Crossroads in the Great Race: Moving Beyond the International Race to Judgment in Disputes Over Artwork and Other Chattels

Abstract

Parties to international art disputes often race to the jurisdiction most likely to apply the law favorable to their position in hopes that other jurisdictions will give res judicata effect to the resulting judgment. Courts use myriad doctrines to try to reduce the risk of competing claims of jurisdiction and incongruent results, but this risk permeates jurisprudence relating to artwork and other chattels.

Scholars in the field often argue in favor of universal adoption of specific rules, such as the lex loci rei sitae doctrine, through multilateral treaties. This Article, written on the verge of possible change resulting from discussions at the Hague Conference on Private International Law and the ALI, posits a simple, common sense theory: courts should defer to the forum exercising in rem jurisdiction over an action for ownership of a chattel. The forum with in rem jurisdiction will have the most control over the ultimate disposition of the chattel. This practice would decrease the likelihood of embarrassing jurisdictional power struggles, diplomatic confrontations, and conflicting judgments. This is particularly important where art and cultural antiquities are at issue, as both are a common source of diplomatic tension and emotionally charged litigation.

Keywords: Art, artwork, Nazi, chattel, cultural patrimony, cultural property, cultural, culture, museum, gallery, jurisdiction, forum, enforce, enforcement, judgment, res judicata, limitation, civil, lex situs, choice of law, conflicts of law, international law, comity, abstention