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The purpose of this book is to explore the role of conflict of laws in global governance by examining how a national court should handle international civil disputes over illicitly traded cultural property. Here, conflict of laws refers to the area of law that determines (i) the applicable law, (ii) the competent court(s) for dispute resolution (international adjudicative jurisdiction) in relation to private legal relationships that involve multiple legal orders, and (iii) whether to recognize and enforce a foreign civil judgment.
 
At the international level, some conventions aim to prevent illicit trafficking in cultural property and promote the return of cultural property to the country of origin (e.g. UNESCO's Convention on the Means of Prohibiting and Preventing the Illicit Export, Import, and Transfer of Ownership of Cultural Property (1970)). However, the current international framework is far from satisfactory, partly because its scope and conditions of application are limited.
 
It is thus crucial for the original owner (state or private individual), who wishes to recover cultural property, to file a restitution or recovery claim against the current possessor before the court of the country where the property is located. In Japan, there has been no litigation concerning the restitution of foreign cultural property. However, it is noteworthy that, in recent years, some foreign courts and conflict of laws legislation have shown a favorable attitude toward policies combating illicit trafficking in cultural property.
 
Against this background, this book discusses (i) the law applicable to claims for the return of foreign cultural property, (ii) whether a foreign state can make a claim before another state’s court on its own public regulations on the illicit dealing of cultural property, and (iii) whether a court should consider foreign regulations on the illicit dealing of cultural property, where, for example, a validity of a sale contract that violates such regulations becomes an issue.
 
The feature of this publication is its examination of cross-border illicit trade in cultural property from the perspective of the changing function of conflict of laws under globalization. It essentially argues that the role of conflict law, which has traditionally and chiefly focused on the protection of private interests, should be rethought from the broader perspective of global governance. This idea of ‘conflict law as/for global governance’ can be applied not only to specific themes, such as the cross-border illicit trade in cultural property, but also to other global issues, such as corporate liability for human rights abuses in developing countries. Thus, this book has general and theoretical implications for the research on conflict of laws under globalization.
 

(Written by KATO Shiho, Associate Professor, Institute of Social Science / 2024)