Italy. UNIDROIT was founded in 1926, at the instigation of the League of Nations, to serve as an independent body devoted to improving the harmonization of international laws. It is frequently contended that there is a close link between traffic in cultural property and organized crime, see e.g. Judith Church, Evolving United States Case Law on Cultural Property Disputes, 2 Int'l J. Cultural Prop. 47, 62 n.1 (1993))
20. citing, James Walsh, It's a Steal: The Worlds Cultural Heritage is Being Looted by Thieves Who Often Have Ties to Organized Crime and Even get Help From the Art World, TIME, Nov. 25, 1991, at 86.
21. Although this may be true, see e.g. Michael Janofsky, Fake Bank Set Up by U.S. Agents Snares Drug-Money Launderers, N.Y. Times, Dec. 17
22. See Jeannette Greenfield, The Return of Cultural Property, in 60 Antiquity, Mar. 1986, 29–35 for a list of examples of voluntary restitution by different nations.
23. See Prott & O'Keefe, Antiquity 8, at 624–25, 616–20, respectively.
24. The decisions in Attorney General of New Zealand v. Ortiz, [1982] 1 Q.B. 349
25. rev d. [1982] 3 W.L.R. 571 (C.A.)
26. [1983] 2 W.L.R. 809 (H.L.)
27. Winkworth v. Christie, Manson & Woods, Ltd., [1980] 1 Ch. 496, serve to illustrate the unfortunate outcome that can result from the resolution of disputes under die current framework.
28. The Italian Civil Code, Art. 1153, provides that so long as the purchase is made “in good faith at the moment of consignment,” ownership is properly transferred.
29. See Final Act of the Diplomatic Conference for the Adoption of the Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects, Appendix: UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (hereinafter “UNIDROIT Convention”), June 24, 1995.
30. The full text of the UNIDROIT Convention is reprinted in 51 The Art Newspaper, Sept. 1995, at 28, and this Journal infra at 155.
31. These deliberations were recorded in the Summary Records of the Conference. UNIDROIT 1995, Conf. 8/S.R. 1–5 (June 10–24, 1995) (Original: English/French)
32. the Summary Records of the Committee of the Whole, UNIDROIT 1995, Conf. 8/C.1/S.R. 1–19 (June 13–23, 1995) (Original: English/French)
33. The responses given by local experts of various nationalities to a questionnaire addressing an early version of the draft UNIDROIT Convention, the preliminary draft Convention on Stolen or Illegally Exported Cultural Objects [hereinafter “the preliminary draft Convention”], provide a basis for these contentions. Their commentary offers valuable insights into the potential role arbitration could play in the settling of cultural property disputes. See Martine Briat & Judith A. Freedberg, Editors' Foreword to 4 International Art Trade and Law, at v (Martine Briat & Judith A. Freedberg eds., 1993) [hereinafter Briat & Freedberg]. The questionnaire was developed in 1991 by the Institute of International Business Law and Practice and by members of its Council. The National Reports, along with the General Reports, were written by local experts in response to the questionnaire asking them to express their opinion on the strengths and weaknesses of the preliminary draft Convention.
34. These were presented at the Fourth International Symposium on International Sales of Works of Art, entitled “The Legal Aspects of International Trade in Art,” in Madrid, Feb. 12–14, 1992.
35. For the text of the preliminary draft Convention, see, UNIDROIT 1990, Study LXX - Doc. 19
36. reprinted in Lyndel V. Prott, The Preliminary Draft Convention on Stolen or Illegally Exported Cultural Objects, 41 I.C.L.Q. 160, 168–70(1992).
37. The 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 17 U.S.T. 1270 (1966)
38. 575 U.N.T.S. 159, reprinted in Doc. ICSID/15,ICSID Basic Documents 11 (Jan. 1985).
39. Arbitration between States, State Enterprises, or State Entities, and Foreign Enterprises, reprinted in 5 ICSID Rev. - For. Inv. L. J. 139 (1990)
40. 16 Y.B. Comm. Arb. 236(1991).
41. See 19 Y.B. Comm. Arb. 338 (1994) for The Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between two Parties of which only one is a State, July 6, 1993.
42. They are also available from the Permanent Court of Arbitration, Peace Palace, Carnegieplein 2, 2517 KJ The Hague, The Netherlands.
43. Id. at 313 for The Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between two States, Oct. 20, 1992
44. reprinted in 32 I.L.M. 572(1993).
45. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 215.
46. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231
47. reprinted in 10 I.L.M. 289 (1971).
48. Council Directive 93/7/EEC on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State, 1993 O.J. (L 74) 74
49. Council Regulation 3911/92/EEC on the Export of Cultural Goods, 1992 O.J. (L 395) 1.
50. Both are reprinted in 3 Etudes en Droit de l'Art/La Libre Circulation des Collections d'Objets d'Art (Studies in Art Law/ The Free Circulation of Art Collections) (Quentin Byrne-Sutton & Marc-André Renold eds., 1993) 217 [hereinafter Byrne-Sutton & Renold].
51. See O.J. The Preamble to the 1954 Hague Convention states, that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.”
52. There was considerable discussion at the Diplomatic Conference, particularly by representatives from Croatia, Kuwait and the United States, as to whether the UNIDROIT Convention should address the issue of cultural objects acquired in periods of armed conflict. Ultimately, the decision was made not to introduce a separate provision on this subject in the Convention so late in the drafting process. However, it is still possible that such objects might be covered by the UNIDROIT Convention as drafted. See UNIDROIT 1995, Conf. 8/C.1/S.R. 1, at 11–12
53. Conf. 8/C.1/S.R. 12, at 8–9, O.J.
54. See generally Graham, O.J., for a thorough discussion of the treatment of cultural property before the creation of UNESCO in 1947 and thereafter.
55. See Prott & O'Keefe, O.J., at 726–801 for further discussion of the UNESCO Convention.
56. See the UNESCO Convention, O.J., Art. 7, para, (b), cl. (i).
57. Id. Art. 6.
58. See the Treaty on European Union, Feb. 7, 1992 O.J. (C 224) 1
59. [1992] 1 C.M.L.R. 719
60. reprinted in 31 I.L.M. 247 (1992) [hereinafter Maastricht Treaty]. The twelve Member States to sign the Treaty were Belgium, Denmark, France, the Federal Republic of Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom.
61. See generally Byrne-Sutton &. Renold, I.L.M.
62. See also Victoria J. Vitrano, Comments: Protecting Cultural Objects in an Internal Border-Free EC: The EC Directive and Regulation for the Protection and Return of Cultural Objects, 17 Fordham Int'l. L.J. 1164 (1994)
63. see also François Rigaux, The Protection of Cultural Heritage: Aspects of EEC Law, 109 Mededeungen van de Nederlandse Vereniging Voor Internationaal Recht 69–97 (Nov. 1994).
