Private International Law, Art and Cultural Heritage
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Private International Law, Art and Cultural Heritage

Christa Roodt

In this timely book Christa Roodt demonstrates how the structure and method of private international law can be applied in its expanding relationship with cultural heritage law. In particular, she explores the use of private international law in the context of ownership claims and the illicit trafficking of cultural objects. She shows how, in decisions about classification and the public policy exception, and in the application and treatment of foreign public law, value-rationality and mutuality can defeat the dogmatic underpinnings of conflicts and jurisdiction rules that frustrate the achievement of global solidarity.
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Chapter 4: Adjudicatory authority and its limits

Christa Roodt

Extract

The question of adjudicatory authority and how it is divided globally is closely related to the question of the power and authority of law. Private international law confronts the very first question of law: the power, authority, and potentiality of law, and the conditions of its exercise. Jurisdiction co-determines how normative existence is ordered. From the perspective of international law, jurisdiction rules deal with the sources and limits of national legal authority. The doctrine of jurisdiction ‘stands somewhere on the borderline between international and municipal law and cannot be treated in isolation from either’. Jurisdiction rules allocate regulatory authority between states at the horizontal level, thereby ordering the horizontal diversity which may arise when a legal issue is based on a decision or allocated to a legal system closely connected to those affected by it. Public international law defines the extent of legitimate adjudicatory authority, and requires that the territorial connection be substantial in order to warrant the assertion of authority. This requirement is not always satisfied. Interests in jurisdiction are varied. A plaintiff has an interest in obtaining relief; his or her opponent has an interest in what is convenient; and state interests impact on jurisdictional principles and practices. For example, whereas the interstate judicial system of the US has an interest in the efficient resolution of disputes, particular sister states may share an interest in furthering substantive social policies. A foreign state will necessarily have an interest in the resolution of the dispute in international litigation.

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