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THE 10TH LAWASIA INTERNATIONAL MOOT COMPETITION

BEFORE

KUALA LUMPUR REGIONAL CENTER FOR ARBITRATION

2015

BETWEEN

THE GOVERNMENT OF NEPAL

(CLAIMANT)

AND

AUSTRALIAN NATIONAL MUSEUM, NATIONAL MUSEUM (MALAYSIA), DR. JOHN THOMAS SMITH.

(RESPONDENTS)

MEMORIAL FOR THE CLAIMANT

A1508-C TABLE OF CONTENTS ii

-MEMORIAL FOR THE CLAIMANT-

TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................................. iv

STATEMENT OF JURISDICTION ..................................................................................... vi

SUMMARY OF FACTS ........................................................................................................ vii

QUESTIONS PRESENTED ................................................................................................... x

SUMMARY OF ARGUMENTS ............................................................................................ xi

ARGUMENTS ADVANCED .................................................................................................. 1

1. MALAYSIA LAW GOVERNS THE PROCEDURE OF THE ARBITRATION AND NEPALESE

LAW GOVERNS THE SUBSTANTIVE DISPUTE. ............................................................................. 1

1.1. THE LAW OF MALAYSIA IS THE PROCEDURAL LAW OF THE ARBITRATION AS KUALA

LUMPUR IS THE SEAT OF ARBITRATION. ..................................................................................... 1

1.2. THE LAW OF NEPAL IS THE SUBSTANTIVE LAW GOVERNING THE DISPUTE. .................. 3

2. THE STATUE IN QUESTION IS THE CULTURAL PROPERTY OF NEPAL. ........................... 5

3. THE EXPORT OF THE STATUE WAS ILLICIT AS IT WAS IN CONTRAVENTION OF THE

EXPORT REGULATIONS OF NEPAL. ............................................................................................ 6

3.1. NEPAL HAD OWNERSHIP OVER THE STATUE. ................................................................ 6

3.2. THE EXPORT OF THIS SCULPTURE OR IDOL IS ILLEGAL ACCORDING TO THE

CONVENTION AS WELL AS THE NEPALESE LAWS. ........................................................................ 7

4. ACCEPTANCE OF THE IDOL BY THE AUSTRALIAN NATIONAL MUSEUM WAS

UNLAWFUL AND THE MUSEUM DOES NOT HAVE ANY TITLE OVER THE PROPERTY. ................. 8

5. THE GOVERNMENT OF NEPAL HAS A RIGHTFUL CLAIM OVER THE PROPERTY;

THEREFORE IT MUST BE REPATRIATED BACK TO NEPAL. ...................................................... 10

5.1. THE STATUE MUST BE REPATRIATED TO NEPAL. ........................................................ 10

A1508-C TABLE OF CONTENTS iii


5.2. THE IMPORT WAS ALSO ILLEGAL AND THE STATUE IS ELIGIBLE FOR FORFEITURE AS

PER AUSTRALIAN LAWS. ........................................................................................................... 12

6. ARTICLE 5 OF THE UNIDROIT CONVENTION ENABLES A STATE TO REQUEST ANY

COMPETENT AUTHORITY TO ORDER THE RETURN OF A CULTURAL OBJECT ILLEGALLY

EXPORTED FROM THE TERRITORY OF THE REQUESTING STATE. ........................................... 13

PRAYER FOR RELIEF ....................................................................................................... 15

A1508-C INDEX OF AUTHORITIES iv


INDEX OF AUTHORITIES

Municipal Cases

Government of India v. Cairn Energy India Pty Ltd ................................................................. 3

King of Italy v. de Medici, (1918) 34 TLR 623 ....................................................................... 10

Philips v. Eyre, (1870) LR 6 QB 1 ............................................................................................. 3

Republic of Iran v. Barakat Galleries, [2007] EWCA Civ 1374 ......................................... 5, 11

Shashoua v. Sharma, [2009] 1 C.L.C 716 ................................................................................. 2

Arbitration Cases

ICC Case No. 5505 of 1987, Preliminary Award, 1987, 13 Y.B. Com. Arb. 110 ..................... 2

Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990) ................ 9

Treatises

Australian Best Practice Guide To Cultural Material ................................................................ 9

Boys v. Chaplin, [1971] AC 356 ................................................................................................ 4

Convention on the Recognition and Enforcement of Foreign Arbitral Awards ........................ 3

Derek Fincham, How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural

Property .................................................................................................................................. 8

Elihu Lauterpatch, by An interpretation of Article 2, OECD Draft Convention on the

Protection of Foreign Property, 1967 ..................................................................................... 9

G. Petrochilos, Procedural Law in International Arbitration 64, 207 (2004) ........................... 2

ILC Articles on Responsibility of States for Internationally Wrongful Acts, 2001 ................ 10

Jeff Waincymer , Procedure and Evidence in International Arbitration (Kluwer Law

International, 2012) ................................................................................................................ 1

KLRCA i-Arbitration Rules ....................................................................................................... 3

UNESCO Convention, 1970 ...................................................................................................... 7

UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995) ..... 12

Vienna Convention on Law of Treaties, 1969 ........................................................................... 9

ICJ Cases

Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28 .......... 12

U.N. Docs.

