A1502-C THE 10 TH LAWASIA INTERNATIONAL MOOT IN THE KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION KUALA LUMPUR, MALAYSIA 2015 BETWEEN THE NEPALESE GOVERNMENT (CLAIMANT) AND THE AUSTRALIAN NATIONAL MUSEUM THE NATIONAL MUSEUM (MALAYSIA) DR. JOHN THOMAS SMITH, JR (RESPONDENTS) MEMORIAL FOR CLAIMANT
TABLE OF CONTENTS QUESTIONS PRESENTED... iii INDEX OF AUTHORITIES... iv STATEMENT OF JURISDICTION... 1 STATEMENT OF FACTS... 2 SUMMARY OF PLEADINGS... 5 CLAIMANT S PLEADINGS... 6 A. NEPALESE LAW ESTABLISH CLAIMANT S RIGHT TO DEMAND THE RETURN OF THE STATUE... 6 B. IF THERE IS A CONFLICT, NEPALESE LAW SHOULD BE APPLIED TO THIS DISPUTE... 7 I. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE KLRCA I- ARBITRATION RULES... 7 1. Nepalese law is the appropriate law under the closest connection test... 8 2. Alternatively, Nepalese law is the appropriate law through the cumulative application of conflict of laws rules... 8 II. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE LAW OF THE ARBITRAL SEAT... 10 1. Malaysia is the seat of arbitration, and Nepalese law applies under the Malaysian Arbitration Act... 11 2. Alternatively, a seat in Nepal is more appropriate and Nepalese law applies under the Arbitrational Act of Nepal... 12 C. UNDER NEPALESE LAW, THE STATUE SHOULD BE RETURNED TO CLAIMANT... 14 I. RESPONDENTS HAVE NO RIGHT TO RETAIN THE STATUE UNDER NEPALESE LAW... 14 1. The Statue is subject to confiscation by Claimant under AMPA... 14 a. The Statue is an archeological object for the purpose of AMPA... 15 b. The export of the Statue contravened s. 13(1) AMPA... 15 2. The fact that the Statue is not a registered protected object has no relevance 16 i
II. CLAIMANT HAS THE RIGHT TO DEMAND THE RETURN OF THE STATUE UNDER NEPALESE LAW... 17 1. Claimant is the rightful owner of the Statue... 17 a. Claimant has acquired ownership of the Statue... 17 b. There was no transfer of ownership in the Statue to Third Respondent by the Dean... 18 2. Respondents have deprived Claimant the possession of the Statue... 19 3. The deprivation of possession was with bad faith... 20 4. The possession of the Statue amounts to theft under Nepalese law... 21 D. FAILURE TO COMPLY WITH NEPALESE LAW WOULD RENDER AN IMMEDIATE RETURN OF THE STATUE TO CLAIMANT... 22 PRAYER OF RELIEF... 23 ii
QUESTIONS PRESENTED A. What laws or legal principles establish Nepal s (a) right to demand the return of the statue and/or (b) the National Museum s right to retain it? B. If there is a conflict between them, which law and/or Convention should be applied to this dispute? C. To what extent, if any, would the final outcome of this dispute (i.e. which party prevails) be affected by the determination as to which law should be applied? D. What is the effect on this dispute of the failure to comply with Nepalese law? iii
INDEX OF AUTHORITIES Statutes and Treaties Ancient Monument Preservation Act (2013) of Nepal Arbitration Act of Nepal Arbitration Rules of the Kuala Lumpur Regional Centre for Arbitration (KLRCA), 2013 New York Convention on the Recognition and Enforcement of 21 Foreign Arbitral Awards, 1958 Rome Convention on the Law Application to Contractual Obligations, 1980 The General Code of Nepal Australia Cases Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 UK Cases Attorney-General of New Zealand v Ortiz [1984] AC1 Cammell v Sewell [1858] 157 ER 615 Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc. [2001] 1 LLR 65 iv
