Cultural Property in Cross-Border Litigation: Turning Rights into Claims

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文化财产的跨境诉讼问题 德古伊特2015年版
	Contents
	List of Abbreviations
	Chapter 1. Introduction
		§ 1. The Illicit Trade in Cultural Objects – A Scope of the Problem
			I. General Remarks
			II. Cross-Border Recovery of Misappropriated Cultural Property
				1. The Principle of Justiciability
				2. Misappropriated Cultural Objects in Litigation
					a. Attorney General of New Zealand v. Ortiz
					b. Government of Iran v. Barakat Galleries Ltd
		§ 2. Objectives of the Book and Research Task
		§ 3. Terminology and Delimitation
			I. Movable Cultural Property
			II. Antiquities
			III. Archaeological and Historical Context
			IV. Source Nations and Market Nations
		§ 4. The Structure of the Book
	Part I: Rights to Cultural Objects
		Chapter 2. Sovereign Rights to Movable Cultural Objects
			§ 1. Introduction
			§ 2. Mechanisms of Acquiring Rights to Cultural Objects
				I. Property Rights on the Ground of Ownership Declarations
					1. Umbrella Statutes
					2. Conditional Ownership Declarations
					3. Mixed Law of Finders and State Ownership Approach
						a. The UK Treasure Act 1996 – A Market Nation’s Protection Scheme
						b. Germany: The “Schatzregal”
					4. Dual Regime between Finders Law and Cultural Property Law
					5. Reporting Duties and Rewards
					6. The Quality of the Proprietary Title
						a. The Elmali Hoard-Case
						b. Turkish Republic v The City of Basel
						c. Government of Peru v Johnson
						d. United States v McClain
				II. Property Rights on the Grounds of an Immediate Right of Possession
				III. Property Rights on the Ground of Export Legislation
					1. The Ambit of Export Legislation
						a. No Export Controls
						b. Export Embargos
						c. Classified National Heritage
					2. Confiscatory Laws
						a. Confiscatory Ownership ex lege
							(1) Automatic Forfeiture
							(2) Moment of Forfeiture
						b. Confiscatory Ownership based upon an Administrative Act
					3. Export Laws Granting a Right of First Refusal
						a. Compulsory Purchase Offer
							(1) The Waverley System
							(2) The Dutch System
						b. Optional Purchase Offer
					4. Export Laws not granting Property Rights
					5. Export Restriction and EU Law
				IV. Property Interests on the Ground of Pre-Emption Rights
					1. Pre-Emption Rights as a Mechanism to Acquire Fortuitous Finds
					2. Pre-Emption Rights as Means of Acquiring Property from Private Collectors
						a. Option to Purchase
						b. Right of First Refusal
						c. Right of First Negotiation
					3. The Proprietary Nature of Options and Pre-Emption Rights
					4. Pre-Emption Rights and the ECHR
					5. Pre-Emption or Expropriation
			§ 3. Mechanisms to Retain Ownership of Cultural Objects in the Public Domain
				I. Objects Res Extra Commercium
				II. Movable Cultural Objects dedicated for Public Use
					1. The “öffentliche Dienstbarkeit”
					2. The “dominio eminente”
				III. Restrictions on Disposal
					1. De-accession Provisions
						a. Arising from Trust
						b. Arising from Museum Governing Statutes
					2. Exceptions to the Rule
						a. Through Act of Parliament
						b. Through Voluntary Surrender of Title
			§ 4. Conclusion for Chapter 2
		Chapter 3. Title to Cultural Objects under the Private Law of Finds
			§ 1. Introduction
			§ 2. The Common Law of Finders
				I. Superincumbent Finds
					1. Priority of Possession
					2. The Manifest Intention-Test
				II. Subsoil Finds
				III. The Trespassing Finder
				IV. The Employee versus his Master
				V. Finder Obligations
				VI. Concluding Remarks to the Common Law of Finders
			§ 3. The Civilian Law of Finders
				I. The Acquisition of Title in General
				II. Master versus Servant
				III. Finder versus Occupier
				IV. Fortuitously Discovered Treasure
					1. The Allocation of Title based on Equitable Division
					2. The Conflict between Civil and Public law
					3. Treasure Acquired through Trespass
				V. Concluding Remarks to the Civilian Law of Finds
			§ 4. Excursion: Finders Law as a Means of Protecting Antiquities
				I. The Need for an Incentive to Return Archaeological Finds into Circulation
				II. The Protection of Archaeological Data through the Portable Antiquities Scheme
			§ 5. Conclusion to Chapter 3
	Part II: Turning Rights into Claims
		Chapter 4. International Law with Regard to the Recovery of Cultural Objects
			§ 1. Introduction
			§ 2. European Union Initiatives
				I. Council Regulation (EC) No 116/2009
				II. Council Directive 93/7/EEC
				III. Iraq Council Regulation (EC) No 1210/2003
				IV. Syria Council Regulation (EU) No 1332/2013