64. See Treaty Establishing the European Economic Community, [hereinafter EEC Treaty] Mar. 25, 1957
65. 298 U.N.T.S. 3 (1958)
66. as amended by Single European Act, 1987 O.J. (L 169) 1.
67. The provisions regarding the free movement of goods are found in Arts. 30–34 of the EEC Treaty.
68. See EEC Treaty, Art. 36.
69. See Council Regulation 3911/92/EEC
70. O.J., Annex, “Categories of Cultural Objects covered by Article 1,” 1992 O.J. (L 395) 4 for the definition of cultural object
71. see Council Directive 93/7/EEC, O.J., Art. 1, para. (1)
72. 1993 O.J. (L74) 75 for the definition of cultural object, and Annex, “Categories referred to in the second indent of Article 1(1) to which objects classified as ‘national treasures’ within the meaning of Article 36 of the Treaty must belong to in order to qualify for return under the Directive,”
73. 1993 O.J. (L74) 78.
74. See Council Regulation 3911/92/EEC, O.J., Art. 2, para. (1)
75. 1992 O.J. (L 395) 1. It states, that “[t]he export of cultural goods outside of the customs territory of the Community shall be subject to the presentation of an export license.”
76. Id. Art. 2, para. (2)
77. 1992 O.J. (L395) 1–2. It states “[t]he export license shall be issued at the request of the person concerned: - by a competent authority of the Member State in whose territory the cultural object in question … is located.”
78. Each Member State is responsible for establishing authorities competent to issue an export license. Id. Art. 3, para. (1)
79. 1992 O.J. (L395) 2.
80. It states “Member States shall furnish the Commission with a list of the authorities empowered to issue export licenses for cultural goods.” The Council Regulation has no retroactive application. Thus, cultural objects which were not “lawfully and definitively located” in a Member State prior to January 1, 1993 are not required to be accompanied by an export license. Id. Art. 2, para. (2), subpara. 1, first indent, 1992 O.J. (L395) 1.
81. Id. Art. 2, para. (2), subpara. 4, 1992 O.J. (L395) 2.
82. Id. Art. 2, para. (3), 1992 O.J. (L395) 2. It states “[t]he export license shall be valid throughout the Community.”
83. Id. Art. 2, para. (2), subpara. 2, 1992 O.J. (L395) 2. However, if the object has previously been dispatched from a Member State and it is subsequently reimported from a country outside the Member States, the authorities of the country that reimports the goods are required to investigate the lawfulness of the prior dispatch from the Member State.
84. See Council Directive, 93/7/EEC O.J., Arts. 2, 4–6
85. 1993 O.J. (L74) 75–76. Art. 4 indicates the procedure to be followed in a restitution proceeding. First, the national authorities of the requested Member State, upon the application of the requesting Member State, must try to find the specified object. (Art. 4, para. (1)). Second, it is incumbent upon the Member State to notify another Member State if it finds what it believes to be an unlawfully removed object within its territory (Art. 4, para. (2)). Third, it must enable the competent authorities of the requesting Member State to conduct an inquiry (Art. 4, para. (3)) and it must protect the object in the interim (Art. 4, paras. (4) and (5)). Lastly, the competent authorities of the requested Member State may, upon the approval of the requesting Member State and the possessor or holder, submit the dispute to an arbitration proceeding (Art. 4, para. (6)). The Directive further provides that if the dispute is resolved in a court proceeding as opposed to an arbitral forum, the requesting Member State shall initiate proceedings in the court of the requested Member State (Art. 5) and shall notify other Member States of the proceeding (Art. 6).
86. Id. Art. 7, para. (1), 1993 O.J. (L74) 76. It provides, mat the “return proceedings … may not be brought more than one year after the requesting Member State became aware of the location of the cultural object and of the identity of its possessor or holder.” Furthermore, it states that “[s]uch proceedings may, at all events, not be brought more than 30 years after the object was unlawfully removed …” Id. This time limit is extended to 75 years in the case of objects forming part of public collections and in the case of certain ecclesiastical goods. Id.
87. Id. Art. 9, 1993 O.J. (L74) 76. It provides that the competent court of the requested Member State shall award the possessor fair compensation if it is satisfied that the possessor exercised “due care and attention in acquiring the object.” Although the Directive provides that compensation is to be paid by the requesting Member State, the burden of proof to determine whether the requisite due care was exercised shall be governed by the legislation of the requested Member State.
88. See Rigaux, O.J., at 70.
89. Prior to the Maastricht Treaty, this area was regulated by The European Convention on offenses relating to Cultural Property, June 23, 1985, European Treaty Series No. 119, Council of Europe, Strasbourg, 1985.
90. Id. at 79.
91. The scope of the Council Directive does not coincide exactly with the coverage of the Council Regulation - some objects falling within the parameters of one and not the other. See O.J. 31, for the relevant provisions governing the definition of “cultural object.” The Council Directive's definition of “cultural object” differs from that of the Council Regulation (the “Annex”). Article 1, para. (1) of the Council Directive states
92. See Byrne-Sutton & Renold, O.J., at 13–14.
93. See also Rigaux, O.J., at 83–85. To illustrate the difficulty of characterizing a “treasure” as a “national” one, Rigaux offers as examples “a Chinese jar, epoch Yuan, deemed a national treasure by the French, and a Velasquez picture presented by the King of Spain to the Duke of Wellington, deemed a national treasure by the United Kingdom.” Rigaux also raises the issue of the difficulty surrounding efforts to determine an artist's nationality. He queries: “Has one to separate in Van Gogh's career a Dutch from a French period or in Picasso's, a Catalonian from a French one?” Although not specifically addressing the export authorities' discretion or lack thereof, Rigaux notes the complexities involved in making such determinations
94. citing Jeanneret v. Vichy, 693 F.2d 259 (2d Cir. 1982) (Matisse painting illegally exported from Italy was deemed to be not an Italian “national” treasure and furthermore, was not even a “treasure”). Id.
95. See Byrne-Sutton & Renold, F.2d, at 12.
96. Also of relevance on a regional level is the Scheme for the Protection of Cultural Heritage within the Commonwealth, Commonwealth Secretariat, London, adopted in Mauritius, Nov. 1993. It provides for the protection of cultural property within the countries of the Commonwealth against exports in contravention of their national laws. See UNIDROIT Explanatory Report 1994, F.2d, at 10.
