Beyond Cross-Fertilization: Disclosing the Judicial’s Ongoing Penchant for Public Policy Reasons

T ROUVER DES SOLUTIONS : MÉTHODES ET ANALYSES

E. An Appraisal: The Legitimacy of Cross-Fertilization

IV. Beyond Cross-Fertilization: Disclosing the Judicial’s Ongoing Penchant for Public Policy Reasons

The analysis set out above illustrates that the echo of important judgments goes beyond the boundaries of the jurisdictions where they have been adopted. However, international practice evidences that culture-sensitive settlements do not only depend on the adoption of a cross-fertilizing perspective on the part of judges. Various judgments demonstrate that domestic courts can adopt culture-sensitive decisions by taking account of interna-tional cultural heritage law and policy. This case law includes a number of successful claims whereby domestic courts have ordered restitution through the enforcement of foreign laws – as recommended by a number of UNESCO instruments and notwithstand-ing the rule that prevents a State from relynotwithstand-ing on its public law in an action brought before a foreign court – and the implementation of the norms of international treaties – even if such norms are not self-executing or the national government or the legislator have not enacted legislation to incorporate them into domestic law.

The first case that is worth mentioning is the so-called Nigerian mask case⁷⁷. In this case, the German Bundesgerichtshof assessed the export laws of Nigeria while applying Ger-man law to an insurance contract. This contract related to three containers with

75 GLENN H.PATRICK, Persuasive Authority, McGill Law Journal, 1987, pp. 261 et seqq, p. 294.

76 SLAUGHTER ANNE-MARIE, The Real New World Order, Foreign Affairs, 1997, pp. 183 et seqq, p. 187.

77 Bundesgerichtshof, Allgemeine Versicherungsgesellschaft v EK, 22 June 1972, BGHZ 59 No. 14.

al masks to be transported from Nigeria to Germany. During the transportation, several of these artefacts disappeared. The insurer paid out in respect of the loss incurred and then sued the ship-owner for compensation. The defendant argued, inter alia, that the insurance contract, governed by German law, was void because the export of Nigerian cultural objects violated Nigerian export control legislation. The Bundesgerichtshof espoused this view and held that the shipping insurance contract was unenforceable because it would be contrary to German “good morals”. Furthermore, the Court declared the contract void by referring to the 1970 UNESCO Convention (even if the Federal Republic of Germany was not a State Party to it) and ruled that foreign laws have to be taken into account if they pursue policies about which the international community of States has reached consensus. A few years later, the Tribunale di Torino ordered the restitution of a number of archaeological objects illicitly exported from Ecuador by an Italian citizen⁷⁸. This decision was based on the finding that the law of Ecuador vested ownership in the State and prohibited the export of objects of archaeological value.

However, the Tribunale also made reference to the 1970 UNESCO Convention and its Preamble and affirmed that, although it was not applicable ratione temporis to the dis-pute, it delineated some key principles of international public policy that should be abid-ed by both nationally and internationally to secure the protection of cultural heritage. A similar stance characterises the decision of the Elicofon case⁷⁹. This case concerned two valuable Dürer paintings that were stolen in 1945 during the occupation of the Schwarz-burg Castle by United States Forces. The Court of Appeals for the Eastern District of New York ordered the restitution of the two artworks following an examination of each of the legal issues involved – State succession, due diligence and the timeliness of the legal action – in light of its international implications. As a result, the Court declined to yield to the foreign laws that conflicted with a specific national policy that, in turn, re-flected an internationally recognized policy of restitution of works of art disappeared during times of warfare which can be traced through the cultural heritage treaties adopted under the aegis of UNESCO⁸⁰.

The English decision in the City of Gotha case is also remarkable for its exploration of the public policy issue⁸¹. In this case, the defendants had pleaded the statute of

78 Repubblica dell’Equador v Danusso, Tribunal of Torino, 22 February 1982, RDIPP, 1982, pp. 625 et seqq.

79 Kunstsammlungen zu Weimar v Elicofon, 478 F.2d 231 (2d Cir. 1973), 536 F. Supp. 829 (E.D.N.Y.

1981), aff’d, 678 F.2d 1150 (2d Cir. 1982).