			§ 3. Uniform Law International Instruments
				I. Treaty of Washington 1935
				II. The Hague Convention 1954
					1. First Protocol of the 1954 Hague Convention
					2. Second Protocol of the 1954 Hague Convention
				IV. The 1970 UNESCO Convention
					1. The Principles of the Convention
					2. Implementing the Convention into National Law
						a. Bilateral Approach
							(1) United States of America
							(2) Switzerland
						b. Multilateral Approach
							(1) Germany
							(2) Netherlands
						c. UK Implementation
				V. The 1995 UNIDROIT Convention
					1. Principles of the Convention
					2. Weaknesses Preventing Implementation
				VI. Commonwealth Scheme for the Protection of the Material Cultural Heritage 1993
				VII. The 2011 UNESCO and UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects
			§ 4. Conclusion
		Chapter 5. Choice of Law Methodology in International Cultural Property Cases
			§ 1. Introduction
			§ 2. Acquisition of Title to Stolen Property
				I. Jurisdictions favouring the Original Owner
				II. Jurisdictions favouring the Good Faith Acquirer
				III. Moderate Jurisdictions
			§ 3. The Application of the Lex Situs and its Consequences
			§ 4. Legal Alternatives for Disputes involving Cultural Property
				I. The Law of the Closest Connection
				II. Renvoi
				III. Lex Situs Originis
					1. The Resolution of the “Institute de Droit International”
					2. Art. 12 of the EC Directive 93/7 EEC
					3. Belgian Code on PIL of 16 July 2004
				IV. The Proposed Choice of Law Rule
					1. Characterisation of the Object
					2. Protection of the Good Faith Purchaser
					3. The Good Faith – Test
					4. Reversed Burden of Proof
					5. ARule on Discovery
					6. The Nationality of the Object
						a. The Closest Connecting Factor
						b. Problematic Constellations
							(1) Orphaned Objects
							(2) State Succession
							(3) Subjective Cultural Importance
						c. Sharing Agreements as an Alternative Method
			§ 5. Conclusion to Chapter 5
		Chapter 6. Cross-Border Enforcement and Justiciability in a Comparative Perspective
			§ 1. Introduction
			§ 2. International Resolutions on the Justiciability of Foreign Public Law
				I. The Wiesbaden Resolution 1975
				II. Resolution of the “Institute de Droit International”
				III. Resolution adopted by the International Law Association in 1988
			§ 3. England and Wales
				I. Enforcement: Prerogative Claims to Cultural Objects
					1. Acta Jure Gestionis and Acta Jure Imperii
						a. Attorney General of New Zealand v Ortiz
						b. Iran v Barakat: First Instance Decision
					2. ‘Penal laws’ within the Context of Dicey Rule 3 (1)
					3. ‘Other Public Laws’ within the Context of Dicey Rule 3 (1)
						a. Unjusiticiable Public Laws – A Conundrum
						b. The Adoption of the ‘Governmental Interest’ – Test
				II. Recognition: Patrimonial Claims to Cultural Objects
					1. The Recognition of Claims according to the Doctrine of Vested Rights
						a. Iran v Barakat – Court of Appeal Decision
						b. The Medici-Archives
						c. City of Gotha v Sotheby’s
					2. Recognition based on a Possessory Title
						a. The Common Law Action in Conversion
						b. Immediate Right of Possession as Title under English Law
					3. Recognition based on Confiscatory Legislation
						a. Possession at the Time of the Confiscatory Act
						b. Lack of Possession at the Time of Confiscatory Act
				III. Cross-Border Enforcement on the Ground of Public Policy
					1. The Notion of Public Policy
					2. Public Policy and its Function as a Correction Tool
						a) Positive Public Policy
						b) Negative Public Policy
						c) Transnational Public Policy
					3. Cultural Property as a Policy Consideration
				IV. Reflections on England and Wales
			§ 4. The U.S. Approach
				I. The McClain-Doctrine
				II. McClain Revisited – United States v Schultz
				III. Civil Recovery on the Grounds of McClain – An Antique Platter of Gold
				IV. Reflections on U.S. Law
			§ 5. The German Approach
				I. General Rules
				II. Rules on Cross-Border Enforcement and Justiciability
					1. The Imprint Theory
					2. Cross-Border Enforcement on the Ground of Public Policy
					3. Cross-Border Enforcement Jurisprudence
						a) The Egyptian Sarcophagus-Case
						b) The Greek Coins-Case
					4. Recognition within the Scope of the Immorality of Conduct
						a) The Nigeria-Decision
						b) Three Phrygian Offering Cups and Two Byzantine Incense Burners
				III. Reflections on German Law
			§ 6. The Swiss Approach
				I. Swiss Federal Act on Private International Law 1987
				II. India v Crédit Agricole Indosuez
				III. Reflections on Swiss Law
				IV. Conclusion to Chapter 6
	Summary
	Bibliography
	Annex