97. See UNIDROIT Convention, F.2d, Ch. IV, Art. 9, para. (1) and discussion thereof, infra (previous Ch. V, Art 10 of the draft UNIDROIT Convention). Art. 9 states
98. See also UNIDROIT Convention, F.2d, Ch. V, Art. 13. It states
99. See Pierre A. Lalive, Comment, in Byrne-Sutton & Renold, F.2d, at 128. Lalive questions specifically the need for the Council Directive in light of the draft UNIDROIT Convention.
100. See UNIDROIT Explanatory Report 1994, F.2d, at 10. It states: While fully aware of the purely regional scope of these instruments, the committee of governmental experts sought to draw on those initiatives as the solutions adopted in them represented a compromise between different interests which, on a narrower scale, were the same as those of the States participating in the work of UNIDROIT.
101. Draft Convention providing a Uniform Law on the acquisition of Corporeal Movables, (LUAB 1974) UNIDROIT 1975, Study XLV - Doc. 48.
102. UNIDROIT Explanatory Report 1994, UNIDROIT, at 6
103. citing the Report on the 65th session of the Governing Council of UNIDROIT, UNIDROIT 1986, C.D. 65 - Doc. 18, at 24.
104. An art market nation, as opposed to a source nation, is one in which the demand for art exceeds the supply. See Merryman, Cultural Property, C.D., at 832. The major art market nations include the countries that actively encourage the movement of cultural goods through their countries by offering expertise in evaluating and selling such goods. The art market nations include: Australia, Canada, France, Germany, Japan, Switzerland, the United Kingdom and the United States.
105. An alternative avenue for the recovery of stolen property is available in the United States through the National Stolen Property Act, 18 U.S.C. §§ 2311 - 18 (1978) (hereinafter NSPA).
106. The NSPA was used to recover pre-Columbian artifacts stolen and transported through interstate commerce in the United States in United States v. McLain, 545 F.2d 988 (5th Cir. 1977)
107. in United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974).
108. See Ortiz, [1984] A.C.1 at 20 d-e
109. cited in Thomas W. Percoraro, Choice of Law in Litigation to Recover National Cultural Property: Efforts at Harmonization in Private International Law, 31 Va. J. Int'l L. 1, 11 n.45 (1990), for the proposition that courts will more readily enforce contract or tort claims brought by private parties than they will those brought by state parties. The court in Ortiz states: This suit by a foreign state to enforce its laws is to be distinguished altogether from a suit between private firms or individuals which raises a question as to whether a contract has been broken by one or the other or whether a wrong has been done by one to the other. In such a suit our courts will recognize the existence of the laws of a foreign state.
110. See UNIDROIT Explanatory Report 1994, Va. J. Int'l L., at 6
111. See also Lyndel V. Prott, Chief, UNESCO International Standards Section, Explanatory Note, UNIDROIT Draft Convention of Stolen and Illegally Exported Cultural Objects, Oct. 18, 1993. She offers three principal motivations for UNESCO's request of UNIDROIT
112. See Gerte Reichelt, International Protection of Cultural Property, UNIDROIT 1986, Study LXX - Doc. 1
113. reprinted in. Uniform Law Review 43 (1985).
114. Gerte Reichelt, Second Study Requested from UNIDROIT by UNESCO on the International Protection of Cultural Property with Particular Reference to Private Law Affecting the Transfer of Title to Cultural Property in the Light also of the Comments Received on the First Study, UNIDROIT 1988, Study LXX - Doc. 4.
115. See UNIDROIT 1988, Study LXX - Doc. 3. This contains the initial preliminary draft Convention, as submitted by the Austrian member of the UNIDROIT Governing Council, Mr. Roland Loewe.
116. See UNIDROIT 1989, Study LXX - Doc. 10
117. UNIDROIT 1989, Study LXX - Doc. 14
118. UNIDROIT 1990, Study LXX - Doc. 18, for a report on these three meetings.
119. See Study LXX.
120. See Study LXX.
121. See UNIDROIT Convention, Study LXX, Ch. I, Art. 1.
122. Draft UNIDROIT Convention, Study LXX, Ch. I, Art. 1, para. (a).
123. See UNIDROIT 1995, Conf. 8/C.1/S.R. 1, Study LXX, at 7.
124. UNIDROIT Convention, Study LXX, Ch. I, Art. 1, para. (b).
125. UNIDROIT Convention, Study LXX, Ch. II, Art. 3, para. (1).
126. See UNIDROIT 1995, Conf. 8/C.1/S.R.2, Study LXX, at 6–10.
127. Id. at 7–8.
128. See UNIDROIT 1995, Conf. 8/C.1/S.R. 16, Study LXX, at 4.
129. See UNIDROIT 1995, Conf. 8/C.1/S.R. 2, Study LXX, at 10–14.
130. See also UNIDROIT Explanatory Report 1994, Study LXX, at 17–18.
131. Earlier suggestions of one year and 30 years, respectively, were rejected. The shorter one-year time period in instances where the claimant has the requisite knowledge was rejected despite arguments that it would reduce the likelihood of stale claims being brought and lead to greater legal certainty. See UNIDROIT 1995, Conf. 8/C.1/S.R. 2, Study LXX, at 10–14.
132. See also UNIDROIT Explanatory Report 1994 Study LXX, at 18.
133. One of the arguments in favor of having a longer period in excess of 30 years is that in many of the recently litigated cases, the period that elapsed between the object's disappearance and the claimant's filing of his or her claim has exceeded 30 years. See, e.g., Stiftskirche-Domgemeinde of Quedlinburg v. Meador, No. CA3–90–1440-D (N.D. Texas, filed June 18, 1990) (45 years)
134. DeWeerth v. Baldinger, 836 F.2d 103 (2d Cir. 1987)
135. cert, denied, 486 U.S. 1056 (1988)
136. 38 F.3d 1266 (2d Cir. 1994) (38 years)
137. United States v. Herce, 334 F.Supp. 111 (S.D.N.Y. 1971) (35 years).
138. Another change from the draft UNIDROIT Convention is the deletion of the term calling for the commencement of the statute of limitations period from the time the possessor “ought reasonably to have known the location of the object and the identity of its possessor.” Draft UNIDROIT Convention, F.Supp., Art. 3, para. (3). Various representatives expressed reservations about the inclusion of this phrase at the Diplomatic Conference. They argued that it was too broad in scope and created the difficulty of defining “reasonable knowledge.”
139. See UNIDROIT Conf. 8/C.1/S.R. 2, F.Supp., at 10. The decision to delete this phrase in the final text of the UNIDROIT Convention potentially makes this provision more favorable to the claimant as the clock does not begin to run until the claimant “knew,” rather then when it “ought to have known.”
140. UNIDROIT Convention, F.Supp., Ch. II, Art. 3, para. 4.
141. Id. See also UNIDROIT 1995, Conf. 8/C.1/S.R. 3, F.Supp., at 2–8. Some representatives voiced a concern that by providing that there were to be no time limitations for asserting claims concerning cultural objects in “public collections,” the UNIDROIT Convention went beyond the situation currently existing in many countries' national legal systems. Therefore, there might be a reluctance on the part of such countries to ratify the Convention.