A1508-C INDEX OF AUTHORITIES v


Annex to General Assembly Resolution 56/83 of 12 December 2001, and corrected by

document A/56/49(Vol. I)/Corr.4 ........................................................................................ 10

Journal Articles

John Henry Merryman, Public Interest in Cultural Property, California Law Review, March

1989...................................................................................................................................... 10

Municipal Statues

Export and Import (Control) Act, 2013 (1957). ......................................................................... 7

Protection of Movable Cultural Heritage Act, 1986 ................................................................ 11

A1508-C STATEMENT OF JURISDICTION vi


STATEMENT OF JURISDICTION

The Government of Nepal (Claimant) and the Australian National Museum, the

National Museum (Malaysia) & Dr. John Thomas Smith, Jr. (Respondents), have

agreed to submit the dispute to “binding arbitration” under the auspices of the Kuala

Lumpur Regional Centre for Arbitration. Rule 1(i) of the Kuala Lumpur Regional

Centre for Arbitration gives this Arbitral Tribunal a valid jurisdiction over this dispute.

A1508-C SUMMARY OF FACTS vii


SUMMARY OF FACTS

I

A stone statute of Lord Vishnu seated between goddesses Lakshmi and Garuda, at least 300

years old, was gifted by the Dean of the Central Department of Sociology/Anthropology at

Tribhuvan University in Nepal to Dr. John Thomas Smith, Jr., an internally acclaimed

Australian anthropologist who was also an old friend of his, as appreciation for his visit and

lectures at the University. He usually received gifts of archaeological importance when he

visited institutions as a guest lecturer. However, none of the previous gifts had been as

important or rare as the one in question here. Dr. Smith was capable of recognizing whether

the statue was genuine and was aware of its authenticity on receiving it.

II

The statue was not classified as inalienable under Article 13(d) of the UNESCO Convention

on illicit transfer of cultural property. Since the Nepalese government was not aware of the

Convention or did not consider it to be applicable in this situation. The statue was discovered

by Nepalese sheep herders within Nepal’s current geographical borders. The statue was

originally on display at the Chhauni Museum (the National Museum) and was relocated to the

National University campus in Kathmandu in 2010. It was located in the lobby of the

building housing Central Department of Sociology/ Anthropology of the Tribhuvan

University. There were no specific documents regarding the responsibility for its safekeeping.

Yet, it can be assumed that it was the Dean's responsibilities to take care of and protect the

statue. The statue was simply displayed in the University and it was orally agreed upon by the

parties that in case of failure of the university to display the statue properly, it would be

returned to the National Museum.

III

The Dean had the authority to give away any statue belonging to him or to the Law Faculty to

a visiting expert; however, he did not have the authority gift any object belonging to a third

party without the consent and/or permission of the said party. The law in Nepal prohibits

objects such as sacred paintings, images, manuscripts, etc. that are valued for religious and

cultural reasons and are more than 300 years old from being exported out of the country.

A1508-C SUMMARY OF FACTS viii


Additionally, a special certification by the Department of Archaeology in Kathmandu is

essential for exporting antiques out of Nepal.

IV

Dr. Smith did not confirm with Nepalese authorities before taking the statue abroad,

regarding the legality of the removal of the statue from the country. There is no evidence to

support his claim that he informed the custom officials of Nepal as well as Australia of

possessing the statue.

V

He donated the statue to the Australian Museum, Sydney, informing the Museum Director of

its place of origin, i.e. Nepal and also stated that he had received it from a high ranking

Nepalese government official. Here, it was displayed as part of an exhibit promoting

knowledge, understanding and enjoyment of diverse cultures. It was the loaned by the

Australian Museum to the National Museum in Kuala Lumpur, Malaysia. Both the museums

were aware of the authenticity of the statue after examination of the statue by their respective

experts. The statue was also displayed as genuine in both these museums. The is no record to

show that the Australian and Malaysian Museums were aware of the Nepalese export

regulations, however, it can be reasonably assumed that the Director or any member of the

senior staffs at both the museums were or could have very easily been

aware of the said regulations. Additionally, neither the Australian National Museum nor the

National Museum of Malaysia look for any official documentation such as an export

certification, etc.

VI

The Nepalese government became aware of the fact that the statue was no longer in Nepal

after a Nepalese tourist reported it to Nepalese officials on viewing it in a display at the

National Museum, Malaysia.

VII

The Government of Nepal asserts that the statue has been stolen and has demanded it be

returned to Nepal immediately. In order to avoid the expensive and time consuming process

of litigation, the parties have agreed “binding arbitration” under the auspices of the Kuala

Lampur Centre for Regional Arbitration.

