Cross-border civil law litigations involving cultural property are complex and challenging. Private international law seeks to address these challenges and aims to facilitate a smoother process for the parties involved in such litigations. This chapter examines various aspects of private international law related to cultural property through the lens of jurisprudence. It identifies situations where private international law falls short in cultural property-related civil proceedings and explores proposed academic solutions to these shortcomings. The chapter will first discuss the relationship between private international law and cultural property. It will then clarify the circumstances under which a State enjoys immunity from jurisdiction and execution in cultural property cases. Following this, the chapter will clarify which country’s law applies to the characterization of specific types of cultural property. It will also determine the applicable law for both procedural and substantive matters in cross-border cultural property cases. Additionally, the chapter will outline the conditions under which a court may refuse to apply a foreign law that establishes blanket or umbrella ownership over cultural property on the grounds of public policy. Finally, it examines the non-enforceability of foreign cultural property laws with a public law character and identifies mandatory rules related to cultural property that must be applied regardless of the governing law.

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Cultural Property in Private International Law: An Overall Assessment

  • Nuray Ekşi

摘要

Cross-border civil law litigations involving cultural property are complex and challenging. Private international law seeks to address these challenges and aims to facilitate a smoother process for the parties involved in such litigations. This chapter examines various aspects of private international law related to cultural property through the lens of jurisprudence. It identifies situations where private international law falls short in cultural property-related civil proceedings and explores proposed academic solutions to these shortcomings. The chapter will first discuss the relationship between private international law and cultural property. It will then clarify the circumstances under which a State enjoys immunity from jurisdiction and execution in cultural property cases. Following this, the chapter will clarify which country’s law applies to the characterization of specific types of cultural property. It will also determine the applicable law for both procedural and substantive matters in cross-border cultural property cases. Additionally, the chapter will outline the conditions under which a court may refuse to apply a foreign law that establishes blanket or umbrella ownership over cultural property on the grounds of public policy. Finally, it examines the non-enforceability of foreign cultural property laws with a public law character and identifies mandatory rules related to cultural property that must be applied regardless of the governing law.