Restitution of Stolen Foreign Cultural Property: Choice of Law & Justice

Abstract

This article examines how choice of law rules shape outcomes in transnational disputes over stolen cultural property, between the country of origin and the good faith possessor of the property. It argues that concept of justice used in designing the choice of law rule used by the court has a deep impact on the design of the choice of law, and inconsequence, the outcome of the dispute. The article examines three choice of law rules: The traditional lex situs rule, which promote predictability but often favours possessors and ‘conflicts justice’, the most significant relationship doctrine that aims at achieving ‘substantive justice’, which may better accommodate the interests of the state of origin but introduce uncertainty and may still favour good faith possessors through forum law bias, and the Belgian lex originis rule, arguing that it offers a more balanced model that combines legal certainty with substantive justice by structurally privileging the law of the country of origin while protecting good-faith possessors. The article emphasizes that, regardless of the connecting factor used, the proving the state of origin's ownership remains a decisive issue that must not be overlooked.