Scholarly Work and Articles Australian Museum, About The Museum <http://australianmuseum.net.au/> Born, Gary, International Commercial Arbitration, (Kluwer Law International 2014) Davies, M./Bell, A./Brereton, P., Nygh s Conflict of Laws in Australia, (LexisNexis Butterworths 2014) Department of Museums Malaysia, The National Museum <http://www.muziumnegara.gov.my/main?c=muzium_negara_16& parent=mengenai_kami_2> Greenberg, Simon /Kee, Christopher /Weeramantry, J. Romesh, International Commercial Arbitration: An Aisa-Pacific Perspective, (Cambridge University Press 2011) Hickling, R.H./Wu Min Aun, Conflict of Laws in Malaysia, (Singapore: Butterworths Asia 1995) Mac Lean/Margaret, G. H., ed., Cultural Heritage in Asia and the Pacific: Conservation and Policy, (Oxford University Press 1993) Notarius International, World Map: Conflict of Laws in Successions, <http://212.63.69.85/database/2005/notarius_2005_03_last.pdf> Rajoo, Sundra/Davidson, W. S. W., Dato, The Arbitration Act 2005: UNCITRAL Model Law as Applied in Malaysia, (Sweet & Maxwell Asia 2007) Regmi, Srijana, Grey Area, myrepublica, 27 Jan 2014, 17 Sep, 2015 <http://www.myrepublica.com/portal/index.php?action=news_detail s&news_id=68638> Tribhuvan University, About Us <http://tribhuvan-university.edu.np/about-us> v
Tribhuvan University, Faculty of Humanities and Social Sciences < http://tribhuvan-university.edu.np/faculties/faculty-of-humanitiesand-social-sciences/> vi
STATEMENT OF JURISDICTION The Nepalese Government ( Claimant ) and the Australian National Museum, National Museum (Malaysia) and Dr. John Thomas Smith Jr ( Respondents ) have agreed to submit this dispute to binding arbitration pursuant to Rule 1(1) of the Kuala Lumpur Regional Centre for Arbitration ( KLRCA ) Rules before the KLRCA. This dispute does not include the challenges on the propriety and validity of the arbitration agreement between the Parties. 1
STATEMENT OF FACTS 1. The Government of Nepal ( Claimant ) is the executive body of the Federal Democratic Republic of Nepal. 2. Tribhuvan University ( the University ) is a Nepalese public university funded by Claimant. 1 3. Australian National Museum ( First Respondent ) is a state-owned museum in Sydney, Australia. 2 4. National Museum (Malaysia) ( Second Respondent ) is a state-owned museum in Kuala Lumpur, Malaysia. 3 5. Dr. John Thomas Smith Jr ( Third Respondent ) is an Australian anthropologist who is known to have discovered many antiques in the Asia-Pacific region. He has a history of taking local antiques back to his home country of Australia. 4 There are also unconfirmed reports of him selling such local antiques to private collectors at high prices. 5 6. First Respondent, Second Respondent and Third Respondent are collectively referred to as the Respondents. 1 Tribhuvan University, About Us, 16 Sep, 2015 <http://tribhuvan-university.edu.np/about-us/> 2 Australian Museum, About The Museum, 16 Sep, 2015 <http://australianmuseum.net.au/> 3 Department of Museums Malaysia, The National Museum, 16 Sep, 2015 <http://www.muziumnegara.gov.my/main?c=muzium_negara_16&parent=mengenai_kami_2> 4 Page 1, Moot Problem 5 Footnote 2, Page 1, Moot Problem 2
7. In 2010, the stone statue of Lord Vishnu ( the Statue ) was discovered in Nepal. It is at least 300 years old. 6 Claimant believes it has always belonged to the People of Nepal. 7 After its discovery, the Statue was displayed prominently in the National Museum of Nepal and later the University campus. 8 8. In 2014, Third Respondent was invited to present lectures at the University by the University s Dean of the Central Department of Sociology/Anthropology ( the Dean ). Having received no remuneration for his services, Third Respondent was presented with the statue from the Dean. The Dean indicated that it was an appropriate gift. 9 9. On March 2014, Third Respondent returned to Australia with the Statue. He claims to have thought that it was an excellent replica. 10 Nevertheless, he donated the Statue to First Respondent. A staff member of First Respondent examined the Statue, confirmed that it was authentic and displayed it as such. 11 It was on display there from April 2014 to July 2014. 10. On July 2014, First Respondent loaned the Statue to Second Respondent. An expert with Second Respondent also examined the Statue to confirm that it is authentic, and 6 Footnote 3, Page 2, Moot Problem 7 B5, B6, Page 3, Clarifications 8 B1, B4, Page 2, Clarifications 9 B2, Page 2, Clarifications 10 Footnote 4, Page 2, Moot Problem 11 B9, Page 3, Clarifications 3