A1508-C SUMMARY OF FACTS ix


The Government of Nepal has not made demands through diplomatic channels for the return

of the statue. But it has not barred such possibility in the event that this arbitral proceeding

does not lead to repartition of the statue.

A1508-C QUESTIONS PRESENTED x


QUESTIONS PRESENTED

1. What is the procedural Law governing the arbitration between the parties?

2. What law is applicable to the substantive dispute between the parties?

3. Whether the statue in question is the Cultural property of Nepal.

4. Whether the export of the statue by Dr. John Thomas Smith, Jr. lawful.

5. Does the Australian National Museum have a valid claim over the statue?

6. Can the Government of Nepal successfully claim the repatriation of the property?

SUMMARY OF ARGUMENTS


xi


1. The procedural law of the arbitration is the Law of Malaysia and the substantive law

governing the arbitration is the Law of Nepal.

First, the parties to the arbitration have not decided on the seat of arbitration therefore the

Tribunal, according to Rule 6(1) of the Kuala Lumpur Centre for Regional Arbitration,

should declare that the seat of this arbitration is Kuala Lumpur. Therefore, the procedural law

governing the arbitration should be the Law of Malaysia.

Second, the Tribunal may apply the conflict of laws rule it deems appropriate to determine

the he applicable law to this substantive dispute. In this dispute there have been wrongs

committed in different jurisdictions which are interlinked therefore the Tribunal should apply

the rule of double actionability and its exception. Proper application of the principle would

determine that the law applicable to the substantive dispute is the Law of Nepal.

2. The statue in question is the cultural property of Nepal.

The stone statue of Lord Vishnu seated between goddesses Lakshmi and Garuda, which was

presented to Dr. Smith by the Dean of Tribhuvan University falls under the criteria for

cultural property as provided under UNESCO Convention. The statue is cultural property as

per Section 2(b) of the AMPA. 2013 and Article 1(g) (ii) of the UNESCO Convention as it is

found in the territory of Nepal and is a genuine one.

3. The export of the statue was illicit.

The export of the statue was illicit. Nepal had ownership over the statue. The statue is an

archaeological object found in Nepal and therefore shall be under the custody of the

Department of Archaeology as per Section 17A of the Ancient Monument Preservation Act.



xii

The export was in contravention to Rule 90 of the Guide on Export Procedure and

Documentation and the UNESCO-WCO Model Export Certificate for Cultural Objects:

UNESCO Handbook.

4. Acceptance of statue by the Australian National Museum was done unlawfully.

The Statue should not have been accepted by the Australian Museum when Mr. Smith

donated it. The PMCHA as well as the UNESCO Convention prevent any State party to

accept property that has been illegally exported. Provenance and due diligence was not

applied before taking the statue in the museum.

5. The Government of Nepal has a rightful claim to the statue under International Law.

The statue must be repatriated to Nepal. Article 13(b) of the UNESCO Convention provides

for the restitution of illicitly exported and imported cultural property. Also, abiding by the

articles of state responsibility, especially Article 4, the Statue must be returned to Nepal.

PMCH Act, Section 14 (1), where a protected object of a foreign country has been exported

from that country; the export was prohibited by a law of that country relating to cultural

property; and the object is imported, the object is liable to forfeiture. Hence, on the basis of

all the previous submissions, namely, illicit export of the statue by Dr. Smith, wrongful

acceptance of the same by the Australian museum, invalid loan of the same to Malaysian

Museum by Australian Museum and the applicability of relevant provisions of the

UNIDROIT Convention, UNESCO Convention, Nepalese Laws, Australian Laws, that Nepal

has the right to claim repartition of the statue.

A1508-C ARGUMENTS ADVANCED 1


ARGUMENTS ADVANCED

1. MALAYSIA LAW GOVERNS THE PROCEDURE OF THE ARBITRATION AND NEPALESE LAW

GOVERNS THE SUBSTANTIVE DISPUTE.

The law governing the governing the arbitration is generally the law of the seat of

arbitration1 and in legal terminology it is called lex arbitri and the law governing the

substantive dispute is called lex causae.

In the present dispute the arbitration agreement between the parties does not explicitly

specify the lex arbitri as well as the lex causae. But, the parties have chosen to submit their

dispute as per the institutional rules of the Kuala Lumpur Regional Center for Arbitration

(hereinafter referred to as the KLRCA rules).

Therefore, the Claimant submits that the Tribunal should find that the law governing

the arbitration should the law of Malaysia and the law governing the substantive dispute

should the Law of Nepal.

1.1. THE LAW OF MALAYSIA IS THE PROCEDURAL LAW OF THE ARBITRATION AS KUALA

LUMPUR IS THE SEAT OF ARBITRATION.

