Judge rejects Greece’s claim of immunity

By Michael McCullough       June 24, 2019

The federal judge presiding over a lawsuit against the Greek Ministry of Culture rejected the country’s claim of immunity over its assertion of ownership to an ancient bronze figure of a horse owned by the Saretta Barnet Revocable Trust.

District Court Judge Katherine Polk Failla said Greece’s ownership claim, along with its demand upon Sotheby’s to remove the bronze from auction, amounted to “commercial activity” which would make Greece subject to the Trust’s lawsuit.

The Trust and Sotheby’s filed a lawsuit last year because one business day prior to the auction Greece emailed a letter to Sotheby’s demanding the object’s immediate withdraw from the auction and its repatriation to Greece.

The bronze horse had an acceptable provenance which was published in Sotheby’s catalogue: it was purchased by an unknown buyer at auction in April 1967 at Münzen und Medaillen in Switzerland and later sold to Robin Symes. Howard and Saretta Barnet acquired the bronze from Symes in November 1973.

In order to sue a foreign government in a US court, a plaintiff must show that the foreign government’s action was taken in connection with a “commercial activity” of the foreign sovereign. The commercial character of the foreign government’s activity is determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. Therefore, the foreign government’s activity need not have a commercial purpose if it’s one that a private party would take when engaged in commerce.

In this case, the Trust and Sotheby’s said that Greece’s activity — attempting to intervene in the market to assert and enforce its purported ownership rights — is clearly the type of activity in which private parties often engage. Judge Failla agreed and rejected Greece’s argument that the ownership claim was a uniquely governmental effort to police the heritage of its nation (the fulfillment of the Greek Ministry of Culture’s public purpose which could not have been fulfilled by a private party) and therefore not commercial in nature.  According to the court, Greece “conflates the nature with the purpose of the act.  While the purpose of sending the Demand Letter may have been to fulfill the Ministry’s constitutional mandate to protect Greece’s cultural heritage, the nature of the act is analogous to a private citizen attempting to enforce his property rights.”

Unless Greece appeals the decision, the case will go forward to the discovery phase in which the Greek government will have to disclose information in their possession about the bronze horse and will be forced to produce witnesses. Alternatively, Greece will have to recognize the Trust’s ownership of the bronze horse.

EU Tells Importers to Get Permission to Import Artwork

When you send a work of art to an auction house in Paris, you expect that the importation will go smoothly. You don’t expect the French government to intercede in the importation and to advocate on behalf of another government as to why the object is being imported and sold in France.

The next time you send any object more that 200 years old to France- or to any other EU country- there will be new rules about what you can expect from the French government. And the rules shouldn’t give art sellers the comfort that they will be treated fairly.

The changes made by the EU are onerous — antiquities that do not originate in an EU country now require an import license when they arrive in the EU. Objects over 200 years old and valued over 18,000 Euros that are fine art, decorative art, antiques, ethnographic art, collectibles, books, and manuscripts that do not originate in an EU country now require a special import declaration by the importer stating that they were legally exported.

Importers can only get an import license for antiquities if they can show proof that the object was legally exported from its country of origin, or, alternatively, for objects extant before 24 April 1972, proof of legal export from the last country where it was located for a period of more than five years. The relevant authorities will have up to 90 days of receipt of the completed license application to examine it and decide whether to issue the import license or to reject the application. And if a certain EU country rejects an application, that rejection, as well as the grounds on which it was based, will be communicated to every other EU country, so no forum shopping.

Objects subject to the new import declaration may require additional documentation providing the validity of the statement. The regulations state, “[t]he Commission shall lay down……procedural rules on its [the declaration’s] submission and shall indicate possible supporting documents to prove licit provenance of the cultural goods in question that should be in the possession of the holder of the goods and the rules on processing of the importer statement.” This could prove as difficult as getting an export license.

Each EU country will set up its own penalties for failure of an importer to get a license or make a declaration. The EU Regulation says, “penalties provided for shall be effective, proportionate and dissuasive.” The guillotine?

Mercifully, certain objects are exempt. The new rules do not apply to museum exhibitions. Also, antiquities on Temporary Importation that are destined to an art fair do not require an import license- an import declaration will be accepted instead.

The changes go into effect on June 27, 2019.