142. The draft UNIDROIT Convention stated that “an object belonging to a public collection of a Contracting State [shall not be subject to prescription] [shall be brought within a time limit of [75] years].” Draft UNIDROIT Convention, F.Supp., Art. 3, para. 4. The brackets reflected the indecision surrounding portions of this provision.
143. See also UNIDROIT Explanatory Report 1994, F.Supp., at 18–19.
144. UNIDROIT Convention, F.Supp., Ch. II, Art, 3, paras. 5 and 6.
145. See, UNIDROIT 1995, Conf. 8/C.1/S.R. 3, F.Supp., at 7.
146. Id. at 5.
147. See UNIDROIT 1995, Conf. 8/C.1/S.R. 3. F.Supp., at 8.
148. UNIDROIT Convention, F.Supp., Ch. II, Art. 3, para. 7. It provides: a ‘public collection’ consists of a group of inventoried or otherwise identified cultural objects owned by
149. See draft UNIDROIT Convention, F.Supp., Ch. II, art. 3, para. (4), for the earlier definition of “public collection.”
150. UNIDROIT Convention, F.Supp., Ch. II, Art. 4, para. (1). It states
151. Id. Ch. V, Art. 9, para. (1). This clause provides that the Convention does not “prevent a Contracting State from applying any rules more favourable to the restitution or the return of stolen or illegally exported objects than provided for by th[e] Convention.” Thus, there is no obligation on the part of a country that has a common law system, which traditionally does not require the payment of compensation to a purchaser of a stolen object, even a bona fide one, to modify its existing system.
152. See UNIDROIT Explanatory Report 1994, F.Supp., at 20.
153. See UNIDROIT 1995, Conf. 8/C.1/S.R. 5, F.Supp., at 2. Some representatives at the Diplomatic Conference questioned the wisdom of providing for this shift in the burden of proof in Art. 4, para. (1) with respect to stolen cultural objects.
154. UNIDROIT Convention, F.Supp., Ch. II, Art. 4, para. (4).
155. See UNIDROIT 1995, Conf. 8/C.1/S.R. 5, F.Supp., at 2–3. Some representatives at the Diplomatic Conference were in favor of amending the text of Art. 4(1) to make it clear that the compensation to be paid should be either the value of the object or the price actually paid, whichever was the lower. Others disagreed with this idea, arguing that it deprived art dealers involved in legitimate transactions the value of their bargains. Other representatives suggested that the full market value should be the only standard used. Still others disagreed with the entire principle of compensation, on the ground that this requirement would make it more difficult for members of third world countires to reclaim their cultural objects.
156. UNIDROIT Convention, F.Supp., Ch. III, Art. 5, paras. (1) and (2). It provides
157. Art. 5, para. (1) of the draft UNIDROIT Convention had listed three separate categories ((a) through (c)) of situations in which the return of illegally exported cultural objects would be appropriate. The decision of whether or not clause (c), relating to the excavation of cultural objects, should be retained, or whether or not it properly belonged in Chapter III of the Convention, generated a considerable amount of discussion at the Diplomatic Conference. See, UNIDROIT 1995, Conf. 8/C.1/S.R. 5, F.Supp., at 7–12. Ultimately, a majority of the representatives voted in favor of retaining the substance of draft UNIDROIT Convention, Art. 5(1)(c).
158. See UNIDROIT 1995, Conf. 8/C.1/S.R. 17, F.Supp., at 8.
159. But see UNIDROIT Explanatory Report 1994, F.Supp., at 23
160. citing Switzerland's Private International Law Statute, Dec. 18, 1987, Art. 19, [reprinted in 29 I.L.M. 1244 (1990)], as an example of the increasing trend in both the statutes and case law of some countries “to be more generous in taking into consideration the mandatory rules of law of another State.”
161. UNIDROIT Convention, I.L.M., Ch. III, Art. 5, para. (3). It states
162. The inclusion of these criteria was also a response to the fact that the legislation in many states does not reflect a concern with the question of the illicit traffic of exported cultural objects to the same degree as it does with respect to stolen objects. See UNIDROIT 1995, Conf. 8/C.1/S.R. 5, I.L.M., at 13.
163. See UNIDROIT Explanatory Report 1994, I.L.M., at 25.
164. Id. at 25–26.
165. See also UNIDROIT Convention, I.L.M., Ch. V, Art. 9, para. (1) of the UNIDROIT Convention. It allows a state to apply any rules in its national legislation more favorable to the return of illegally exported cultural objects than provided for by the Convention.
166. The draft UNIDROIT Convention had referred to objects of “outstanding cultural importance” as opposed to the present language of objects of “significant cultural importance.” Draft UNIDROIT Convention, I.L.M 9, Art. 5, para. (2). The exact terminology to be used in this provision was the source of considerable discussion among the representatives at the Diplomatic Conference. Some representatives indicated that it would be crucial to their countries' decision whether or not to ratify the Convention that such adjectives be retained as they serve to limit the scope of the Convention
167. See UNIDROIT 1995, Conf. 8/C.1/S.R. 6, I.L.M., at 5.
168. The draft UNIDROIT Convention, like the present Convention, did not specify the factors to be considered by an adjudicator in determining whether or not an object was “outstanding.” The suggestion was made, however, that “the outstanding cultural importance of the object for the requesting State should be measured against the extent and wealth of its heritage, be it in public or private hands, and the rarity of the object.” UNIDROIT Explanatory Report 1994, I.L.M., at 26.
169. UNIDROIT Convention, I.L.M., Ch. III, Art. 5, para. (4).
170. Id. Ch. III, Art. 5, para. (5).
171. Draft UNIDROIT Convention, I.L.M., Art. 6, para. (1).
172. See UNIDROIT 1995, Conf. 8/C.1/S.R. 7, I.L.M., at 9–12.
173. See UNIDROIT Explanatory Report 1994, I.L.M., at 27.
174. UNIDROIT Convention, I.L.M., Ch. III, Art. 6, para. (1).
175. UNIDROIT Explanatory Report 1994, I.L.M., at 30 notes that this difference is due to the fact that a large number of delegations thought that “the stigma attaching to theft ought not to be transposed to illegally exported cultural objects.”