80 OSTENBERG L. HELEN, International Law in Domestic Forums: The State of the Art, Kun-stsammlungen zu Weimar v Elicofon, Brooklyn Journal of International Law, 1983, pp. 179 et seqq, pp. 190 et seqq.

81 City of Gotha and Federal Republic of Germany v Sotheby’s and Cobert Finance SA (9 September 1998, unreported, available at: http://www.iuscomp.org/gla/judgments/foreign/gotha1.htm

mestic judges are obligated to apply and follow, “persuasive authority” is not binding on the judge under the rules of the national system that determine authoritative sources.

Glenn described “persuasive authority” as “authority which attracts adherence as op-posed to obliging it”⁷⁵. Slaughter affirmed: “[d]ecisions rendered by outside courts can have no authoritative power”, but “[t]hey carry weight only because of intrinsic logical power […]”⁷⁶.

Therefore, it is not necessary to establish a binding obligation to engage in cross-fertilization, so as to bring about the universal application of the doctrine of stare decisis.

More simply, it is imperative to nurture the tools and the methods (and possibly to devel-op new tools and methods) that allow domestic judges to engage in an devel-open approach, one that permits to study, learn and take inspiration from the jurisprudential solutions adopted in foreign legal systems essentially because of their inherent merits and because of the necessity to offset the shortcomings of the existing legal framework.

IV. Beyond Cross-Fertilization: Disclosing the Judicial’s Ongoing Penchant for Public Policy Reasons

75 GLENN H.PATRICK, Persuasive Authority, McGill Law Journal, 1987, pp. 261 et seqq, p. 294.

76 SLAUGHTER ANNE-MARIE, The Real New World Order, Foreign Affairs, 1997, pp. 183 et seqq, p. 187.

77 Bundesgerichtshof, Allgemeine Versicherungsgesellschaft v EK, 22 June 1972, BGHZ 59 No. 14.

The English decision in the City of Gotha case is also remarkable for its exploration of the public policy issue⁸¹. In this case, the defendants had pleaded the statute of

78 Repubblica dell’Equador v Danusso, Tribunal of Torino, 22 February 1982, RDIPP, 1982, pp. 625 et seqq.

79 Kunstsammlungen zu Weimar v Elicofon, 478 F.2d 231 (2d Cir. 1973), 536 F. Supp. 829 (E.D.N.Y.

1981), aff’d, 678 F.2d 1150 (2d Cir. 1982).

81 City of Gotha and Federal Republic of Germany v Sotheby’s and Cobert Finance SA (9 September 1998, unreported, available at: http://www.iuscomp.org/gla/judgments/foreign/gotha1.htm

tions. Moses J. found that German law applied. However, pursuant to Sections 1 and 4 of the Foreign Limitation Period Act of 1984⁸², the judge further held that the restitution claim was not barred because, according to the German Civil Code⁸³, the period of limi-tation with regard to the item concerned had begun to run anew when it was transferred into the possession of the person who misappropriated it in 1987. Consequently, the claim succeeded. However, Moses J. established – obiter – that if German law had barred legal action, thereby protecting thieves or mala fide purchasers, it should not have been applied as it would have conflicted with English public policy⁸⁴. Furthermore, in 1997, a Swiss court ordered the return of a painting stolen in France and found in Swit-zerland on the grounds that the onus of proof of good faith on the accused had not been met⁸⁵. Crucially, the Federal Court emphasised that the 1970 UNESCO Convention and the UNIDROIT Convention, which contain principles expressing an “ordre public inter-nationale” either in force or in formation and which “concrétisent l’impératif d’une lutte internationale efficace contre le trafic de biens culturels, permettent en outre de sauve-garder les garanties procédurales nécessaires à la protection des intérêts légitimes du possesseur de bonne foi”. This ruling is remarkable given that at that time Switzerland was not party to neither of the two conventions. The same deference to the 1970 UNESCO Convention emerged from an earlier decision of a Canadian court in a case concerning the return of about 6,000 ancient textiles that had been illicitly exported in the 1980s from Bolivia⁸⁶. In the case United States v Schultz an art dealer was convicted of conspiracy to receive property stolen in Egypt⁸⁷. This case is interesting not only because it demonstrated that United States courts could make use of domestic anti-theft laws to recognize and enforce foreign nations’ patrimony laws, but also because the Court confirmed that it is a policy of the United States to prohibit the importation of stolen or converted goods⁸⁸.