The law governing the arbitration is generally the law of the seat of arbitration.2

Therefore, to determine the procedural law of this tribunal it is essential to determine the seat

of the arbitration first.

1.1.1. The Intended Choice of the Seat of Arbitration of This Tribunal is Kuala

Lumpur.

It is undisputed that the parties have agreed to submit their dispute to arbitration under

the auspices of the Kuala Lumpur Regional Center for Arbitration.3 Therefore, binding

1 Jeff Waincymer , Procedure and Evidence in International Arbitration (Kluwer Law International, 2012) at p. 167. 2 Ibid. 3 Moot Problem para (4).



themselves by the rules enshrined under KLRCA i-Arbitration Rules (Hereinafter referred to

as the Rules).4

Pursuant to the Rule 6(1) of the Rules which state that the parties may agree on the seat

of arbitration. Failing such agreement, the seat of the arbitration shall be Kuala Lumpur,

Malaysia, unless the arbitral tribunal determines that another seat is appropriate.

The parties have agreed to submit their dispute to arbitration which would take place in

Kuala Lumpur; hence they have decided the venue of the arbitration to be Kuala Lumpur.5 It

is an accepted principle that in case where the parties do not explicitly specify the seat of

arbitration, the agreed venue is taken to be the intended seat of the arbitration. In the case of

Shashoua v. Sharma,6 it was held by the English Court that, in an arbitration clause which

provided for arbitration to be conducted in accordance with a supranational body of rules

(which is KLRCA rules in this case), a provision for the venue of the arbitration should

amount to a juridical seat for that purpose.7 This position was also recognized by an arbitral

award in ICC Case No. 5505 of 19878. Therefore the seat, generally, is the country chosen as

the place of arbitration.9

Although Kuala Lumpur is not specifically agreed upon as the juridical seat of the

arbitration, it was specified as the venue of the arbitration. In absence of any agreement to the

contrary, the appropriate seat of this arbitration should be Kuala Lumpur. Therefore, it is

submitted before the tribunal that, it should find Kuala Lumpur as the seat of this arbitral

tribunal.

1.1.2. Since the seat of the arbitration is in Kuala Lumpur, the procedural law

governing the arbitration should be the law of Malaysia.

The law of the seat of the arbitration should, generally, be the procedural law governing

the transaction also known as lex arbitri.10 The decision of Malaysian Federal Court in the

4 KLRCA i-Arbitration Rules, Rule 1. 5Clarification to the Moot Problem, Part II, point C. 6 [2009] 1 C.L.C 716 7 Shashoua v. Sharma, [2009] 1 C.L.C 716, ¶-27. 8 ICC Case No. 5505 of 1987, Preliminary Award, 1987, 13 Y.B. Com. Arb. 110. 9 G. Petrochilos, Procedural Law in International Arbitration 64, 207 (2004). 10 Supra note 1.



case of Government of India v. Cairn Energy India Pty Ltd,11 lay down that the law of the

seat of arbitration should be the procedural law of the arbitration.

Also, Article V(I)(d) of the New York Convention provides for setting aside of an

arbitral award if “the arbitral procedure was not in accordance with the agreement of the

law of the country where the arbitration took place.” Thus, the law of the seat is necessarily

the procedural law governing the arbitration.12

This would enable the application of the arbitration law of Malaysia which is

Arbitration Act, 2005.13 The operation of this act enables the arbitral tribunal to decide the

applicable law or the substantive law which would govern the dispute between the parties to

the arbitration proceedings, by conflict of laws rules.14 Hence, it is submitted before this

arbitral tribunal that it should find the law of Malaysia governing the arbitration and

Arbitration Act, 2005 as the lex arbitri.

1.2. THE LAW OF NEPAL IS THE SUBSTANTIVE LAW GOVERNING THE DISPUTE.

Section 30(4) of the Arbitration Act, 2005 and KLRCA rules15 empowers the Tribunal

to have discretion in order to find the applicable law to govern the substantive dispute in case

the parties have not decided the same in their arbitration agreement.

The arbitral tribunal must apply conflict of laws rules to determine the applicable law.16

The tribunal can resort to the application of double actionability rule in order to determine the

applicable law governing the dispute between the parties before this tribunal.

According to the principle of double actionability rule, an action for the alleged

wrong17 was committed in the jurisdiction of a country will be successful in the arbitral seat

only if it would be actionable under the law of the country where the said wrong was

committed and, under the law of the arbitral seat as well.

However, this rule also carries with it an exception, which says that:

11 [2012] 3 MLRA 1 12 Article V(1)(d) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 13 Section 1(1) of Arbitration Act 2005. 14 Section 30(4) of Arbitration Act, 2005. 15 KLRCA i-Arbitration Rules, Rule 6(1). 16 Ibid. 17 Philips v. Eyre, (1870) LR 6 QB 1.