176. UNIDROIT Convention, I.L.M., Ch. III, Art. 6, para. (2).
177. Id. Ch. III, Art. 6, para. (3).
178. Id. Ch. III, Art. 6, para. (4).
179. Id. Ch. III, Art. 7, para. (1),cl.(a).
180. Id. Ch. III, Art. 7, para. (1).cl.(b).
181. Id. Ch. III, Art. 7, para. (2).
182. Id. Ch. IV, Art. 8, para. (1). The preliminary draft Convention, I.L.M., Art. 9, para. (1), [current Art. 8, para. (1)], provided an additional alternative forum for a claim to be brought where the possessor of the cultural object had his habitual residence. This alternative was deleted in the draft UNIDROIT Convention text.
183. See UNIDROIT 1994, Study LXX - Doc. 48
184. Study LXX, at 53.
185. Georges A.L. Droz, Mémoire sur le Projet de Convention d Unidroit sur le Retour International des Biens Culturels Volés ou Illicitement Exportés, 109 Mededelingen van de Nederlandse Verendiging voor Internationaal Recht 47, 56 (Nov. 1994).
186. 1262 U.N.T.S. 153 (hereinafter the “Brussels Convention”)
187. the EEC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988
188. 1988 O.J. (L 319) 9 (hereinafter the “Lugano Convention”) as examples of Conventions which do not consider the location of the movable property to warrant the grant of jurisdiction, but instead apply general principles regarding the conflict of laws.
189. See UNIDROIT 1995, Conf. 8/C.1/S.R. 9, O.J., at 3. It was considered inappropriate to introduce a conflict of law rule on the law applicable in light of the substantive nature of the UNIDROIT Convention.
190. See also UNIDROIT Explanatory Report 1994, O.J., at 31. Some representatives noted that provisions governing enforcement and recognition of judgments are rarely found in private law instruments with a global reach and therefore felt the inclusion of such provisions might render the draft UNIDROIT Convention unacceptable to many countries unaccustomed to such provisions.
191. See UNIDROIT 1995, Conf. 8/C.1/S.R. 9, O.J., at 3.
192. UNIDROIT Convention, O.J., Ch. IV, Art. 8, para. 2.
193. See UNIDROIT Explanatory Report 1994, O.J., at 53 noting the “quasi-unanimity in favor of arbitration.”
194. See also Droz, O.J., at 56. He notes that this provision complies with the spirit of the Brussels and Lugano Conventions.
195. UNIDROIT Convention, O.J., Ch. IV, Art. 8, para. (3). This provision is based on Art. 24 of the Brussels Convention.
196. See UNIDROIT Explanatory Report 1994, O.J., at 32.
197. UNIDROIT Convention, O.J., Ch. IV, Art. 9, para. (2). It states: This article [referring to Art. 9, para. (1)] shall not be interpreted as creating an obligation to recognise or enforce a decision of a court or other competent authority of another Contracting State that departs from the provisions of this Convention.
198. UNIDROIT Convention, O.J., Ch. IV, Art. 9, para. (1).
199. See UNIDROIT 1995, Conf. 8/C.1/S.R. 12, O.J., at 2–7.
200. Preliminary draft Convention, O.J., Ch. V, Art. 10. It states: This Convention shall apply only when a cultural object has been stolen, or removed from the territory of a Contracting State contrary to its export legislation, after the entry into force of the Convention…
201. Vienna Convention on the Law of Treaties, May 23, 1969
202. 1155 U.N.T.S. 331, Art. 100.
203. See UNIDROIT Explanatory Report 1994. U.N.T.S., at 33. Some representatives indicated that it would be impossible for their countries to accept the draft UNIDROIT Convention if it were to have retroactive application out of fear that this would expose the museum collections in their countries to challenge.
204. UNIDROIT Convention, U.N.T.S., Art. 10. It states
205. Id. Ch. IV, Art. 10, para. (3). It states
206. Id. Ch. V, Art. 11, Art. 12, and Art. 21.
207. Id. Ch. V, Art. 13.
208. Id, Ch. V, Art. 14.
209. Id. Ch. V, Art. 18.
210. Id. Ch. V, Art. 19. All of the provisions in Chapter V are adoptions of the text of the draft Final Provisions (with the exceptions of draft Final Provisions Arts. C and F) of the draft UNIDROIT Convention. They were renumbered at the Diplomatic Conference and now form part of the text of the UNIDROIT Convention.
211. See Droz, U.N.T.S., at 47 (Fr.) and at 58 (Engl. summ.).
212. See Harold S. Burman, Executive Director, Office of the Legal Adviser, United States Department of State, Memorandum, Dec. 5, 1991, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
213. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16. Burman discusses the differences between public and private law conventions.
214. See Droz, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property; Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16. at 48–49 (Fr.) and at 58 (Engl. summ.).
215. See also UNIDROIT Explanatory Report 1994, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
216. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 15. In discussing the draft UNIDROIT Convention, some representatives were in favor of adopting two separate definitions of the term because of the different regard in which these two offenses are held. It was decided that this would introduce an unnecessary level of complication. Another suggestion was to establish a minimum value on the cultural objects to which the Convention would apply and establish differing minimum levels depending on the category of the object. A further proposal was to leave the decision of whether the cultural object fell within the scope of the Convention to the national law of each Contracting State. This idea was rejected on the ground that it would undermine the UNIDROIT Convention's objective to be as uniform as possible.
217. See UNIDROIT 1995, Conf. 8/C.1/S.R. 9, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property; Report of the first meeting of government delegations
218. Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 7. One of the representatives at the Diplomatic Conference observed that the UNIDROIT
219. See UN1DROIT Explanatory Report 1994, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
220. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 20, indicating that the representatives preferred to leave the determination of “fair and reasonable compensation” to the discretion of the judge hearing the claim, indicating that it has been standard in public international law for judges to make such determinations of commercial value. This interpretation was subject to criticism, however, at the Diplomatic Conference.
221. See UNIDROIT 1995, Conf. 8/C.1/S.R. 4, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
222. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 3,4.
223. See UNIDROIT 1995, Conf. 8/C.1/S.R. 3, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
224. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 3. A representative at the Diplomatic Conference criticized the definition of “public collection” as being “far too broad.” Another remarked that “the definition of public collection as it appeared in the draft was too vague to justify special protection for cultural objects belonging to this category under the future Convention, as it contained terms that were far too ambiguous.”
225. See UNIDROIT 1995, Conf. 8/C.1/S.R. 2, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
226. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 4, for the suggestion that the word “possessor” should be replaced with the word “holder.” Another representative recommended replacing the term “possessor” with the term “owner,” while others favored a more precise definition of the term.
227. See also UNIDROIT Explanatory Report 1994, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
228. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 16–17.
229. But see UNIDROIT 1995 Conf. 8/C.1/S.R. 4, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
230. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 5. A representative at the Diplomatic Conference made the following comment: a self-contained definition of the idea of possessor in this draft Convention should be abandoned … [as] one of the fundamental ideas in the elaboration of this draft Convention was to minimise as much as possible self-contained definitions because of the diversity of the legal systems of the States participating in this conference.
