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Message:: [QUOTE="R*L, post: 3155879, member: 96878"]I have to say that I find aspects of the reasoning in the decision hard to follow. I am not an American lawyer, and I haven't read the preceding decsions, so there is a good chance I'm missing some subtleties, but to weigh in from my position of relative ignorance, and with due respect to the Court, it seems to me that it has made some basic errors of interpretation. Although this is a bit dry, to give a bit of context to that, from what I understand (and without going into the detail) the <a href="https://www.law.cornell.edu/uscode/text/19/chapter-14" target="_blank" class="externalLink ProxyLink" data-proxy-href="https://www.law.cornell.edu/uscode/text/19/chapter-14" rel="nofollow">CPIA</a> lets the US Government create lists of certain material by agreement with other signatories to the UNESCO 1970 Convention, which, by virtue of being listed, becomes subject to import restrictions. Of course, it can't do this arbitrarily, and is only empowered to do so in respect of material that meets the definition contained in the Act of “archaeological or ethnological material of the State Party”. That definition requires that the material be a specific “object” (or type of object) “which was first discovered within, and is subject to export control by, the State Party.” Such material, once listed, then becomes “designated archaeological or ethnological material” which is essentially defined to mean “archaeological or ethnological material of the State Party” which has been properly listed or covered by certain other agreements. There is a bit more to those definitions but the above are the points relevant to the discussion below. Ok, with the dry stuff out of the way, we are now ready to discuss the really dry stuff. On my reading of it, what today's decision has effectively held is that so long as a particular object at issue is of the same type as an object or type of object that is designated archaeological or ethnological material, then the import restrictions can be applied without the US Government first having to show that the particular object in question itself meets the definition of being “archaeological or ethnological material of the State Party”, that is, without having to show that the particular object at issue was both discovered within, and is subject to export control by, the State Party. That finding is surprising given the Act only applies to material that is archaeological or ethnological material of the State Party. It should go without saying that just because a particular object is of the same type as an object or type of object that is designated archaeological or ethnological material, that equivalence of type is not in and of itself is sufficient to establish that the particular object in question is itself archaeological or ethnological material of the State Party. This is because it is perfectly feasible that of the set of all objects of a particular type only a certain subset thereof may have been both first discovered within, and … subject to export control by, a particular State Party. This is especially so with respect to ancient coins which, as the Guild seems to have unsuccessfully argued in this litigation, have potentially circulated for hundreds of years without regard to modern borders both in their original use as currency and now as collector's items with the result that where they were found may have little or no relevance to the borders of modern nation-states, let alone there being any reason to assume recent export. It is therefore (I would have thought) quite obviously erroneous to assume that just because a particular object might be the same type as another object which is designated archaeological or ethnological material, that the first object is also designated archaeological or ethnological material, but that is what the Court has done. It’s probably labouring the point, but for example, if three coins of the same type (lets call them Coins A B & C) were minted in Cyprus (and a thousand or so years later coins of that type were properly listed as designated archaeological or ethnological material under the CPIA), but Coin A was found in (say) a horde buried in antiquity in what is now Turkey, Coin B was found in Cyprus but exported from Cyprus before any export restrictions from Cyprus applied, and Coin C was found in Cyprus and exported from Cyprus after export controls were applied, even though all three coins are the same type and that type has been listed, only Coin C would meet the definition of designated archaeological or ethnological material and thus be properly subject to import restrictions into the US. The first two coins would not, as, not being first found in Cyprus and/or not being subject to export restrictions when exported from Cyprus, they are not archaeological or ethnological material of the State Party as defined in the Act and thus cannot be designated archaeological or ethnological material even though the same type of coin as Coin C. That is effectively the heart of the matter and where the Court has, in my opinion at least, gone wrong. I note in particular that the Court’s reasoning at page 28-29 of the judgment is flawed, as (not without a degree of irony), in critising the Guild for “conflating” the definition of designated archaeological or ethnological material with that of archaeological or ethnological material of the State Party, it seems the Court has somehow managed to overlook that the definition of designated archaeological or ethnological material is expressly defined in such a way as to make such material a subset of the set of objects that are archaeological or ethnological material of the State Party. It seems quite clear from the reasoning that follows (p32 in particular), that had the Court not made that mistake they would not (and logically could not) have reached the conclusion that it did. However, by allowing the Government to discharge its initial burden simply by reference to whether or not the coins were of the same type as an object that has been listed, without having to also establish that they were first discovered in and were subject to export control by the relevant State Party, the Court erred (or more plainly, has got it arse about face) and is effectively allowing the list of designated archaeological or ethnological material to be determinative of what is covered by the Act instead of the Act being determinative of what is covered by the list. That is not only illogical, but presumably does not reflect  the legislative intention - one would have thought that if the powers that be wanted the Government to be able to place import restrictions on all objects of a certain type irrespective of where they were found and whether or not there were export restrictions in place when exported from the State Party, then they would have made that clear and certainly wouldn't have gone to the trouble of setting up the relevant definitions in the way that they have been set up. I'm not great on my international law but the decision also seems to have some consequences in that sphere that could hardly have been intended - on the Court's reasoning a State Party and the US could effectively agree between themselves to import restrictions on the archaeological or ethnological material of another state without reference to that state - eg using our example above of a Cyrpian coin first found in Turkey, under the Court's reasoning in this decision the US and Cyprus could effectively impose import restrictions on Turkey in respect of that coin without Turkey's consent. Again, it is hard to see how that could be intended. I’m also at a loss as to why the Court seemed to think that in seeking to address whether or not these particular coins were archaeological or ethnological material of the State Party the Guild was attempting to revisit an earlier issue about whether the type itself was properly listed under CPIA in the first place (perhaps it was argued that way in the hearing?). They seem like distinct issues to me. In any case, the Court's mistake permeates through the balance of the decision. E.g. if I am correct in what I say above the Court has also erred in addressing evidentiary and seizure requirements, as while it is quite clear from § 2610(1) that in forfeiture proceedings the Government only has to prove that the material seized under § 2606 has been properly listed under § 2604, both of those sections in turn only apply to designated archaeological or ethnological material. It may be different in the US, but where I practice, in the absence of an explicit statutory authorisation allowing an assumption that the Act applies to all items of a type that has been properly designated regardless of whether individual objects are themselves archaeological or ethnological material of the State Party (and I've not seen such statutory authorisation here), it would be an implicit pre-requisite that in meeting its burden of proof under 2610(1) that the government first show § 2606 and § 2604 actually apply to the items in question! There are other issues too, eg it's perfectly Kafkaesque for the court not to require the Government to prove that the Act applies to the objects in question and not to allow the importer to lead evidence to the effect that the object is not the archaeological or ethnological material of the State Party, which seems to be the consequence of only allowing the importer to lead evidence relevant to the defences contained in the Act at § 2606(b) - of course if the object is not the archaeological or ethnological material of the State Party then those defences (which assume that the object is the archaeological or ethnological material of the State Party and thus the State Party or some other specified person is able to provide certification as to the export of the object) are not practically going to be available in the first place!  It really is quite absurd. I could go on but if you have made it this far without falling asleep you deserve a break! I guess in conclusion I felt compelled to address this as it seems surprising to me that (if I'm right) the Court has made such an obvious and basic error - so obvious that it makes me nervous as it's hard to believe it could have been made - maybe as I said at the outset, it's me who's missing something! But if not, I hope there's scope for another round of appeal. Even though I'm not an American, it pains me to see bad law, especially when it's about our hobby![/QUOTE]

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