Can Med-Arb/Arb-Med-Arb be used as a process to resolve a claim for the repatriation of ancient art & antiquities to their homeland, whereby Museum Trustees (acting on external legal advice/directions or some sort of ‘blessing’ i.e. from a court of equity & thus in good faith & apparently in accordance with their duties & powers), can agree a process ‘ground-rule’ with the claimant –

‘That any applicable ethical principles of repatriation explored, defined &
agreed during the Mediation phase of the process, may be applied during the subsequent Arbitration phase of the process, in order to make a binding determination about what ethically is the right thing is to do.’

In other words, could Med-Arb/Arb-Med-Arb as a process, result in a legally binding decision which takes into account applicable ‘ethical’ principles of art & cultural property repatriation – by agreement?

Whilst I have not researched the question, I am not aware of a single precedent of where this has been done in the Med-Arb/Arb-Med-Arb of a cultural property repatriation dispute.

If you know of one please cite it as a comment.

My next article, which I have started to research is entitled, ‘Duties & Powers of Museum Trustees in Settling Art Restitution Claims.’

My next book is provisionally entitled, ‘Repatriation Dialogue – Negotiating The Ethical Return To Their Homeland Of Ancient Art & Antiquities.’

I will start work on this book on 1st March 2025.

As I observe in my essay ‘Mediating Cultural Property Disputes’ on the ‘Mediating Cultural Property Disputes’ page at www.carlislam.co.uk:

‘At the epicentre of the restitution dialogue is a struggle between two competing theories under International Cultural Heritage Law.
1.   ‘Cultural nationalism’ – Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin.
2.   ‘Cultural internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention –  ‘the cultural heritage of all mankind.’
Is this tension capable of reconciliation by the determination of a judge sitting in an International Cultural Heritage Court established by either the UN or BRICS?
Unlike a common law ‘domestic’ judge, such an international judge could:
(i) Apply principles of International Cultural Heritage Law.
(ii) Espouse evolutive interpretations of International Law Treaties.
(iii) Consider factors external to the law such as: history; morality; ‘practical ethics’; and peculiar local customs, i.e. after hearing expert academic opinion and evidence.
(iv) Exercise judicial discretion in order to ignore the letter of Treaty law where it proves to be unjust or immoral, thereby creating a new body of international law jurisprudence, i.e. of ‘equitable’ principles based upon: (a) core tenets of ‘natural law’, and ‘distributive justice’; and (b) a ‘re-imagining’ of the core principles of international law evolved centuries ago by western legal philosophers, in order to satisfy the ‘cultural’ needs of what is now a globalised ‘civilization’/’community’ in a modern, post-colonial, and geo-politically ‘multi-polar’ era?
Could such an international court become an incubator and instrument of ‘creative’ co-operation between states, in contrast to being a blunt and ‘politicised’ tool of binary competition for scarce resources between states in the Global North v. states in the Global South?

‘The current legal regime does not always manage to accommodate the diverse and competing interests struggling with each other in the realm of cultural heritage. In addition, while ADR methods are to be preferred, it is rather unlikely that all cultural heritage controversies can be effectively resolved through these mechanisms. Furthermore, litigation appears inadequate, lengthy and costly. Overall, these problems support the case for the establishment of a permanent international court. One can argue that until there is a supranational body empowered to resolve disputes and penalise uncooperative nations, unethical stakeholders and criminals, persuasion or appeals to cooperation will not prevail if it is not in the interests of the stakeholder concerned.’ (‘The Settlement Of International Cultural Heritage Disputes’, by Alessandro Chechi (2014), Oxford University Press, pp. 204 & 205.)