도난 예술품의 국제적 거래에 있어 준거법의 선택- 뉴욕주의 국제사법을 중심으로 -

The fact of Bakalar v. Vavra presented a scenario in Holocaust-era art cases. A good faith purchaser, who thought he had bought clear title, went to sell the drawing at auction in New York and found himself confronted by the claims of alleged heirs, who asserted that the painting was taken from their ancestor by the Nazis. Typical of art cases, the drawing had passed through a number of jurisdictions before arriving in New York, and the court in Bakalar faced the difficult question of what jurisdiction's laws to apply to determine which of the parties had title to the drawing. This paper examines the particular importance of choosing the law to apply in disputes between good faith purchasers of artworks and the artworks' original owners, or their heirs. Also the possessory rights of good faith purchasers are never recognized under the property law of the United States, while the laws of continental Europe, in contrast, protect innocent purchasers and allow them to acquire legitimate title to the stolen goods. This paper reviews the evolution of the analysis for choice of law in New York particularly. The law in New York appeared to be a combination of an interest analysis centered by public policy and traditional lex situs approach, which focused on the location where a particular transaction took place. The Second Circuit misconstrued prior New York case law in its application of the interest analysis without regard to the lex situs. The Second Circuit's approach created uncertainty and unpredictability in New York choice of law rules, and New York need to clarify choice of law rule for property conflicts. Knowing and understanding the principle of choice of law in New York, we become aware of how to react to these legal issues in an replevin action against foreign purchasers.