displayed it as such. 12 The Statue is currently still on display with Second Respondent. 11. Since realising the statue has been illegally exported from Nepal, Claimant has demanded for the return of the object. The Respondents, however, have refused such request. 12. The Parties have agreed to submit the dispute to arbitration under the auspices of the KLRCA. 12 B9, Page 3, Clarifications 4
SUMMARY OF PLEADINGS 13. Nepalese law is the substantive law governing the dispute. Under the KLRCA i- Arbitration Rules, Nepalese law is the appropriate law. Nepal is the jurisdiction with the closest connection to the dispute, and the cumulative application of conflict of laws rules converge upon Nepalese law. Nepalese law is also applicable under the law of the arbitral seat, regardless of whether the arbitral seat is in Kuala Lumpur, Malaysia or Nepal. 14. The Statue should be returned to its rightful owner, Claimant. The Statue is subject to confiscation by Claimant due to the contravention of Nepalese cultural property law. Claimant has the right to demand the return of the Statue because it is the rightful owner, and Respondents do not have ownership in the Statue. Respondents refusal to return the Statue amounts to theft and thus they should return the Statue to Claimant. 5
CLAIMANT S PLEADINGS A. NEPALESE LAW ESTABLISH CLAIMANT S RIGHT TO DEMAND THE RETURN OF THE STATUE 15. Claimant has a right to demand the return of the Statue under Nepalese law. 13 Respondents do not have a right to retain the Statue under Nepalese law. 14 13 infra 28-35 14 infra 36-51 6
B. IF THERE IS A CONFLICT, NEPALESE LAW SHOULD BE APPLIED TO THIS DISPUTE 16. If there is a conflict between Nepalese law and Australian law, the Tribunal should apply Nepalese law to the merits of the Parties dispute. In the absence of a choice of applicable law as agreed by the parties to the substance of the dispute, the Tribunal can determine the applicable substantive law by applying the choice-of-law formula contained either in the institutional rules or in the law of the arbitral seat. 15 The Parties have chosen the KLRCA i-arbitration Rules ( KLRCA Rules ) as the institutional rules of the arbitration, but have not expressly agreed on the seat of arbitration. 16 Nepalese law is the applicable law to the dispute under both the KLRCA i-arbitration Rules [I] and the law of all the potential arbitral seats [II]. I. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE KLRCA I- ARBITRATION RULES 17. Nepalese law is the applicable substantive law under the KLRCA Rules. Under Art. 35(1) KLRCA Rules, in the absence of a choice of law as applicable to the substance of the dispute, the Tribunal should apply the law which it determines to be appropriate. This does not warrant a direct application of any substantive law at whim, but rather should involve a form of analysis logically based on general conflict of laws considerations. 17 One of the most widely recognised conflict of laws principles is to apply the substantive law of the State with the closest connection to 15 Born, page 2636-2637 16 Page 3, Moot Problem; C2, Page 4, Clarifications 17 Born page 2644-2646; Greenberg/Kee/Weeramantry, page 103 7
the dispute. 18 Alternatively, in determining which law is appropriate, the Tribunal should cumulatively apply the domestic conflict of laws rules connected to the dispute, as this method is regarded as the most rigorous and acceptable approach to arrive at a suitable substantive law. 19 By virtue of the closest connection test, the Tribunal should reach a conclusion that Nepalese law to be appropriate [1]. Alternatively, Nepalese law is appropriate through the cumulative application of conflict of law rules [2]. 1. Nepalese law is the appropriate law under the closest connection test 18. Nepalese law is the appropriate law to the substance of the dispute under the closest connection test. Nepal has the closest connection to the dispute. Regarding the dispute at hand, the crux lies in whether the gift transfer of the Statue to Third Respondent was valid, which occurred in Nepal. 