The Objects of Empire

How will French museums deal with their colonial past?

By Michael McCullough       January 31, 2019

Occasionally- but lately more frequently- as if to repudiate the complaint that European culture is haughty and unmoored, European intellectuals demand change in the European cultural point of view. Even if you’re bored by this preoccupation, those who work with art and cultural heritage must read the recent report by Felwine Sarr and Bénédicte Savoy to the French Government, titled “The Restitution of African Cultural Heritage: Toward a New Relational Ethics.” It proposes a new way of thinking about the restitution of objects forcefully taken by colonial powers, and it may change the way we think about the relationship between the universal museums of Europe and the places from which artifacts originate.

The report is born of President Macron’s statement in Burkina Faso in 2017 of his desire “to see the conditions put in place so as to allow for the temporary or definitive restitution of African cultural heritage to Africa.” Sarr and Savoy imagine a new paradigm in which former colonial countries view the act of restitution of objects as a form of future cultural survival of both the former colonizer and formerly colonized. To the authors, the crux of the problem is “the system of appropriation and alienation—the colonial system—for which certain European Museums, unwillingly have become the public archives.” They view the act of restitution of cultural property not as the mere return of an object but as an overt act to “open the possibility for the ‘universal,’ with whom they are so often associated in Europe, to gain a wider relevance beyond the continent.” Sarr and Savoy don’t define the “universal” but the report, in places, voices a cognitive universalism comprised of universal values reflected in common thought and language, as opposed to the cultural relativism that often guides the post-colonial relationship.

While the report begins by making very big claims for itself- and largely succeeds- in a fit of self-restraint it limits the discussion of restitution to objects forcefully taken from sub-Saharan Africa, specifically from the four Francophone African colonies of Benin, Senegal, Mali, and Cameroon. I was troubled by the report’s lack of confidence in its own reasoning; if the act of restitution really offers such a profound benefit to both Europe and Africa, then why shouldn’t everything taken by force be returned? Sarr and Savoy make the important and undeniable observation that the forceful taking of property effects “both the individual and the group as part of the foundation of their humanity (their spirituality, creativity, transmission of knowledge)”- like all violence does- with the natural corollary that “the [forceful] acquisitions of cultural heritage should be considered within a different category: that of transgressive acts, which no juridical, administrative, cultural, or economic apparatus would be capable of legitimizing.” Sure, taking money and politics off the table for an issue presented as so profoundly important is tolerable within the context of the proposal, but why then limit yourself to a few countries in sub-Saharan Africa? What about Egypt and Algeria? Why not throw in Asia and the Americas? It’s a flaw from which the report might never survive in the hands of French lawyers and politicians.

I enjoyed Sarr and Savoy’s brief survey of the history of the law in this area. They point out that until the end of the 19th century, “the right to pillage and plunder what had belonged to the enemy” and “the right to appropriate for oneself what one had taken from the enemy”, were the codified and legal practices of war. While these practices became illegal within Europe in the late 19th century, they continued in Asia and Africa well into the 20th century. The report catalogues military raids and punitive expeditions conducted by England, Belgium, Germany, Holland, and France, during the 19th century in China (1860), Korea (1866), Ethiopia (1868), the Asante Kingdom (1874), Cameroon (1884), the Tanganyika lake region and the future Belgian Congo (1884), the current region of Mali (1890), Dahomey (1892), the Kingdom of Benin (1897), present-day Guinea (1898), Indonesia (1906), and Tanzania (1907), that became occasions for extraordinary pillaging of cultural heritage. Thereafter, they turn to a brief discussion of the “Convention with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land”- known today in the art business as the First Hague Convention- signed in 1899 at the Hague by 24 sovereign nations, making the practice of pillaging cultural artifacts during military campaigns illegal.

They divert from their legal analysis, which at times feels obligatory, to an examination of what the world has foregone by limiting the discussion about restitution “to only the juridical aspects and to questions of legitimate ownership.” They want us to consider the implications of choosing a method of restitution not just as a “political and symbolic act, but also as an expression of a philosophical and relational order among people and countries.” One of the more charming ideas expressed in this part of the discussion is how certain artifacts should be viewed as not mere objects but as active subjects. The artifacts, “having become diasporas, are the mediators of a relation that needs to be reinvented. Their return to their communities of origin does not have as its aim to substitute one form of physical and semantic imprisonment by another, that would this time be justified by the idea of the ‘rightful property owner’.” That’s powerful stuff. Yes, it hints of shamanism, but if you are willing to ponder their proposal, why shouldn’t we be open to the artists’ original intentions when they created the works and see where it takes us? It’s no different than listening to a great piece of music or reading a great piece of literature and finding inspiration to address difficult problems. Isn’t that why we look at artwork in the first place?

