(1) A claim under Chapter II and a request under Chapter III may be brought before the courts or other competent authorities of the Contracting State where the cultural object is located, in addition to the courts or other competent authorities otherwise having jurisdiction under the rules in force in Contracting States.
(3) Resort may be had to the provisional, including protective, measures available under the law of the Contracting State where the object is located even when the claim for restitution or request for return of the object is brought before the courts or other competent authorities of another Contracting State.
In addition to the jurisdictional rules in force in the Contracting States, the Convention provides a new basis of jurisdiction to adjudicate, namely that of the courts or competent authorities of the State where the cultural object is located. At the time of the adoption of the text, this, for a number of legal systems, was quite a novel concept. It is of great assistance in implementing the Convention since it allows the claimant to take action swiftly and enables the courts to order effective measures to secure restitution or return: precautionary measures as well as the decision of the court or competent authority will be applied directly without resorting to the enforcement procedures required when an object is located in a Contracting State other than the forum State.
Oftentimes, such as in big sales at auction houses, it is likely that the location of the cultural object is known, but not the actual possessor, so having a rule that allows for a claim to be brought in the object’s location is favorable.
Paragraph 3 supplements the general jurisdiction provision in paragraph 1 in respect of claims brought in Contracting State other than the State where the object is located, in that it provides for the implementation of “provisional, including protective measures available under the law of the Contracting State where the object is located”.
European Union
- Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast – Regulation 44/2001 Brussels I)
Article 7(Special Jurisdiction) A person domiciled in a Member State may be sued in another Member State
(4) as regards a civil claim for the recovery, based on ownership, of a cultural object as defined in point 1 of Article 1 of Directive 93/7/EEC initiated by the person claiming the right to recover such an object, in the courts for the place where the cultural object is situated at the time when the court is seised;
- Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast – Directive 93/7/EEC)
Article 1 This Directive applies to the return of cultural objects classified or defined by a Member State as being among national treasures, as referred to in point (1) of Article 2, which have been unlawfully removed from the territory of that Member State.
EFTA and EU
- Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2007) (the Convention renews the previous Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, which extended the application of the rules of the 1968 Brussels Convention to certain States members of the European Free Trade Association).
Article 5 (Special Jurisdiction) A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued:
(4) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;
European Union
- Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast – Regulation 44/2001 Brussels I )
Article 35 (Provisional, including protective, measures) Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.
- Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast – Directive 93/7/EEC)
Article 5 Member States’ central authorities shall cooperate and promote consultation between the Member States’ competent national authorities. The latter shall in particular:
(4) take any necessary measures, in cooperation with the Member State concerned, for the physical preservation of the cultural object;
(5) prevent, by the necessary interim measures, any action to evade the return procedure;
EFTA and EU
- Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2007) (the Convention renews the previous Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, which extended the application of the rules of the 1968 Brussels Convention to certain States members of the European Free Trade Association).
Article 31 (Provisional, including protective, measures) Application may be made to the courts of a State bound by this Convention for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another State bound by this Convention have jurisdiction as to the substance of the matter.
The Lex Causae is the law or laws chosen by the forum-court among the relevant legal systems to judge on international case. “One of the most widely accepted and significant rules of private international law today is that, in determining property rights, a court applies the lex rei sitae, the law of the place where the property is situated. This rule is now accepted by all legal systems.”
“In older times the rule mobilia sequuntur personam (title to movables is judged by the law of nationality of their owner) was accepted in a number of systems. Legal history shows a gradual movement away from this rule: France adopted the lex rei sitae as to movables in 1872, Italy in 1942, while it remained in Spain till 1974″ (L. V. Prott, The Lex Rei Sitae and Acquisition of Title, Recueil des Cours – Collected courses of the Hague Academy of International Law, 1989, Vol. V, p.262-281).
Related Articles:
L. V. Prott, The Lex Rei Sitae and Acquisition of Title, Recueil des Cours – Collected courses of the Hague Academy of International Law, 1989, Vol. V, p.262-281;
C. Freyria, La loi applicable aux successions mobilières en droit international privé frnçais, La maxime: “Mobilia Sequuntur Personam”, Douriez-Bataille, Lille, 1946.
“The interpretation of the lex rei sitae rule gives rise to little problem w
hen immovables are concerned, there are several ways in which the rule can be interpreted when it comes to movables.
One version is to apply the law of the place where the goods are at
the time of the litigation.
- Stroganoff-Scherbatoff v. Bensimon (1967)
- Société D.I.A.C. v. Alphonse Oswald (1971)
Some other jurisdictions prefer to apply the law of the place of the last transaction.
- Winkworth v. Christie’s Ltd (1980)
Another interpretation of the lex rei sitae tends to apply the law of the place of the theft (lex loci delicti commissi).
- Duc de Frias c. Baron Pichon (1886)
- Affaire du vol de la Joconde (1918)
Related Articles:
- L. V. Prott, The Lex Rei Sitae and Acquisition of Title, Recueil des Cours – Collected courses of the Hague Academy of International Law, 1989, Vol. V, p.262-281;
- M. Schneider, The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Regional Meeting “Prevention of Illicit Traffic and Other Illegal Actions Related to Cultural Properties”, CHPO.
- P. Lagarde, La restitution internationale des biens culturels en dehors de la Convention de I’UNESCO de 1970 et de la Convention d’UNIDROIT de 1995, Unif. L. Rev. 2006