20 Therefore, the State with the closest connection to the dispute at hand is Nepal 21, and Nepalese law should be applied. 2. Alternatively, Nepalese law is the appropriate law through the cumulative application of conflict of laws rules 19. Nepalese law is the appropriate law through the cumulative application of all of the relevant conflict of laws rules connected to the dispute. By cumulatively applying the conflict of laws rules of all states with meaningful connection to the Parties dispute, the objective is to see whether they converge and point towards one substantive 18 Born page 2631: numerous countries endorse this approach as their statutory formula (eg. Switzerland, Germany, Japan, Italy, Mexico, Syria etc.); Greenberg/Kee/Weeramantry: this approach is also adopted by international conventions (eg. Rome Convention) 19 Born, page 2648-2649, 2658; Greenberg/Kee/Weeramantry, pages 108, 113 20 Page 1, Moot Problem 21 infra 26 8
law. 22 This approach is regarded as befitting the transnational nature of international arbitration. 23 20. The conflict of laws rules of the connected states converge upon Nepalese law. The states involved in this dispute are Nepal, Australia and Malaysia. Nepal is closely connected to the current dispute 24, and its conflict of laws rules are currently not codified. 25 However, the draft Civil Code of Nepal reveals the conflict of laws rule regarding the validity of gift, which is to apply the law of the country of citizenship of the donor at the time of gift 26. The Dean, who gave Third Respondent the Statue as a gift, is a Nepalese 27. Therefore, Nepal s conflict of laws rule points towards Nepalese law. 21. Australia and Malaysia are connected to the dispute not only as the countries of origin of the Respondents, namely Dr. Smith and the Australian National Museum, as well as the National Museum (Malaysia) respectively. 28 Malaysia s connection also stems from the fact that the Statue is currently located in Malaysia, being in the National Museum (Malaysia) s possession. 29 That is due to a loan agreement with the Australian National Museum, to whom the Statue was donated by Third 22 Born page 2648-2650; Greenberg/Kee/Weeramantry, page 112 23 ibid 24 supra 18; infra 26 25 Regmi; Notarius International 26 The Civil Code of Nepal (draft), s.741 27 Tribhuvan University, Faculty of Humanities and Social Sciences, 17 Sep, 2015 < http://tribhuvanuniversity.edu.np/faculties/faculty-of-humanities-and-social-sciences/> 28 Page 2, Moot Problem 29 ibid 9
Respondent 30, further implicating Australia. The conflict of laws rules in Australia and Malaysia regarding movable property are identical, that is to apply the lex situs, the law of the jurisdiction where the property is located at the time of the transfer. 31 The lex situs is Nepalese law 32, thus the cumulative application of the conflict of laws rules of Nepal, Australia and Malaysia all converge upon Nepalese law as the substantive law of the dispute. II. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE LAW OF THE ARBITRAL SEAT 22. The law of the arbitral seat (lex arbitri) also leads to the conclusion that Nepalese law is the applicable substantive law. The determination of which substantive law to apply is a procedural issue covered by the lex arbitri, and requires the consideration of the seat s arbitration legislation. 33 The Parties only agreed that the arbitration would take place in Kuala Lumpur, but not on a seat of arbitration. 34 The seat of arbitration is Kuala Lumpur, Malaysia by default under KLRCA Rules and Nepalese law applies under the Malaysian Arbitration Act [1]. Alternatively, a seat in Nepal is more appropriate and Nepalese law also applies under the Nepalese Arbitration Act [2]. 30 Page 2, Moot Problem; B11, Page 4, Clarifications; B4, Page 2, Further Clarifications 31 infra Footnote 37; Davies/Bell/Brereton, page 754 32 infra 24 33 Born page 1531, 1580, 2636 34 C2, Page 4, Clarifications 10