This discussion of the relationship between object and subject in the context of the relationship between the former colonizer and the colonized forms the basis for the “new relational ethics” that the report espouses. And they don’t limit the discussion to mere restitution; “the thorny question of reparations cannot be eluded. When we reflect on the question of cultural heritage objects, we must understand that it’s not simply objects that were taken, but reserves of energy, creative resources, reservoirs of potentials, forces engendering alternative figures and forms of the real, and forces of germination; and this loss is incommensurable. Simply giving back these cultural objects won’t be the proper compensation. This force arises from a relation and mode of participation in the world that has been irremediably trampled upon. Thus, it’s less a question of reclaiming financial compensation than a symbolic re-establishment through a demand for truth. Compensation here consists in offering to repair the relation.”

Thus, the reparations are not economic- well, they’re economic in a sense- but the suspension of laws and norms that disallow wholesale restitution of objects in the following categories, for which the report advocates:

  • seized in the military contexts, despite the special legal status of military trophies before the adoption of the First Hague Convention;
  • collected in Africa during “scientific expeditions”, unless by consent of the owners or guardians of the objects when the objects were separated from them;
  • donated by private collectors who were colonial administration or their descendants, unless the consent of the seller (commission of copies, purchase at craft markets) can be ascertained; and,
  • acquired after 1960 under proven conditions of illicit trade.

The criteria for restitution in these categories would be swift and thorough without any supplementary research regarding the provenance or origins of objects taken by force or presumed to be acquired through inequitable conditions, such as:

  • through military aggressions (spoils, trophies), whether these pieces went on directly to France or whether passed through the international art market before then finding their way to being integrated into collections;
  • by way of military personnel or active administrators on the continent during the colonial period (1885-1960) or by their descendants;
  • through scientific expeditions prior to 1960; and,
  • objects housed in certain museums which were initially loaned out to them by African institutions for exhibits or campaigns of restoration, but which were never returned.

Regarding objects that entered into the museums after 1960 and those received as gifts or donations to the museum where there is reason to believe the pieces left African soil before 1960 (but which remained within families for several generations), the report suggests further research. If such research is unable to ascertain the initial circumstances around their acquisition during the colonial period, the pieces should be restituted based upon “justification of their interest by the country making the request.”

The report suggests the preservation within the French collections of African art objects and cultural heritage where the following can be established:

  • after confirmation that a freely consented to and documented transaction took place that was agreed upon and equitable, and,
  • that the pieces acquired conformed to the necessary rigor and careful monitoring of the apparatus in place on the art market after the application of the UNESCO Convention of 1970, in other words, without “taking any ethical risks.” Gifts from foreign Heads of State to the French government remain the property of France except where the heads of state concerned have been ruled against for the misuse of public funds (that doesn’t leave much).

The proposed timing of the exercise exudes haste as well as thrift: the immediate formal submission of the inventory of pieces coming from African states concerned (according to their present borders) which are currently held in public French collections for objects originating from Benin, Senegal, Nigeria, Ethiopia, Mali, and Cameroon. The second phase- Spring 2019 to November 2022- would involve a process of inventorying, the sharing of digital files, and an intensive transcontinental dialogue. Restitution, the third phase, would begin in November 2022 and would be open-ended. Since the removal of cultural objects took place over a long period of time, the report argues that the process of restitution should not be limited in time.

Of course, the major problem with the entire proposal is that none of it is legal under current French law. The report- not surprisingly and quite desperately- argues for the “creation, through national law, [of] a definitive path toward restitution, according to the requests, through the creation of an ad hoc procedure proposing the basis for a calm process toward restitution. It will also require the rationalization and the development within a bilateral framework, on a case by case basis, of the diverse actions of cooperation surrounding the decision of restitution and which will then establish a new context of cultural relations between France and each of the African countries.”

