The Alternative Dispute Resolution Approach: Formalisation and Juridification of the Dispute Resolution Procedure

Abstract

The seeds of the idea to employ alternative dispute resolution as a way to solve cultural object related disputes can be traced back to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. For example, Article 17 (5) of the 1970 UNESCO Convention provides the possibility for UNESCO to extend, upon request, its good offices to reach a settlement between two state parties which are engaged in a dispute over the implementation of the convention. The 1995 UNIDROIT Convention even contains an arbitration clause. However, it has only been in recent years, when the treaty approach had been complemented by a more cooperative and procedural approach, that alternative dispute resolution entered the limelight and rules of procedure for alternative dispute resolution tailored specifically for cultural object related disputes came into being. Both UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation and ICOM in cooperation with WIPO have adopted rules of procedure for mediation (and conciliation). This chapter assesses the benefits and limitations of alternative dispute resolution as a means to solve cultural heritage related disputes in general before analysing both instruments, the ICPRCP Rules of Procedure for Mediation and Conciliation and the ICOM-WIPO Mediation Rules, in detail and highlighting their linkages with the instruments covered in the previous chapters.