However, where either the law of the arbitral seat or the law of the place where the tort

was committed is only fortuitously connected to the dispute, only the law of the other

jurisdiction will apply.18

To establish the proper operation of this principle it is essential to meet certain criteria

as laid down in the case of Boys v. Chaplin.19 It is necessary to identify the policy of the rule,

to inquire to what situations, with what contacts, it was intended to apply; whether not to

apply it, in the circumstances of the instant case, would serve any interest which the rule was

devised to meet.20

Some other key connecting factors are:

a. The location where the facts giving rise to the dispute originated.

b. Where the alleged wrong was committed.

In this case, the Respondent’s (Queensland Smith) wrongful act is that, he exported the

property out of Nepal without obtaining the Export certificate as required by the Nepalese

law.

He deprived the People of Nepal of the right to enjoy their cultural property. The act of

Queensland Smith, of breaching the law of Nepal and wrongfully taking away the property

which rightfully belongs to the Government of Nepal, occurred in the territory of Nepal.

Therefore the place where the wrongful act occurred is Nepal.

Since the facts giving rise to dispute occurs in Nepal and the alleged wrong also occurs

in Nepal. Although Malaysia is the forum of the dispute, the facts of the dispute, the wrongful

commission of the act and the place where the wrongful act was committed is Nepal.

Malaysia is just fortuitously related to the dispute. Hence there is no interest served in

applying the Malaysian substantive law to this dispute.

Therefore, it is submitted before the Tribunal that in light of the principle laid down in

Boys v. Chaplin and the operating exception, the applicable law governing the substantive

dispute should be the law of Nepal.

18 [1971] AC 356. 19 Ibid. 20 Ibid.



2. THE STATUE IN QUESTION IS THE CULTURAL PROPERTY OF NEPAL.

The stone statue of Lord Vishnu seated between goddesses Lakshmi and Garuda, which

was presented to Dr. Smith by the Dean of Tribhuvan University falls under the criteria for

cultural property as provided under UNESCO Convention.

The property in question, i.e. the sculpture, was situated within the territory of Nepal.

Relying on the principle of proximity, we can say that application of Nepalese Law would be

most beneficial while determining the status of said property and concluding whether it

constitutes cultural property or not. The Section 2(b) of the Ancient Monument Preservation

Act, 2013 of Nepal can be relied upon for the definition of cultural property as acknowledged

in Nepal and for determining whether the idol qualifies as cultural property of Nepal.

The statue is an object21 or an antique that is more than 100 years old,22 interpreting this

article to be inclusive. In addition to that, it is an original statue23 of artistic interest as

provided under Article 1(g) (ii) of the UNESCO Convention24. Also, according to Article 425

of this convention, any cultural property found26 within the national territory of a state27

forms a part of the cultural heritage of the said state.

Nepal is a signatory to the UNESCO Convention. The convention provides for criteria

for qualification of objects as cultural property as well as antiques. Hence, the convention and

its provisions are to be taken into consideration while determining the status of the statue.

The idol was found by sheep herders within the national territory of Nepal, the state in

the given context.28 Also, this statue is at least 300 years old,29 hence is an antique.

21 Handbook, 19. 22 Art 1(e) Convention. Given in problem, footnote 3: more than 300 years old. 23 Clarifications, 3, Q. 4. 24 Article 1, UNESCO Convention, 1970. 25 Article 4, UNESCO Convention. 26 Republic of Iran v. Barakat Galleries, [2007] EWCA Civ 1374. 27 Further clarifications. Part II, C, Page 3, question 6. 28 Id. 29 Footnote 3, moot problem.



As the statue fulfils the criteria given in both the UNESCO Convention as well as the

Nepalese Law, therefore, it forms a part of cultural heritage and hence is cultural property.

3. THE EXPORT OF THE STATUE WAS ILLICIT AS IT WAS IN CONTRAVENTION OF THE EXPORT

REGULATIONS OF NEPAL.

3.1. NEPAL HAD OWNERSHIP OVER THE STATUE.

Section 17A of the Ancient Monument Preservation Act says that all archaeological

objects found anywhere shall be under the custody of the Department of Archaeology.

Further, Section 16A gives out a special provision relating to Arts. It says that

notwithstanding anything contained in this Act, the Department of Archaeology may

conserve or cause to conserve the “most rare” type of arts, showing the importance of any

specific time.

Now, in the present case, the object i.e. the statue was found in the territory of Nepal30.

Therefore applying Section 17A, the statue comes under the custody of the Department of

Archaeology of Nepal. Further, the statue is a rarest of rare artefact and holds not only

religious importance but also historical importance of the era it belonged to, therefore

fulfilling the criteria given in Section 16A.