1. Malaysia is the seat of arbitration, and Nepalese law applies under the Malaysian Arbitration Act 23. Kuala Lumpur, Malaysia is the seat of arbitration by default. Under Rule 6(1) KLRCA Rules, in the absence of any agreement upon a specific arbitral seat, Kuala Lumpur, Malaysia is the arbitral seat by default. Since the Parties have not expressly agreed on the seat of arbitration 35, Malaysia is arbitral seat by default. Accordingly, the Malaysian Arbitration Act is the law of the arbitral seat. 24. Nepalese law applies under the Malaysian Arbitration Act. Under s. 30(4) Malaysia Arbitration Act, the Tribunal should apply the law determined by the conflict of laws rules failing any agreement of the law applicable to the substance of the dispute. By using the word the before conflict of laws rules, s. 30(4) refers to the Malaysian conflict of laws rules. 36 Under the Malaysian conflict of laws rules, the validity of a transfer of movable property is governed by the doctrine of lex situs, the law of the place where the property is at the time of its transfer. 37 The Statue was situated in Nepal when it was transferred by the Dean to Third Respondent. 38 As Nepalese law is the lex situs, it shall applied to decide the merits of the dispute. 35 C2, Page 4, Clarifications 36 Greenberg/Kee/Weeramantry, page 104 37 Cammell v. Sewell; Hickling/Wu, page 195 38 Page 1, Moot Problem 11
25. An alternative interpretation of s. 30(4) Malaysia Arbitration Act is that the Tribunal should apply the substantive law of the jurisdiction with the closest connection to the dispute. 39 The state with the closest connection is Nepal 40, thus Nepalese law applies. 2. Alternatively, a seat in Nepal is more appropriate and Nepalese law applies under the Arbitrational Act of Nepal 26. Alternatively, Nepal shall be the arbitral seat for this dispute. Under Rule 6(1) KLRCA Rules, the Tribunal may select another arbitral seat if it finds another seat to be more appropriate. In determining whether there is a more appropriate seat than the default seat of Kuala Lumpur, Malaysia, the Tribunal should have regard to all the circumstances of the case. 41 That is to consider if there are any connections of particular jurisdictions with the parties and the parties dispute. 42 The current dispute revolves around the ownership of the Statue and whether Third Respondent has acquired a valid title. The Statue was first discovered in Nepal. 43 The ownership of the Statue was vested in Claimant before Third Respondent received the Statue. 44 Third Respondent came into possession of the Statue in Nepal. 45 The jurisdiction of Nepal therefore has the closest connection with the dispute. Therefore, if the Tribunal is to depart from the default seat, the Tribunal should regard Nepal as the more 39 Rajoo/Davids, page 136 40 supra 18; infra 26 41 KLRCA i-arbitration Rules, Rule 6(1). 42 Born, page 2097; Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc. 43 C6, Page 3, Further Clarifications 44 infra 37-42 45 Page 1, Moot Problem 12
appropriate seat of arbitration. Accordingly, the Arbitration Act of Nepal is the law of the arbitral seat. 27. Nepalese law applies under the Arbitration Act of Nepal. Under No. 18(1), Ch. 1 the Arbitration Act of Nepal, in the absence of an agreed choice-of-law applicable to the substance of the dispute, the substantive law of the dispute shall be Nepalese law. Therefore, under the Arbitration Act of Nepal, Nepalese law is the applicable law to the dispute. 13
C. UNDER NEPALESE LAW, THE STATUE SHOULD BE RETURNED TO CLAIMANT 28. The final outcome of this dispute will be affected by the determination as to which law should be applied. The Statue should be returned to Claimant. It is because under Nepalese law, Respondents have no right to retain the Statue [I] and Claimant has right to demand the return of the Statue [II]. I. RESPONDENTS HAVE NO RIGHT TO RETAIN THE STATUE UNDER NEPALESE LAW 29. Respondents do not have the right to retain under Statue under Nepalese law. Respondents have no basis for arguing the retention of the Statue as it is subject to confiscation by Claimant under the Ancient Monuments Preservation Act of Nepal ( AMPA ) [1]. The fact that the Statue is not a registered protected object has no relevance [2]. 