231. See, UNIDROIT Explanatory Report 1994, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
232. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 15. It reports that a number of delegations requested definitions of these terms, “fears being expressed … that there would in their absence be a risk of each Contracting State applying its national definition of such terms which would run counter to the aim of uniformity.”
233. But see UNIDROIT 1995, Conf. 8/C.1/S.R. 2, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
234. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 5. One representative at the Diplomatic Conference commented that, “the study group quickly realised that it was impossible for its members to agree on an overall set of uniform regulations, in conformity with legal systems of all the States, and also on such terminology as ‘thief,’ ‘possessor/ ‘owner,’ ’quality,’ [and] ‘recourse.’… it was an illusion to believe that reaching an agreement was possible with regard to defining the notions of ‘possessor’ or ‘theft∗ or ’claimant.’”
235. See UNIDROIT Explanatory Report 1994, Issues raised by the draft UNIDROIT Convention on International Protection of Cultural Property
236. Report of the first meeting of government delegations; Preparation of U.S. positions for the second UNIDROIT meeting January 20. 1992. at 16, at 26. The text of the UNIDROIT Convention substituted the word “significant” in place of the previous term “outstanding.” The comment expressed in the UNIDROIT Explanatory Report 1994 with respect to the term “outstanding cultural importance” could seemingly apply equally to the term “significant cultural importance.” It states: [s]o as to ensure consistency in drafting with other provisions of the draft and so as to leave to the judge a certain degree of discretion, the text lays down no criteria to determine the importance of the object.
237. See Alexandra Peers, Gates Purchase Tops a Tepid Art Year, Wall St. J., Jan. 3, 1995, at R35, forecasting that “[repatriation promises to be the hot issue of the decade in the art world …” Other recent events, such as the discovery of a “major trove” of Impressionist paintings held in the Hermitage Museum since the end of World War II, have generated a great deal of controversy
238. See John Russell, Hermitage Reveals It Hid Trove of Impressionist Art, N.Y. Times, Oct. 4, 1994, at A1
239. Alexandra Peers, Art World is Unnerved by Cries for Return of War Booty, Wall St. J., Feb. 16, 1995, at C1
240. Steven Erlanger, Russia Reveals More Art Taken from Nazis, N.Y. Times, Feb. 28, 1995, at A1 (Pushkin Museum of Fine Art trove)
241. Rod MacLeish, The Art and the Glory: The Lost Masterpieces of the Hermitage, Vanity Fair, Mar. 1995, at 125.
242. See also 51 The Art Newspaper, Vanity Fair, at 26–29 for a collection of articles on the UNIDROIT Convention. Some of the articles are in favor of the ratification of the Convention, others are against.
243. Council Directive 93/7/EEC, Vanity Fair
244. 1993 O.J. (L74) 75–76 Art. 4, para. 6. It provides: Member States' central authorities shall cooperate and promote consultation between the Member States' competent national authorities. The latter shall in particular
245. The UNIDROIT Convention, O.J., Art. 8, para. (2) provides Contracting States the option of using arbitration. It states that, “[t]he parties may also agree to submit the dispute to … arbitration.” Thus, the potential for arbitration is not limited to the UNIDROIT Convention but is relevant to other regulatory frameworks as well.
246. See UNIDROIT Explanatory Report 1994, O.J., at 32.
247. See UNIDROIT 1994, Study LXX-Doc. 48
248. Study LXX, at 53.
249. See Lyndel V. Prott, Principles for the settlement of contemporary claims to cultural property displaced during World War II, Symposium, The Spoils of War, New York, Jan. 19–21, 1995, sponsored by the Bard Graduate Center for Studies in the Decorative Arts.
250. See also Laura Leivick, Return Art Stolen During Wars, Now, Wall St. J. Feb. 16. 1995, at A12.
251. See also Stephen K. Urice, Claims to ownership of the “treasures,” id. He stated that the German government had indicated its willingness to submit the dispute surrounding the fate of the ‘Treasure of Priam,” a renowned collection of archeological artifacts originally excavated by Hein-rich Schliemann from the second city of Troy, which was subsequently removed from Germany by Russia during World War II, to an international court of arbitration or before the International Court of Justice.
252. See UNIDROIT 1995, Conf. 8/C.1/S.R. 9, Claims to ownership of the “treasures,”, at 3–4.
253. Id. at 4. One representative suggested the International Court of Justice as a potential forum for the settlement of disputes involving state parties under Chapter III.
254. Id. at 4.
255. Id. at 4.
256. See Reinhard Muβgnug, Germany National Report on Topic 1.
257. See also Quentin Byrne-Sutton & Marc-André Renold, Switzerland National Report, id. at 103 for the following comment: It is preferable that a sole specialized authority makes the decisions on the demands for restitution. This would perhaps be an ideal terrain for international arbitration which permits the parties to choose arbitrators who are specialized and ‘detached’ from the national judicial order. One can well imagine the creation of a specialized arbitration procedure as is the case, for example, in the field of maritime law. (trans, by author).
258. See Muβgnug, Switzerland National Report, at 68. He raises the contention that this system places too much of the burden on the requesting State. He argues for reversing the burden of proof so that there is a presumption that the good would be returned absent a showing by the requested State that it had a superior interest in the object in dispute. Even with this modification, however, he believes that arbitration offers the only suitable means to achieve an absolutely fair balance between the interests of the requesting State and the requested State.
259. The reason that the courts of the state where the object was located is likely to be selected by the claimant is that it means that a “successful claim for the restitution or return of a stolen or illegally exported objects would be directly enforceable without the need to have recourse to the courts of a second State” for enforcement. This is regarded as a significant innovation in the area of cultural property. See UNIDROIT Explanatory Report 1994, Switzerland National Report, at 32.
260. See Muβgnug, Switzerland National Report, at 69. He raises the following contention: [According to Art. 9, [current Art. 8] claims addressed against a German possessor are to be pursued before the German courts. But the German government will have to take into consideration that the vague uncertainty of Arts. 5(2) [current Art. 5(3)] and 6 [deleted in the current text] of the Draft does not appear too encouraging in regard to the situation of Germany as a requesting State which has to pursue its return claims before foreign courts or even before the authorities of a foreign State. Therefore, if asked, I would warn against the ratification unless the Convention provides for an impartial arbitration …
261. Id. at 68 for the argument that although the restitution claim in the case of stolen goods (Ch. II) could be handled by the national courts, (“Legal objections might be put aside with the consideration that the Convention does not aim at a return of am illegally exported object, but only those of ‘outstanding cultural importance’. On the whole, objects illegally exported in Germany, therefore, will only have to be returned to the State of their origin if in Germany they would be subject to an export prohibition as well.”), in the case of illegally exported objects (Ch. Ill), he notes that there is a “concern that the national courts and authorities might overvalue their own nation's interests. Therefore, Chapter III needs an international court of arbitration.”