The export occurred in Nepal. Going by the principle of territorial nexus, it Nepalese

law on export of cultural property should be examined to determine the nature, such as

legality, of the export of the statue. Rule 90 of the Guide on Export Procedure and

Documentation provided for in Nepal lays down the procedure for export of goods from the

state. The export of the statue should be examined according to this provision. Additionally,

there is a requirement to procure a special certificate from the Department of Archaeology in

30 Further clarifications. Part II, C, Page 3, question 6.



Kathmandu31 for the export of antiques. An export of antiques must abide with this

regulation. Hence, it is a humble submission of the Claimant to declare the statue as being

state owned by Nepal.

3.2. THE EXPORT OF THIS SCULPTURE OR IDOL IS ILLEGAL ACCORDING TO THE

CONVENTION AS WELL AS THE NEPALESE LAWS.

The Convention32 states that states need to draft laws for preventing illicit import and

export of cultural property.33 The Nepalese Law on export and import34 talks about the Power

of Government of Nepal to prohibit or control export and import, if the Government of Nepal

considers that it is necessary to prohibit or control exportation or importation of any goods

for the attainment of the objective of protection of national assets(heritage) of artistic, historic

or archaeological value35, it may, by a notified order, prohibit, or apply full or quantitative

restriction on, the exportation or importation of such goods, with or without specifying any

specific condition or period value.36

A special guideline37, clarifying the above provision provides that exporting products of

archaeological importance and artistic value including idols, etc. that is more than 100 years

old is prohibited in its entirety.38

Nepal, as submitted above, is a signatory to the UNESCO Convention. Additionally,

the export that took place ended in Australia, which is also a signatory to this convention.

Hence, the two states are bound by the provisions of the Convention. Consequently, this

31Moot Problem. 32 UNESCO Convention, 1970. 33 Art 5(a), UNESCO Convention, 1970. 34 Export and Import (Control) Act, 2013 (1957). 35 Section 3(1)(f), Export and Import (Control) Act, 2013 (1957). 36 Section 3(1), Export and Import (Control) Act, 2013 (1957). 37 A Guide on Export Procedure and Documentation, rule 90, seen at http://nepal.smetoolkit.org/nepal/en/content/en/1702/A-Guide-on-Export-Procedure-and-Documentation. 38 Id.



transfer or change in location of the property would be governed by provisions of the

Convention.

The Convention39 provides for a specific procedure to be followed while exporting

these objects, further illustrated in the Handbook.40 In addition to that, any antique41 being

exported from Nepal needs to be done following an established procedure.42

In the given case, the idol is of archaeological importance and is at least 300 years

old43. The export of the same was prohibited according to the provisions of the import and

export regulations44 as well as the Guidelines45 issued in furtherance of the provision.

Additionally, no forms had been filled and no certificate had been obtained by Dr. Smith

while exporting the idol from Nepal to Australia.46 Therefore, it is our humble submission

that the export of the statue from Nepal to Australia was illicit.

4. ACCEPTANCE OF THE IDOL BY THE AUSTRALIAN NATIONAL MUSEUM WAS UNLAWFUL AND

THE MUSEUM DOES NOT HAVE ANY TITLE OVER THE PROPERTY.

The idol should not have been accepted by the Australian Museum when Mr, Smith

donated it. The Museum is governed by the Australian Museum Act, making it a statutory

body and hence, state. Since Australia, as submitted above, is a signatory to the Convention,

the functions of the Museum must also be in accordance with the provisions of the

Convention.

The Australian National Museum is located within the territory of Australia and is

governed by the Australian law. Nepalese regulations and laws do not bind the functions of

39 UNESCO Convention, 1970. 40 UNESCO-WCO Model Export Certificate for Cultural Objects: UNESCO Handbook, 6. 41 Article 1(e), UNESCO Convention, 1970. 42 Moot problem, 3. Nepalese export regulations. 43 Footnote 3, memo problem 44 Section 3, Export and Import (Control) Act, 2013 (1957) 45 A Guide on Export Procedure and Documentation. 46 Moot problem, see Id 11



the Museum and no action can be taken against it based on the Nepalese legal system. Hence,

based on territorial nexus, we use the Australian law to check the acts of the museum.

The PMCHA47 as well as the UNESCO48 Convention prevent any State party to accept

property that has been illegally exported49.

In determining whether the possessor exercised due diligence, regard shall be had to all

the circumstances of the acquisition, including the character of the parties, the price paid,

whether the possessor consulted any reasonably accessible register of stolen cultural objects,

and any other relevant information and documentation which it could reasonably have

obtained, and whether the possessor consulted accessible agencies or took any other step that

a reasonable person would have taken in the circumstances.50

Under the PMCH Act, an object may be liable for return if it is considered to be a

protected object of a foreign country; and was exported in contravention of that country’s

cultural property law; and was imported into Australia after 1987 (when the PMCH Act came

into force). The Australian museum requires the museum to confirm with principles of

provenance and due diligence before accepting any artefact. The concept of provenance was

evolved in furtherance of pacta sunt servanda51, which means that every treaty in force is

binding upon the parties to it and must be performed in good faith.52

In this case, the object was a protected object of Nepal. Its export was not in accordance

with Nepal’s cultural property law and was hence illegal. Australian museum has violated its

obligation against illicit import by allowing an unlawfully exported object into its

