Crossroads in the Great Race: Moving Beyond the International Race to Judgment in Disputes over Artwork and Other Chattels
The author is a member of the Stetson University College of Law faculty. J.D., Georgetown University Law Center; B.A., University of Florida. Professor Anglim was an attorney at Milbank, Tweed, Hadley & McCloy LLP in New York, where she worked on art disputes and Holocaust-era intergovernmental negotiation and litigation issues.
Volume 45, Issue 1 (Winter 2004)
Disputes over the ownership of artwork today tend to lead to litigation characterized by complex fact patterns, multiple parties, and a host of implicated jurisdictions. Consider a case where an Argentine citizen purchases an antique Italian tapestry in Switzerland, then lends it to a museum in the United States, and finally is threatened with suit by a Colombian citizen, who claims the object was stolen while in transit from Belgium. Most litigators would immediately ask, “What court has jurisdiction?” and then, “Which jurisdiction is best for my client?”
International litigation related to cross-border purchases of artwork and other chattels confronts such parties with complex jurisdictional choices. The differences between the laws of the United States and those of many other nations often highlight the potentially outcome-determinative nature of forum selection. Even after the parties find themselves litigating in a particular forum, that forum may or may not coincide with the present location of the chattel in question. Thus, enforcement of the resulting judgment may become difficult or impracticable.
Consequently, litigants 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. This race is also motivated by other procedural, as well as substantive, considerations. For example, while it is generally difficult to expand statutes of limitations periods for prescriptive ownership under equitable doctrines in civil law countries, litigants in U.S. courts generally only are able to get complex time-barred claims dismissed at a high expense. Further, U.S. courts largely ignore the lex situs doctrine, which provides that the substantive law of the situs of a chattel applies to disputes regarding its ownership. In contrast, courts in civil law countries widely make use of this and related doctrines.
An almost inevitable consequence of the race to judgment is expensive parallel litigation with a high risk of contradictory judgments. Moreover, litigation over art is particularly “expensive, often requiring testimony of foreign experts on the laws of their respective countries, as well as resolution of ill-defined international legal principles involving choice of law, conflicts of law, international law, laws of transshipment countries, as well as U.S. law and equity.” In light of this dilemma and other complex international litigation, courts around the world have adopted myriad doctrinal approaches to limit the resultant high costs, waste of judicial resources, and risk of embarrassing, conflicting judgments. These approaches include deference to foreign courts under the doctrines of comity, abstention, lis alibi pendens, and forum non conveniens.
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