1. The Statue is subject to confiscation by Claimant under AMPA 30. The Statue is subject to confiscation under AMPA. Under s. 13(1) and s. 13(5) AMPA, an archaeological object shall be confiscated 46 by Claimant if it is exported from Nepal without the prior approval 47 of Claimant. Archaeological object is defined under s. 2(b) AMPA. The Statue is subject to confiscation by Claimant under AMPA because the Statue is an archeological object for the purpose of AMPA [a] and the export of the Statue was a contravention of s. 13(1) AMPA [b]. 46 s.13(5), AMPA 47 s.13(1), AMPA 14
a. The Statue is an archeological object for the purpose of AMPA 31. The Statue is an archaeological object under s. 2(b) AMPA. Under s. 2(b) AMPA, an archaeological object means an object made and used by human being scribed or inscribed idol and any movable or immovable objects, which depict the history of any country. The object is a stone statue of Lord Vishnu seated between goddesses Lakshmi and Garuda. 48 It is at least 300 years old and was discovered in 2010. 49 The Statue is of Hindu deities and is therefore of religious importance to Nepal, making it an idol, or at least a movable object that depicts the history of Nepal. Therefore, the object falls within the definition of an archaeological object under s. 2(b) AMPA. b. The export of the Statue contravened s. 13(1) AMPA 32. The export of the Statue was a clear contravention of s. 13(1) AMPA. According to s. 13(1) AMPA, prior approval from Claimant must be attained in order to export archaeological objects lawfully. Respondents failed to request such approval from Claimant. Certification for the export of the Statue was neither sought nor issued. 50 The export of the Statue was a contravention of s. 13(1) AMPA, and thus it was an illicit export. 33. Under s. 13(5) AMPA, violation of s. 13(1) AMPA would result in punishment to the violator and confiscation of the cultural property. The Statue was exported in 48 Page 1, Moot Problem 49 H3, Page 5, Third Clarifications 50 Page 2, Moot Problem 15
violation of s. 13(1) AMPA, and so, it is subject to confiscation by Claimant. Thus, Respondents have no right to retain the Statue. 34. The scope of these proceedings only deals with issues regarding the ownership or custody of the Statue. 51 The statutory punishment is irrelevant to the purposes of Claimant s current submissions. 2. The fact that the Statue is not a registered protected object has no relevance 35. The fact that the Statue was not formally registered with any regulating bodies of Nepal 52 is irrelevant to Claimant s case. For the purpose of identification, most countries establish a register of cultural property only to regulate and track their movements 53, in case the cultural property is stolen. It is not required for the cultural property to be registered for it to be protected by the export regulations under the AMPA. Claimant has been aware of the existence of the Statue since its discovery in 2010. 54 For this reason, the Statue has never been registered with the regulating bodies in Nepal. 55 The protection of the Statue as a cultural property of Nepal is guaranteed by AMPA. Its lack of registration is not a reason to refuse recognition of the Statue as a protected object of Nepal. Therefore, the Statue is still subject to confiscation by Claimant and Respondents do not have the right to retain under Statue under Nepalese law. 51 Page 2, Moot Problem 52 Page 2, Further Clarifications M Mac Lean, page 34 54 C6, Page 3, Further Clarifications 55 B5, Page 2, Further Clarifications 16