47 The PMCHA was made in consonance with the UNESCO Convention. 48 Article 4(4), UNESCO Convention lays out the conditions for due diligence. 49 Derek Fincham, How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property. 50 Article 4(4), UNESCO Convention. 51 Elihu Lauterpatch, by An interpretation of Article 2, OECD Draft Convention on the Protection of Foreign Property, 1967. 52 Article 26, Vienna Convention on Law of Treaties, 1969.



territory.53Its import into Australia was completed in March 201454 and hence occurred after

the PMCHA came into force. The museum failed to exercise provenance and due diligence

before accepting the statue. Provenance includes the full history and chain of ownership of an

object from the time of its discovery or creation to the present day, through which

authenticity and legal title are determined.55 In the event of absence of information or data

required to determine provenance, due diligence must be applied. Due diligence requires

undertaking of every possible attempt verify the accuracy of information regarding the source

of the cultural material.56

Based on the above analysis, it is humbly submitted that the Australian National

Museum was negligent in its duties while accepting the idol from Dr. Smith. Further, the

Australian government can be held responsible for the actions of the National Museum as

The National Museum of Australia is an Australian Government Agency.57

5. THE GOVERNMENT OF NEPAL HAS A RIGHTFUL CLAIM OVER THE PROPERTY;

THEREFORE IT MUST BE REPATRIATED BACK TO NEPAL.

5.1. THE STATUE MUST BE REPATRIATED TO NEPAL.

The very term "repatriation" is political; it assumes that cultural objects have a patria, a

national character and a national homeland. Each nation makes a special claim to cultural

objects associated with its people or territory-to its "national cultural patrimony.”58

Firstly, Article 13(a) of the UNESCO Convention prohibits the transfer of ownership

promoting illicit import and export of cultural property. Article 13(b) provides for restitution

53 Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990). 54 3rd clarification. 55 No 5, Australian Best Practice Guide To Cultural Material, 11. 56 Id. 57 ABN 70 592 297 967, seen at http://www.nma.gov.au/about_us. 58 John Henry Merryman, Public Interest in Cultural Property, California Law Review, March 1989.



of such property. Article 559 talks about the Conduct of persons or entities exercising

elements of governmental authority. It says, that the conduct of a person or entity which is

not an organ of the State under Article 4 but which is empowered by the law of that State to

exercise elements of the governmental authority shall be considered an act of the State under

international law, provided the person or entity is acting in that capacity in the particular

instance. The state responsibility principles60 enable states to demand repartition of cultural

property on account of ownership and title over the property. When the state owns property,

there must be no impediment to recovery.61 Also, such repatriation will not only help in

curbing illicit trade in antiques by renowned archaeologists, but also help in ensuring more

scrutiny of the acceptance of art.62

In the present case, the Dean of Tribhuvan University did not have ownership of the

idol, it was simply put on display in the university premises.63 By giving it as a gift to Dr.

Smith, he essentially transferred the ownership in contravention to the UNESCO Convention

which ultimately led to an illicit export of the statue from Nepal. Additionally, Article 13(b)

provides for restitution of property hence exported out of a country. Since the Dean was not

in a position to transfer ownership of the statue to Dr. Smith, the title still lays with Nepal,

which, relying on the state responsibility principles can, claim repartition of the property.

59 ILC Articles on Responsibility of States for Internationally Wrongful Acts, 2001. 60 Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 2001, vol. II (Part Two). Text reproduced as it appears in the Annex to General Assembly Resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4. 61 See King of Italy v. de Medici, (1918) 34 TLR 623. 62 Republic of Iran v. Barakat Galleries, [2007] EWCA Civ 1374. 63 Clarifications.



5.2. THE IMPORT WAS ALSO ILLEGAL64 AND THE STATUE IS ELIGIBLE FOR FORFEITURE AS

PER AUSTRALIAN LAWS65.

Mr. Smith is guilty of an offense punishable in law. According to the PMCH Act,

Section 14 (1), where a protected object of a foreign country has been exported from that

country; the export was prohibited by a law of that country relating to cultural property; and

the object is imported, the object is liable to forfeiture.66

In the present case, the object was a protected object,67 it has been exported from

Nepal68 the export was prohibited69, and the object is imported and brought into Australia.70

Therefore, the object i.e. the statue is liable to forfeiture by the Australian authorities.

Section 14 (2) of the PMCH Act provides for the quantum of punishment for a Natural person

if he indulges in such illegal export.71 The provision declares that if a person imports an

object knowing that the object is a protected object of a foreign country that has been

exported from that country; and the export was prohibited by the law of that country relating

to cultural property; the person is guilty of an offence punishable, on conviction, by a fine not

exceeding $10,000 or imprisonment for a period not exceeding 5 years, or both, if he is a

natural person.