Currently, the French cultural heritage code deems objects in public collections inalienable. The report suggests establishing definitive restitution as the “key-element of heightened cultural cooperation, made concrete through the signature of a bilateral agreement, which will legitimize the new procedure of restitution introduced into the code concerning cultural heritage.” Changes to the law would also decide procedure for exceptions to restitution agreements, but- as a parting shot- the report notes that changes to the French cultural heritage code should not be “limited to objects only housed in museums,” a point that has not been lost on the French art market.

Michael Kinsley’s aphorism— “If you’re scared to go too far, you won’t go far enough”— describes the fate of an average political or cultural thinker, but Sarr and Savoy have a highly evolved point of view, and the report, while it could have gone farther, goes quite far enough. In the very least, it should be considered seriously.

Judicial Incompetence in Art Disputes

The Art Market is Searching for Answers

By MICHAEL MCCULLOUGH          May 14, 2018

There is a theory in the art market which has not been fully formulated, but which is largely accepted and is brought forward to criticize any judicial decision involving a work of art. It might be called, until a better name is found, the Theory of Judicial Incompetence in Art Disputes. According to this theory, judges and juries are too thoughtless to understand the complexities of the art market, and the authenticity of an artwork can only be fully comprehended by an art expert in his or her native environment, meaning anywhere outside of a courtroom.

At present this theory is being used to promote a new set of arbitration guidelines, called the “NAI Adjunct Arbitration Rules,” created by the Netherlands Arbitration Institute (NAI) and The Hague-based Authentication in Art (AiA). The NAI has been conducting arbitration for over six decades and has developed the NAI Arbitration Rules to suit a broad range of commercial disputes. The AiA is an independent nonprofit organization founded in December 2012 and consists of a group of international art world professionals. These Adjunct Arbitration Rules (AAR) supplement the primary NAI Arbitration Rules specifically for disputes in the international art market.

The AAR apply wherever the parties to an art market dispute agree to submit their dispute to resolution by arbitration in accordance with the AAR. This is usually done in the purchase agreement or in an auctioneer’s terms of sale but could be in an agreement after a dispute arises. To be clear, the AAR can apply to any art market dispute: authenticity, ownership, other contact claims, etc. However, the rules were first formulated to deal with authenticity disputes and seem better suited for this type of claim.

The AAR creates an “Arbitrator Pool” and an “Expert Pool” to decide disputes. The Arbitrator Pool is a group of arbitrators composed primarily of international lawyers with experience in litigating or counseling clients in art law disputes. The Expert Pool is composed of specialists qualified to address authenticity issues and includes international materials analysts, forensic scientists, art historians, and provenance researchers. The authenticity of artwork is typically evaluated according to standards of connoisseurship, provenance, and forensic science. While relevant scholars of an artist must be approached on a case-by-case basis, experts in the fields of provenance and forensic science can analyze objects of art more generally. As an alternative to having disputing parties retain their own respective experts in these fields, with such experts then advocating for their side, the AAR offers the Expert Pool to provide the exclusive analysis and testimony on these subjects. The parties may retain their own consulting experts to assist in their work with, and examinations or cross-examinations of, the chosen experts from the Expert Pool.

For artwork valued at or above € 500,000, the arbitration proceedings are conducted before a three-arbitrator panel. For objects of art valued below € 500,000, the parties conduct their arbitration proceedings before a sole arbitrator. In the case of a sole arbitrator, the parties must agree upon the appointment of an arbitrator from the Arbitrator Pool. If the parties are unable to agree, then the NAI appoints the arbitrator pursuant to the procedure in the NAI Rules. In the case of appointment of a three-member arbitrator panel, each party selects one arbitrator from the Arbitrator Pool and those two selected arbitrators jointly agree upon the selection of a third.

The AAR provides that the only admissible expert evidence in an authenticity dispute regarding issues of forensic science or the provenance of an artwork must be from an expert or experts chosen from the Expert Pool. All other expert witness evidence may come from any party-appointed experts.