II. CLAIMANT HAS THE RIGHT TO DEMAND THE RETURN OF THE STATUE UNDER NEPALESE LAW 36. Claimant has the right to demand the return of the Statue under No. 25, Ch. 4, General Code. The section gives rise to a cause of action under theft for Claimant to recover the Statue. Claimant is the rightful owner of the Statue [1]. Respondents have deprived Claimant the possession of the object [2] with mala fide intentions (bad faith) [3]. Claimant is therefore entitled to the object and the right to demand recovery [4]. 1. Claimant is the rightful owner of the Statue 37. Claimant has acquired the ownership of the Statue through Nepalese law [a]. There was no transfer of title from the Dean to Third Respondent [b]. a. Claimant has acquired ownership of the Statue 38. Claimant acquired ownership of the Statue under AMPA. The Statue was discovered within Nepal s geographical borders, and duly turned over by its finders, the sheepherders, to local government officials. 56 According to s. 17A(1) AMPA, all archaeological objects found anywhere [in Nepal] are under the custody of the Department of Archaeology. By law, the Statue belongs to Claimant as it was found in Nepal. Furthermore, the sheepherders gave up their private custody of the Statue when they handed it over to local government officials. This transfer placed the Statue in Claimant s public ownership. As such, the proper ownership of the Statue lies with Claimant. 56 C6, Page 3, Further Clarifications 17
39. Even though the registration element in s. 2(b) AMPA has not been satisfied, the Statue can still no longer be privately owned. According to No. 1, Ch. 19, General Code, the sheepherders action of turning over the Statue to local government officials amounted to a gift. Under No. 5, Ch. 19, General Code, the donor of a gift loses the right to sue upon his rights in the property gifted after 2 years. The sheepherders donated the Statue to the local government officials in 2010. 57 The sheepherders lost their right to bring a suit in relation to the Statue in 2012. Therefore, the sheepherders cannot allege that the Statue is still under private ownership. 40. Even after the Statue was handed over to the University, it was merely on display in the University, and the University understood that the Statue would be returned to Claimant s Museum should the request ever be made. 58 The University and the Dean did not have full control over the Statue, and thus the Statue s ownership was never transferred to the University or the Dean. To this day, the Statue still legally belongs to Claimant. b. There was no transfer of ownership in the Statue to Third Respondent by the Dean 41. Under No. 1, Ch. 19, General Code, a person shall not donate or gift any property without the consent of others who have a right in that property. Doing so would be in violation of the General Code, and there would be no legitimate transfer of ownership. 57 H3, Page 5, Third Clarifications 58 A1, Page 1, Further Clarifications 18
42. As established above, Claimant has a right of ownership in the Statue. 59 As such, the Dean could not gift the Statue to others without the consent of Claimant. The Dean has no authority to give away an object belonging to a third party. 60 Even though the Dean claimed that the Statue was an appropriate gift 61, the Dean could not have transferred any ownership rights to Third Respondent. Third Respondent never acquired any rights to the Statue, and has no right to transfer the Statue to anyone else. His subsequent donation of the Statue is invalid, and so is the Loan Agreement between First Respondent and Second Respondent. Thus, none of the Respondents can have the right to retain the Statue. 2. Respondents have deprived Claimant the possession of the Statue 43. Third Respondent received the Statue from the Dean during the dinner held in his honour for presenting lectures at the University. 62 Third Respondent took possession of the Statue and returned to Australia in March 2014 63 without Claimant s permission. 64 Third Respondent invalidly donated the Statue to First Respondent 65 where it was displayed from April to July 2014. 66 The Statue was then subsequently loaned to Second Respondent in July 2014 and it has been displayed there since. 67 59 supra 37-40 60 B6, Page 2, Further Clarifications 61 B2, Page 2, Clarifications 62 Page 1, Moot Problem 63 H3, Page 5, Third Clarifications 64 supra 32-35 65 Page 2, Moot Problem 66 H3, Page 5, Third Clarifications 67 H3, Page 5, Third Clarifications 19