In the instant case, Mr. Smith is a natural person72. He conducted an export, prohibited

by Nepalese Law, of a protected object of Nepal.

When a state commits and internationally wrongful act against another state,

international responsibility is established immediately as between the two states.73 Therefore,

64 “Arguments For and Against the Return of the Elgin Marbles.” Elginism. Web. Retrieved from http://www.elginism.com/elgin-marbles/arguments-for-against-the-return-of-the-elgin-marbles/20090214/1733/ 65 Protection of Movable Cultural Heritage Act, 1986. 66 Section 14, Protection of Movable Cultural Heritage Act, 1986. 67 Article 1, UNESCO Convention. 68 Facts. 69 As proved above, Issue 3.2. 70 Facts. 71 Section, 14 PMCH Act, 1986. 72 A human being naturally born, see also, <a href="http://thelawdictionary.org/natural-person/" title="NATURAL PERSON">NATURAL PERSON</a>.



it is humbly submitted that the import of the statue in Australia be declared illegal and Mr.

Smith be fined and imprisoned as per the relevant provisions.

6. ARTICLE 5 OF THE UNIDROIT CONVENTION ENABLES A STATE TO REQUEST ANY

COMPETENT AUTHORITY TO ORDER THE RETURN OF A CULTURAL OBJECT ILLEGALLY

EXPORTED FROM THE TERRITORY OF THE REQUESTING STATE.

The common law offers no satisfactory solutions, and the existing Convention texts

either do not cover, or do so only in part, the private law aspects of cultural property

protection (one of the chief obstacles to the international recognition by some States of rules

in this area being the protection of the good faith buyer). UNESCO therefore asked

UNIDROIT to draft a new instrument that would take its cue from the 1970 UNESCO

Convention but would also incorporate 25 years of reflection on the subject of illicit

trafficking (following an upsurge of this threat worldwide, States were just beginning to re-

thing their positions on this subject and becoming more willing to co-operate in this field). 74

Going by the above argument, it is humbly submitted that the UNIDROIT Convention

has simply collected and formally written down the customs with regard to cultural property

in the international scenario, it has not created any new custom or law. Hence, even though

Nepal and Australia are not signatories to the UNIDROIT Convention, its provisions will be

applicable in this case by virtue of being custom. In this case, the property has been illicitly

exported from Nepal. In an attempt to recover this statue, Nepal has approached Kuala

Lumpur Centre for Regional Arbitration.

As submitted above, the provisions regarding repartition of cultural property provided

under the UNIDROIT Convention are exemplary of customary international law with regard

to such illicit export. Therefore, we apply Article 5 of the convention to claim return of the

73 Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28. 74 Overview - UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995), Last Updated: 09 June 2014, available at http://www.unidroit.org/overviecp/english.



property. Article 5(4) requires conditions laid down in Article 5, sub-clause (1) and (3) to be

fulfilled and to have information of factual or legal nature. According to Article 5(1) enables

the request to a competent authority for return of the property. Sub-clause (3) states the

impairment of interest of the state which would make it eligible to claim return of the

property via a competent authority. Article 5(3)(a) provides for a criterion for the physical

preservation of the object, which has been breached in this case. There also exist factual or

legal information in this regard.75

Sub- clause 5 of Article 5 puts a limitation on time-period within which such request

can be made. This limitation has not been exceeded in the present case as the demand for

return has been made within three years from the time when the requesting state knew the

location of the cultural object and the identity of its possessor.

Hence, it is humbly submitted, on the basis of all the previous submissions, namely,

illicit export of the statue by Dr. Smith, wrongful acceptance of the same by the Australian

museum, invalid loan of the same to Malaysian Museum by Australian Museum and the

applicability of relevant provisions of the UNIDROIT Convention, UNESCO Convention,

Nepalese Laws, Australian Laws, that Nepal has the right to claim repartition of the statue.

75 Facts and clarifications.

A1508-C PLAYER FOR RELIEF 15


PRAYER FOR RELIEF

In the light of the arguments advanced and authorities cited, the Respondent humbly submits

that this Tribunal may be pleased to find and declare, in favour of the Respondents;

Australian National Museum, the National Museum (Malaysia), and Dr. John Thomas Smith,

Jr., the following:

1. The procedural law of this Arbitration Tribunal is the Law of Malaysia.

2. The substantive law governing the dispute is the Law of Australia.

3. The export of the statue from Nepal to Australia was illicit.

4. The donation of the statute by Dr. John Thomas Smith, Jr. to the Australian National

Museum was invalid; hence there was no transfer of title to the museum.

5. The loan of the statue to the National Museum (Malaysia) is also invalid, hence the

museum do not have the rightful possession of the statue.

6. The Statue must be repatriated to the Government of Nepal.

Respectfully Submitted,

Counsel for the Claimant.

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