A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property

Combating illicit trade in stolen cultural property is and will continue to be a serious problem. Of all the measures that various states can take in combating this trade, the adoption of a choice-of-law rule would rank very low in importance and effectiveness. Even if one thinks only in terms of legal rules, there is little question that international conventions and agreements, criminal and other public-law statutes, and uniform substantive rules would be far more direct and effective than choice-of-law rules. At the same time, these other rules are much more difficult to adopt precisely because they presuppose a degree of consensus that is difficult to attain. In contrast, a consensus for a uniform choice-of-law rule is a far less ambitious goal and thus easier to attain--or so one hopes. In turn, this hope cannot be tested without putting forward specific proposals or contributing to the relevant debate. This Article has proposed a specific, if only modest, but hopefully balanced choice-of-law rule. The rule may or may not be found acceptable, but if it helps stimulate the debate--even by becoming a target of criticism--then this Article will have served its purpose

Choice of Law in Cross-Border Torts: Why Plaintiffs Win and Should

This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (i) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system. One of the findings of the Article is that, despite using different approaches and invoking varied rationales, courts that have joined the revolution have reached fairly uniform results in resolving cross-border tort conflicts: they have applied the law of the state of either the injurious conduct or the resulting injury, but, in the vast majority of cases (eighty-six percent), they have applied whichever of the two laws favored the tort victim. Another finding is that the vast majority of recent conflicts codifications around the world (a total of twenty) have adopted the same solution: they apply whichever law favors the victim, by authorizing either the court or the victim directly to make the choice. The Article concludes by examining whether the results of the American cases can be compressed into new content-sensitive, result-selective choice-of-law rules which would be free of the vices of the old rules and would be easy for judges to apply. It answers the question in the affirmative and, to prove the point, it offers three options for such rules

What Law Governs Forum Selection Clauses

The article focuses on the laws regarding forum selection clauses present in choice-of-law question and systems require the chosen court to undertake a choice of-law analysis for selecting the state when law of the forum state