262. id. at 68. He believes that the qualification that the object be of “outstanding cultural significance” [draft UNIDROIT Convention, Art. 5(2)] should be moved forward to Ch. 1, Art. 2, where it would apply in the stolen good context as well, so that it “corrects the excessively broad definition of the term ‘cultural object.’”
263. See Prott & O'Keefe, Switzerland National Report, at 196. Both the United States and the United Kingdom have arbitration systems for making this determination as to valuation. This is particularly relevant in the context of valuing items where the good is loaned as part of a travelling exhibition.
264. In the United States, the Arts and Artifacts Indemnity Act of 1975
265. 20 U.S.C.S. §§ 971 et seq. (1975), provides for an arbitration proceeding which is conducted by two appraisers and an umpire. Each parry appoints its own appraiser, and the appraisers in turn appoint die umpire. If the appraisers can not agree on the value to be awarded, the umpire makes a final and binding determination.
266. See Indemnity Under the Arts and Artifacts Indemnity Act, 41 Fed. Reg. 29,386 (1976). The Federal Council on the Arts and the Humanities issues a Certificate for Indemnity that provides for arbitration if agreed to by all the parties. The Arts and Artifacts Indemnity Act stipulates that the cost of each appraiser is to be paid by the party who hires him or her and that all other costs of the proceeding should be shared equally by the parties.
267. Two recent high profile cases are Republic of Lebanon v. Sotheby's, No. 3790/90 (N.Y. Sup. Ct. Nov. 4, 1993)
268. Republic of Turkey v. The Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y. 1990). Republic of Lebanon involved the claim of ownership by the Marquess of Northampton (a U.K. citizen) to a collection of 14 pieces of late Roman silver, known as the Sevso Treasure, which he purchased on advice of Sotheby's from a Lebanese dealer and a Yugoslavian-born coin merchant. Lebanon, Yugoslavia (now Croatia) and Hungary filed suit claiming ownership of the objects. Lebanon subsequently withdrew from die case and the New York State Supreme Court recently ruled that neither Croatia or Hungary had proved to the court's satisfaction its claim to ownership. Thus, despite doubts as to its provenance, Northampton's claim to the Treasure and his right to sell it were upheld.
269. See David D'Arcy, Lord Northampton Wins by Default - For the Moment, 4 The Art Newspaper, Dec. 1993, at 4. He points out that the value of die Sevso Treasure has declined because of the uncertainty surrounding its provenance and the threat of ongoing litigation facing a potential buyer of the Treasure.
270. See also Republic of Croatia v. Trustee of the Marquess of Northampton 1987 Settlement, No. 50810–50816 (N.Y. App. Div., April 21, 1994)
271. reported in N.Y.L.J., April 25, 1994, at 26. In Republic of Turkey, Turkey sought to recover artifacts in the possession of the Metropolitan Museum of Art. Turkey asserted that the artifacts were excavated from burial mounds in the Ushak region of Turkey in 1966 and exported to the United States in contravention of Turkish law. Turkey claimed that under Turkish law it owns all artifacts found in Turkey. Subsequently, The Metropolitan Museum returned the artifacts to Turkey.
272. See Alexandre A. Montagu, Recent Cases on the Recovery of Stolen Art - The Tug of War Between Owners and Good Faith Purchasers Continues, 18:1–2 Colum.-VLA J.L. & Arts 75, 86–87 (1994).
273. See Muβgnug, Colum.-VLA J.L. & Arts, at 68. The reasons he offers for the establishment of an international court of arbitration in this context are speed and the reduced cost of the proceedings as compared with litigation.
274. See also Prott and O'Keefe, Colum.-VLA J.L. & Arts, at 196. They offer the following comment on the use of arbitration where a state party is involved: Arbitration is used as a dispute settlement mechanism in many … matters involving States and, although it has defects, in general it works very well. It is important that provision be made for some method of settling disputes and arbitration is particularly suitable for those with international elements.
275. Arbitration Center, World Intellectual Property Organization, Geneva, Switzerland.
276. The ICSID Convention was formulated in 1965 by the Executive Directors of the World Bank in Washington, D.C.
277. 20 Y.B. Comm. Arb. 1077 (1995).
278. Also worth noting are the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of ICSID, Sept. 1978 (hereinafter “the Additional Facility Rules”)
279. See John T. Schmidt, Arbitration Under the Auspices of the International Centre for Settlement of Investment Disputes (ICSID): Implications of the Decision on Jurisdiction in Alcoa Minerals of Jamaica, Inc. v. Government of Jamaica, 17 Harv. Int'l. L.J. 90, 104 (1976)
280. as cited in Stephen J. Toope, Mixed International Arbitration 221 n. 10 (1990) for the idea that a neutral forum will increase the likelihood of the investor achieving “easy access to the decisional forum, [and the] opportunity to air the merits of a claim” by divorcing the forum from the control of the host state. This will in turn increase investor activity.
281. See Toope, Mixed International Arbitration, at 200.
282. For a thorough analysis of the Santiago de Compostela Resolution, See generally Arthur T. von Mehren, Arbitration Between States and Foreign Enterprises: The Significance of the Institute of International Law's Santiago de Compostela Resolution, 5 ICSID Rev.-For. Inv. L. J. at 54.
283. See also Arthur T. von Mehren, Institute of International Law - Resolution on Arbitration between States. State Enterprises or State Entities and Foreign Enterprises, Explanatory Note, (hereinafter “Von Mehren Explanatory Note”) 16 Y.B. Comm. Arb. 233 (1991).
284. Santiago de Compostela Resolution, Article 4.
285. Id.
286. See Stephen M. Schwebel, International Arbitration: Three Salient Problems 122–25 (1987) for a discussion of the inadmissibility of a plea of sovereign immunity as a bar to the jurisdiction of arbitrators in international arbitral tribunals
287. See also, Georges Delaume, State Contracts and Transnational Arbitration 75 AM. J. Int'l L. 784, 786 (1981)
288. as cited in Schwebel, id. at 125 n.140.
289. Schwebel also refers to the discussion by Dr. J. Gillis Wetter of Solel Boneh International Ltd. (Israel) and Water Resources Development International (Israel) v. the Republic of Uganda and National Housing and Construction Corporation of Uganda (ICC) (1974) in support of this proposition.
290. to J. Gillis Wetter, Pleas of Sovereign Immunity and Act of Sovereignty before International Arbitral Tribunals 2 J. Int'l. Arb. 7, 9–10 (1985)
291. See also Toope, J. Int'l. Arb., at 139–40. He states that “the submission of a state to arbitration is treated as an implicit waiver of jurisdictional immunity.”