[02.03.2012]). See generally LOMAS PAUL/ORTON SIMON, Potential Repercussions from the City of Gotha Decision, Art Antiquity and Law, 1999, pp. 159 et seqq, p. 165.

82 This Act provided that where proceedings before an English court were governed by the law of a foreign legal system, that system’s statutes of limitation also applied, to the exclusion of the English statute of limitations.

83 Section 221 BGB contained a limitation period of 30 years on the right to recover property which run irrespective of whether the claimant was aware of the existence of the claim or the identity of the per-son in possession.

84 City of Gotha (cit. n. 81), para. II.4.

85 L. v Chambre d’accusation du Canton de Genève, 1 April 1997, ATF 123 II 134.

86 R. v Yorke (1998), 166 N.S.R. (2d) 130 (Nova Scotia Court of Appeal).

87 Cit. n. 47.

88 The same policy argument was endorsed by the Southern District Court of New York in United States v Portrait of Wally (2002 US Dist. LEXIS 6445, 11 April 2002, p. 33).

The appeal decision in Barakat is also relevant for the present discussion⁸⁹. The Court of Appeal did not limit itself to recognize Iran’s ownership, as illustrated above, but it went on to affirm that “[t]here are positive reasons of policy why a claim by a State to recover antiquities which form part of its national heritage [...] should not be shut out […].

Conversely, [...] it is certainly contrary to public policy for such claims to be shut out.

[…] There is international recognition that States should assist one another to prevent the unlawful removal of cultural objects including antiquities”⁹⁰. The Court briefly ex-amined the international instruments having the purpose of preventing unlawful dealing in property which is part of the cultural heritage of States – i.e. the 1970 UNESCO Con-vention, the UNIDROIT ConCon-vention, Directive 93/7, and the Commonwealth Scheme for the Protection of the Material Cultural Heritage of 1993 – and asserted that “[n]one of these instruments directly affects the outcome of this appeal, but they do illustrate the international acceptance of the desirability of protection of the national heritage. A refusal to recognise the title of a foreign State, conferred by its law, to antiquities unless they had come into the possession of such State, would in most cases render it impossible for this country to recognise any claim by such a State to recover antiquities unlawfully exported to this country”⁹¹. Hence, the court affirmed that it is British public policy to recognize the ownership claim of foreign nations to antiquities that belong to their patri-mony.

This growing jurisprudence signals that judges are aware of the consequences of apply-ing rules enacted for normal business transactions involvapply-ing ordinary goods to cultural heritage disputes. This is why this jurisprudence has the effect of countering the domestic systems’ failures to yield culture-sensitive settlements and of developing an environment more protective of dispossessed owners, where honesty and good faith are strictly as-sessed by courts and the protective laws of foreign States are taken into account⁹². In other words, it appears that the “public policy” reservation is used by domestic courts as a safety valve, as a corrective, to prevent miscarriages of justice either by introducing new principles and rules in the law of the forum or by influencing the interpretation and implementation of existing norms.

89 Government of the Islamic Republic of Iran v The Barakat Galleries Ltd. (2007) (cit. n. 44).

90 Idem, para. 98 et seqq, para. 154 et seqq.

91 Idem, para. 163.

92 HENSON J.EMILY, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners – Can Moral Obligations Be Translated into Legal Duties?, DePaul Law Review, 2001–2002, pp. 1103 et seqq, pp. 1145 et seq.