RESTITUTION OF CULTURAL VALUES AND LIMITATION OF ACTIONS RULES
DOI:
https://doi.org/10.17721/1728-2292.2023/1-57/111-115Keywords:
limitation of actions, cultural values, bona fide purchaser, adverse possession, actual discovery, due diligence, demand and refusal, restitutionAbstract
B a c k g r o u n d . The issue of restitution and the return of cultural values in Ukraine has gained particular relevance in light of the aggression against our country. Monitoring groups report the illegal export of cultural artifacts to the occupying nation, with some potentially finding their way into Russian museums. However, a considerable portion might be privately owned abroad, necessitating legal measures for their repatriation.
M e t h o d s . The research employed various methods, including dialectical, systemic-structural, and comparative-legal approaches.
R e s u l t s . The author examines the nuances of limitation of actions applied to claims in the return of cultural values both in Civil law countries and Common law countries. The "adverse possession" doctrine, used in Civil law countries, is examined. For this purpose, the Civil Code of Switzerland and the Code of Cultural and Landscape Heritage of Italy were scrutinized and analyzed. The application of limitation of actions in disputes concerning the return of cultural artifacts in Common Law countries is examined separately. Special attention is paid to the analysis of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of June 24, 1995. It has been proven that the approach used in this convention is flexible and balanced and contributes to the protection of both the original owner and the bona fide purchaser.
C o n c l u s i o n s . The application of the "adverse possession" doctrine in its pure form has been found to pose significant challenges for the original owners of unlawfully seized cultural property. The effectiveness of the concept of limitation of actions in disputes related to the repatriation of cultural property in the UK has been established, providing adequate protection for the rights of the object owners. It is claimed that it is appropriate to establish special limitation of actions rules for the restitution and return of cultural values in Ukrainian legislation. As an example, one could consider adopting a model similar to that provided for in the UNIDROIT Convention or in the Code of Cultural and Landscape Heritage of Italy.
References
Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg &Feldman Fine Arts, inc. (n. d.). https://www.uniset.ca/microstates/917F2d278.htm
Bibas, S. (1994). The case against statutes of limitations for stolen art. Penn Carey Law: Legal Scholarship Repository. https://scholarship.law.upenn.edu/faculty_scholarship/827
Black, H. (1991). Black's law dictionary: Definitions of the terms and phrases of American and English jurisprudence, ancient and modern. St. Paul., Minn. West Publishing Co.
Chagall gouache – Solomon R. Guggenheim Foundation and Lubell. Chagall Gouache – Solomon R. Guggenheim Foundation and Lubell – Centre du droit de l'art. (n. d.). https://plone.unige.ch/art-adr/cases-affaires/case-chagall-gouache-2013-solomon-r-guggenheim-foundation-and-lubell
Chechi, A. (2017). When Private International Law Meets Cultural Heritage Law – Problems and Prospects. Volume XIX Yearbook of Private International Law, XIX, 269–293.
Code of the Cultural and Landscape Heritage. (2004). Legislative Decree of Italy of 22.01.2004 № 42. https://www.wipo.int/wipolex/en/legislation/details/2491
Kenyon, A. T., & Mackenzie, S. (2002). Recovering stolen art? Australian, English and US law on limitations of action. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.307980
Limitation act. (1980). Law of United Kingdom from 13.11.1980. https://www.legislation.gov.uk/ukpga/1980/58
Kryvolapov, B. (2001). Limitation of Acts in Private International law. IMV [in Ukrainian].
Swiss Civil Code. (1907). Federal law of Switzerland of 10.12.1907. https://www.fedlex.admin.ch/eli/cc/24/233_245_233/en#book_4/part_1/tit_20/lvl_B/lvl_VII
Unidroit Convention on stolen or illegally exported cultural objects. (1995). UNIDROIT Convention of 24.06.1995. https://www.unidroit.org/wpcontent/ uploads/2022/12/Convention-on-Cultural-Objects-Rome-1995.pdf
UNIDROIT. (2022). Unidroit Convention on stolen or illegally exported cultural objects 1995 – States Parties. https://www.unidroit.org/instruments/cultural-property/1995-convention/status
Vliet, L. van, & Berlee, A. (2021). Limitation Periods and Works of Art. In B. Akkermans (Ed.), Sjef-Sache', Essays in honor of Prof. mr. dr. J. H. M. (Sjef) van Erp on the occasion of his retirement. The Hague, Eleven International Publishing.