292. Problems of recognition and enforcement of the arbitral award remain in certain legal systems. Id. at 144–45. But see The United States Foreign Sovereign Immunities Act (1976)
293. 28 U.S.C. § 1610(1) (Supp. 1982)
294. 28 U.S.C. § 1605(a)(6) (amended 1988) (hereinafter “FSIA”), for the principle, adopted by other countries as well, that a state may not assert a claim of sovereign immunity to frustrate an arbitration agreement which it has entered into with a private party. It provides that there is no immunity available to a state in any action: to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement… (emphasis added).
295. See also Switzerland International Private Law Statute, U.S.C., Ch. 12.
296. See Von Mehren Explanatory Note, U.S.C., at 235–36. He notes that of special importance in this regard is the principle that arbitrators are “not free to invoke l'ordre public or lois imperatives in disregard of the arbitration agreement.” This had relevance in the draft UNIDROIT Convention context as some delegations to the Convention perceived the possibility of a country invoking I'ordre public as die rationale for the inclusion of Article 6(1).
297. See UNIDROIT Explanatory Report 1994, U.S.C., at 27. However, Article 6(1) was deleted from the final text of the Convention.
298. Santiago de Compostela Resolution, Art. 2.
299. See Toope, U.S.C., at 146–150.
300. He cites the leading American case in support of this proposition, Ipitrade International S.A. v. Federal Republic of Nigeria, 465 F.Supp. 824 (D.D.C. 1978) (State's agreement to arbitrate under ICC Rules constitutes a waiver of sovereign immunity under United States legislation). Although there are cases which have held to the contrary, the predominant position of cases in Australia, France, Holland, Sweden and Switzerland is to recognize an implicit waiver of sovereign immunity as extending to the enforcement and execution of the arbitral award. cThe Australian Foreign States Immunities Act 1985
301. reprinted in 25 I.L.M. 715 (1986), § 17(2), makes this waiver of immunity explicit. It provides that where the state has submitted to arbitration, “the foreign State is not immune in a proceeding concerning the recognition as binding for any purpose, or for the enforcement, of an award made pursuant to the arbitration, wherever the award was made.” Furthermore, the Act (§ 30) authorizes the Australian courts to order enforcement of the award.
302. See also D. W. Bowett, Contemporary Developments in Legal Techniques in the Settlement of Disputes, Hague Recueil 169, 220 (1983)
303. as cited in, Toope, Hague Recueil, at 148 n.206.
304. See also Schwebel Hague Recueil, at 124.
305. He cites Georges R. Delaume, State Contracts and Transnational Arbitration, 75 Am. J. Int'l L. 784, 786–87 (1981) in support of this same proposition.
306. See Toope, Am. J. Int'l L., at 204 n. 15. Toope contends that states have a tendency to distrust institutional frameworks, preferring ad hoe arbitration instead.
307. He cites Benteler v. Belgian State (Nov. 18, 1983)
308. reprinted in I J.Int'l. Arb. 184 (1984)
309. Hellas International Co. for Garments S.A. v. The Greek State (Jan. 18, 1982)
310. reprinted in 10 Y.B. Comm. Arb. 34 (1985), in support of this proposition.
311. But see The Additional Facility Rules of the ICSID Convention, Y.B. Comm. Arb., which expand the situations in which resort to the ICSID regime might be available to interested parties. The Additional Facility Rules authorize the 1CSID Center to administer proceedings which fall outside the scope of the ICSID Convention in the following situations
312. See Toope Y.B. Comm. Arb., at 202–203. Toope makes the point that a difficulty with institutional arbitration is that its codified procedures contribute to the inflexibility of the dispute resolution process. This tends to alienate non-western countries from resorting to arbitration. He writes: The increasing formalism of arbitral procedure that seems to follow the creation of institutions may in fact hamper the resolution of disputes where developing state are involved because the emphasis upon rigorous procedural rules may not allow for sufficient sensitivity to political concerns and cultural discontinuities.
313. But see 4 ICC Int'l Ct. Arb. Bulletin 1, at 4 (May 1993). Statistics compiled by the ICC indicate that in the ten year period from 1983–92, parties from 93 different countries participated in ICC arbitrations. Parties from Western Europe accounted for 57% of this pool but the remainder was composed of parties from the Asia-Pacific region and from Central and Eastern Europe.
314. See Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration at 39 (1986), for the premise that, “[t]he time limits laid down by institutional rules usually fail to take account of the time which a state or state entity needs to obtain approval of important decisions, through its own official channels.”
315. See Future Disputes clause, Law and Practice of International Commercial Arbitration. It provides: This agreement to arbitrate constitutes a waiver of any right to sovereign immunity to which a party might otherwise be entitled with respect to the enforcement of any award rendered by an arbitral tribunal constituted pursuant to this agreement.
316. See Law and Practice of International Commercial Arbitration.
317. See The Report of the Executive Directors of the World Bank, Comment on Art. 55, Doc. ICSID/2, para. 43
318. as cited in Aron Broches, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of 1965, Explanatory Notes and Survev of its Application. 18 Y.B. Comm. Arb. 627, 704 (1993).
319. It states: The doctrine of sovereign immunity may prevent the forced execution in a State of judgments obtained against foreign States or against the state in which execution is sought. Article 54 requires Contracting States to equate an award rendered pursuant to the Convention with a final judgment of its own courts. It does not require them to go beyond that and to undertake forced execution of awards rendered pursuant to the Convention in cases in which final judgments could not be executed. Broches cites LETCO v. Liberia, 650 F.Supp. 73 (1986) as an example of an instance where the jurisdiction of the U.S. court over the foreign State was upheld but the execution of the ICSID award was not enforced.
320. The assets were deemed by the court to be sovereign and not commercial assets and therefore not covered by the Foreign Sovereign Immunities Act exception from immunity of execution of assets used for commercial activities. Id. at 704–705.
321. See also Toope F.Supp., at 246–49 for a discussion of this subject.
322. Cour d'appel (Fr), reprinted in 20 I.L.M. 878 (1981), as an example of a situation where a sovereign immunity defense was upheld against execution of the award.
323. See Toope, I.L.M., at 190–96, and at 237–238 for a discussion of the issue of interim measures of protection in the context of the ICSID system as well as in that of other arbitral systems.
324. See Toope, I.L.M., at 192–95. Although there is a body of U.S. case law which holds that if a dispute is to go to arbitration, the courts are precluded from granting any provisional measures, including ordering attachment of the goods, the tendency in both the U.S. and in Europe is to allow courts to pre-arbitration attachments.