A unique aspect of the AAR is the appointment of a “technical process advisor” to assist the arbitrator(s) in identifying and the gathering of relevant evidence in an efficient and cost-effective manner. The advisor acts under the authority and direction of the arbitrator(s), but may, if requested, draft proposed procedural orders for adoption by the arbitrator(s). The advisor does not attend the hearing on the merits or participate in the deliberations. However, the arbitrator(s) may wish to have the advisor present at hearings on procedural matters of an evidentiary nature to facilitate obtaining the advisor’s advice on such issues.

If the parties have not agreed to a governing law in their contract, the AAR provides that an appropriate choice of law for arbitration will be the law of the principal location of the seller, if known at the time of the transaction, in the case of a sale transaction. In matters other than a sale, an appropriate choice is the law of the principal location of the owner of the art object in question at the time of commencement of the arbitration. Under the NAI Arbitration Rules, the arbitrator(s) is to base its decisions on the rules of law, while respecting any applicable art industry trade usages. Should the parties prefer instead that the arbitrator(s) not be bound by such law, the parties must so authorize the arbitrator(s) in accordance with the NAI Arbitration Rules.

It is common for a plaintiff in an art dispute to bring a claim many year or even decades after the acquisition, particularly in the context of title claims. The AAR confirms that prescriptive periods and similar time-bar principles are intended to be respected where the party raising a claim or defense has no justification for its failure to timely advance its case. The purpose is to protect the other party from “stale” claims or defenses which were not pursued with reasonable diligence and other situations of undue prejudice, such as where evidence has been lost due to the long passage of time.

Under the NAI Arbitration Rules, a party may ask the arbitrator(s) to rectify a manifest error in an award with two months of the date of the award. However, there is no right to appeal the arbitrator(s) decision to any other body or tribunal.

Since the place of arbitration is in the Netherlands and the Netherlands is a signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), an award can be enforced in the many countries and other territories that are signatories to the convention or similar treaties with the Netherlands. A party seeking to enforce a final award, may follow the statutes, rules or regulations of the signatory country in which enforcement is sought.

My view is that the New York courts are very capable of handling art market disputes. I would prefer to be in a state or federal court in New York with an ownership dispute and I don’t think that arbitration under the AAR would provide a better result. In fact, I’m uncomfortable with the AAR rule cited above on statute of limitation; I would have expected a much more robust discussion of this complex area of the law.  While I have had much success is settling authenticity disputes without having to use the courts, when forced to file suit my cases have settled very quickly. However, other lawyers have had authenticity disputes linger in the courts for years with costly results, and the AAR could offer a better forum for those types of cases.

Time and Tide Make Us Mercenaries All

Does Stolen Property Ruin Everything?

By MICHAEL MCCULLOUGH          January 10, 2018

It is easy enough for me to say that theft continues to be a problem for those who buy and sell artwork. One might question the art market’s historical indifference to the victims of theft, but the more useful question would be, Is there a better way to prevent the trade in stolen artwork?

New York law on the topic is both established and chaotic. I choose an exemplary quotation from a legal brief filed by the New York District Attorney’s Office, or “DANY” for short, in a recent case:

“New York law prevents a purchaser of any kind from acquiring good title from a thief…. a good faith purchaser of an artwork has the burden of proving that the work was not stolen.”

That is, by and large, a good summary of the law, though it is by no means an exhaustive one.

In October of last year, DANY obtained a search warrant to seize a Persian Limestone Relief that once resided in Persepolis, an ancient city that was the ceremonial capital of the Achaemenid Empire, currently situated in Iran. Leaving aside any tentative judgments about New York State protecting the property interests of the Iranian Government, the warrant was based upon criminal laws that allow a court to hold property thought to be stolen until a criminal case is filed against a person related to the theft. Oddly, DANY alleged no improper conduct against the owners of the Relief and no criminal charges were expected to be brought against anyone connected to the Relief. Why, then, was the artwork seized?

The simple facts of the case are these. The Relief was donated to the Montreal Museum of Fine Art in 1951 and was on display there until it was stolen from the museum in September 2011. The Relief was insured by AXA and the museum was paid for its loss. The Royal Canadian Mounted Police recovered the Relief in Edmonton, Canada- a location not well known for the harboring of stolen artwork- and eventually returned it to the museum in January 2014. Thereafter, AXA took possession of the Relief, as it was then the owner after having paid the insurance claim, and sold it to Rupert Wace Ancient Art in London, England. Wace then sold a half interest in the sculpture to Sam Fogg. In October 2017, Wace shipped the Relief from London to New York for display at the TEFAF NY art fair. Federal law required Wace to obtain a license from the U.S. Office of Foreign Assets Control because of the US trade embargo against Iran, subject to exception for fine art, which he did obtain.