44. The donation from Third Respondent to First Respondent and the subsequent loan agreement between First Respondent and Second Respondent clearly demonstrates a deprivation of Claimant s right to possession by the Respondents. First and Second Respondents further decided to use the Statue as a display item, treating the Statue as their own. 68 Respondents clearly gave no regard to Claimant s property rights in the Statue and dealt with it as if it were their own. 45. Furthermore, First and Second Respondents refused to answer Claimant s requests for the return of the Statue. 69 Instead, they are choosing to contest Claimant s legal rights in an arbitration. 70 It is clear that the Respondents have an intention to deny Claimant s rights over the Statue. 3. The deprivation of possession was with bad faith 46. When First Respondent received the Statue, Third Respondent informed the Museum Director of First Respondent that the Statue was from Nepal and that it was given to him by a high-ranking Nepalese government official. 71 Despite so, when First and Second Respondent received the Statue, neither took the effort to do its due diligence. Neither party sought any official documentation for the Statue. 72 If they had, it was likely that they would have realised the export prohibition applied to the 68 B9, Page 3, Clarifications; B3, Page 2, Further Clarifications 69 Page 2, Problem 70 Page 2,3, Moot Problem 71 E3, Page 3, Third Clarifications 72 C4, Page 3, Further Clarifications 20
Statue. 73 Likewise, Third Respondent was capable of verifying the authenticity of the object 74, but he too decided to take no action. This is strong evidence of bad faith. 47. Furthermore, First and Second Respondents are aware that the Statue is authentic. 75 Despite so, they still refused to answer Claimant s requests for the return of the Statue. 76 It is clear that their choice to retain the Statue is made under bad faith. 4. The possession of the Statue amounts to theft under Nepalese law 48. Under No. 25, Ch. 4, General Code, if an object is stolen property, the legal owner of the object shall be entitled to it, and can recover it regardless of the destination the property has reached. As the elements of theft under No. 1, Ch. 4, General Code have been met, the Statue is a stolen property under the General Code. Claimant therefore has the right to demand the return of the Statue under Nepalese law. 73 C3, Page 3, Further Clarifications 74 E12, Page 4, Third Clarifications 75 B9, Page 3, Clarifications 76 Page 2, Problem 21
D. FAILURE TO COMPLY WITH NEPALESE LAW WOULD RENDER AN IMMEDIATE RETURN OF THE STATUE TO CLAIMANT 49. Under s. 13(5) AMPA, Respondents failure to request Claimant s approval for the export of the Statue gives Claimant a right to confiscate the Statue. 50. No. 25, Ch. 4, General Code provides a mechanism of recovery. Under No. 25, Ch. 4, General Code, if an item is proved to be stolen property, it shall be recoverable by the owner irrespective of the destination the property as reached. The Statue constitutes stolen property under Nepalese law. 77 Since Respondents had failed to comply with Nepalese law, Respondents should return the Statue to Claimant immediately. 51. Therefore, due to Respondents failure to comply with Nepalese law, the Statue must be immediately returned to Claimant. 77 supra 36 22
PRAYER OF RELIEF Based on the above submissions, Claimant respectfully requests this Tribunal to arbitrate and declare as follows on the Questions Presented: A. Nepalese law and international convention establish Claimant s right to demand the return of the Statue; B. Nepalese law should be applied to this dispute; C. Under Nepalese law, Claimant has a right to demand the return of the statue whilst Respondents have no right to retain. D. Failure to comply with Nepalese law would render an immediate return of the Statue. Counsels on behalf of Claimant 23