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Jonathan Sumption. Flawed title cannot be cleaned by any market transaction because the thief or transferor passes it on to all successive transferees in the transaction chain. German law draws a distinction between theft and conversion, with only theft rendering acquisition in 40 Chechi n 5 It goes some way toward preserving the rule of law. Recovery is not automatic. There is no ascertainable court to determine whether an object is in transit and the forum tends to apply its own law59 without checking for what theft may signal.
The easy transfer of stolen and looted art can also be countered by, among other things, exceptions;60 formulated exceptions;61 or assessment of the diligence of the possessor during the acquisition. That the policy limits of the applicable law argument can assist, was recognized in Winkworth. Time does not need to affect rights to stolen cultural objects. The dogma of the European conflicts system does not permit a multilateral reference rule to assume a public policy function, but the limits of the applicable law, like classification and connection, inform the methodology.
Civil proceedings in New York are guided by the interest of a particular state in maintaining the integrity of the marketplace. The state must be prevented from being used as a marketplace for stolen or looted art. Purchasers must look after themselves. If they have been honest, they at least had an opportunity to investigate provenance. City of Gotha74 dealt with the English public policy status of the limitations provisions that apply to conversions by theft.
The claim was for restitution of the tiny work of art75 looted during the Soviet occupation of Germany. The tiny painting was located in Russia between and mids and, briefly, in West-Berlin since before being put on auction in London in Moses J readily admitted that the conflicts method used was premised on reaching the desired result.
Lectures are given in Michaelmas and Hilary Terms on most aspects of the course. The case law of the European Courts is of considerable importance and looms large in the study of EU law. The Senators are referred to as Lords of Council and Session when sitting in civil cases, and Lords Commissioners of Justiciary when sitting in criminal cases. Asking these questions ultimately leads scholars to address the issue whether explicitly or implicitly of what law is. For this there are separate lists of cases and questions. Norrie, Kenneth Paternity and reproductive technology. In particular, to understand how the law governs business practices that may restrict competition in economic markets through private and public enforcement and to analyse how competition law can curb anticompetitive activities and facilitate free competition.
As such, the location of the painting did not prevent the court from noting that the claim was not time-barred under German law,77 and that views expressed by commentators on the German Civil Code that 65 At G. That the German limitation period runs irrespective of whether the claimant knows of the claim or the identity of the possessor, was acknowledged obiter.
If the completion of the foreign limitation period rewarded thieves and transferees in bad faith, a conflict with English public policy arises. That the limitation period in German law was longer than the period in English law did not justify subordinating the rights of the dispossessed owner to a possessor in bad faith. Since the exception for foreign limitation periods was not applied narrowly,78 there was scope to find that section 4 of the Limitation Act reflects English public policy against criminal gain.
Gotha resonates with the progressive ruling in Iran v Barakat Galleries Ltd. The Court of Appeals in Mirvish v Mott80 recently ruled that the true owner has a right to claim a sculpture affected by conversion. Yulla, the widow of sculptor Jacques Lipschitz, had gifted it to her long-time companion, who had sold his interest in the work to Mirvish. The court preferred not to draw any distinction between theft and conversion, and regarded as irrelevant the expiry of statutory limitations to legal title.
Strict compliance with the law designated by the lex situs principle to evade another law, has systemic effects in the art trade that routinely support the circulation of tainted works of art. This leaves them vulnerable to diverse national legal approaches. It also challenges the foundations of choice of law theory and practice. The aspiration to prevent easy marketplaces for art thieves, smugglers and their transferees is critical to any decision on the merits. It helps choice of law method brace itself against the impact of dogmatic orthodoxy on the illicit trade in art, so as to preserve the integrity of transactions for all owners.
Several alternative reference rules, modifications, exceptions and formulated exceptions have been proposed for title and limitations conflicts. This article has argued that result-selection is desirable and that a policy choice made in favour of the deprived party is required. Once this functional choice is made, the method follows.
New York law qualifies the application of the lex situs rule when the dispossession of the original owner was involuntary and unlawful. English conflicts method demonstrates dis-applying foreign law that conflicts manifestly with fundamental principles of justice. A single-method strategy is bound to fail to constrain an over-inclusive lex situs rule that amplifies the illicit trade of cultural objects. It can only undermine the support which deprived parties require. Volume 9 Issue 3 Jan , pp. Volume 8 Issue 3 Dec , pp.
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