On October 27, 2017, Matthew Bogdanos of DANY visited the TEFAF NY fair with a warrant and three agents to seize the Relief because it was allegedly stolen from Persepolis in the mid-1930’s and was to be returned to Iran. True, an eighty-year-old theft sounds like a cold case, but the stolen property laws, in the first instance, don’t discriminate against old thefts. Think of the Nazi-looting between 1933-1945 and the legitimate need for claimants to retrieve their property despite the passage of time.

And New York law would have no problem with the Government of Iran bringing a lawsuit in the New York courts to recover its property. The question here was whether DANY could use the criminal laws to seize the Relief and return it to Iran. The owners of the Relief thought not. AXA, Wace, and Fogg filed papers with the court arguing that, absent the filing of criminal charges, the court should retain possession of the Relief until the question of its ownership could be resolved in a civil lawsuit that AXA had filed in Montreal days after the seizure.

Not surprising, the judge agreed with the owners. Judge Jackson said that the court had no power to allow DANY to return the Relief to Iran because there was no criminal prosecution of the owners. In consequence of this, DANY was ordered to retain custody of the Relief pending a determination its rightful ownership in the Montreal court, in which AXA is arguing, among other things, there is no proof that the Relief was stolen from Iran.

Going forward, DANY cannot seize and forfeit allegedly stolen artwork in the absence of a criminal prosecution, a ruling that invites future declaratory judgment title actions against foreign governments where the is no criminal intent of the current owners.

My firm made similar arguments in another case brought last year against DANY regarding the seizure of a Marble Archaic Bull’s Head that was allegedly stolen from Government of Lebanon. The Bull’s Head was purchased by our clients, William and Lynda Beierwaltes from Robyn Symes in 1996. Michael Steinhardt purchased the Bull’s Head from the Beierwalteses in 2010 and, shortly thereafter, loaned it to the Metropolitan Museum of Art. Here, one would expect a similar outcome to the Relief, but for the fact that DANY alleged that the Beierwalteses were in the business of buying and selling antiquities, an important allegation because New York law creates a presumption that people in the business of buying, selling, or dealing in property can be charged with criminal possession of stolen property “if [he or she] obtained it without having ascertained by reasonable inquiry that the person from whom he [or she] obtained it had a legal right to possess it.” This charge was leveled against the Beierwalteses because their bankruptcy attorney- in an obscure 2014 bankruptcy disclosure statement- said that the Beierwalteses “primary business for much of their adult lives has been the acquisition, management and sale of an extremely extensive and valuable body of art works … [in] … a category of art known as antiquities.” Deterred, the Beierwalteses dropped their claim to the Bull’s Head.

This criminal presumption means that anyone in the business of buying and selling artwork can be charged with a crime and their artwork can be seized and forfeited, if they did not make a “reasonable inquiry” of the seller’s lawful ownership of the object. In New York, at least, a person in the art business is required to make a reasonable inquiry into the ownership history of the artwork being acquired. While the law does not define “reasonable inquiry” and New York courts haven’t addressed the definition in the context of the sale of artwork, courts have done so in other fields: business owners have failed to make a reasonable inquiry by acquiring goods under suspicious circumstances, by failing to inquire as to the ownership of the property being purchased, and by failing to create internal documentation of the purchases.

I revert to my original question to say that while the duty to inquiry about the ownership of an artwork is a sensible one, some thought should be given to what amounts to a reasonable response. Put another way, there are various degrees in quality of information and sources in the international art market; we should be working to create a regulatory scheme to establish what is reasonable and what is not. Even more important is the need to provide art buyers and sellers a platform to vet undocumented artwork. An owner’s publication of an undocumented artwork in a public database should gain the owner some repose against claims after a sufficient period of public reflection, say seven years or so. Such publication should also remedy the owner’s failure to make a reasonable inquiry at the time of acquisition. Otherwise, there is great incentive for us to all become mercenaries without any regard to the loss of money, livelihood, and freedom of those who buy and sell artwork for a living.