Cultural Heritage Claims and State Immunity
The law of state immunity is in flux. In October I am planning to write an article for publication provisionally entitled, ‘State and Diplomatic Immunity in the English Court’, which argues that following the decision of the United Kingdom Supreme Court in Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs  UKSC 62, the European Convention on Human Rights trumps the State Immunity Act 1978, thereby opening the door to civil claims against foreign states in the English Court based upon the same case theory. The article will also discuss the Supreme Court decision in Al Malki v. Reyes  UKSC 61.
Can these principles be applied in a cultural heritage claim?
For more information please visit the ‘State and Diplomatic Immunity in the English Court’ page of the Diplomatic Law Guide: www.diplomaticlawguide.com.
Art Due Diligence & Claims
Due diligence involves investigating:
(a) provenance; and
‘Establishing good title before exercising a transaction by searching its provenance or history of ownership is an important first step for a collector, auction house, dealer, or museum. An art object may possess an impeccable chain of ownership, however, it is not the exclusive answer to the issue of good title … The work itself may be a forgery and not be authentic. An art expert that issues a certificate of authenticity might change his or her opinion based on new facts or revelatory technology. A buyer relying upon one expert’s professional judgment that is disputed by a different art appraiser or art historian might cause the value of the acquired art to decrease dramatically, which might lead to breach of warranty claims. Another concern, especially for works of antiquities and even post-modern art, is that because of their rarity they may have acquired a unique intrinsic, and sometimes sentimental, “inflated” value. In a celebrity-driven commercial world, art connected to the social status of the seller may impact the work’s market value. A fundamental duty exists for a buyer of an object d’art to examine the work’s provenance, authenticity, and value before making a purchase. It is also imperative to know and trust the party that is brokering the art transaction.’ (Jones, page 57).
‘Essentially an appraisal is an informed opinion or expert estimate of the monetary value of an object. Appraising original artwork is fraught with difficulty … When original works of art change hands, it is often done privately, and the prices are not necessarily made publicly available. Objective factors, such as the rarity of the work, may tend to increase value, since the laws of supply and demand influence the art market as they do any market … The physical condition of a work may also have an effect on the price … The provenance of a work is a critical factor in valuation. For example, if a work originated from the estate of the artist, a prominent collector, or had been owned by or exhibited in a museum or by a prominent art dealer, the history will enhance its value, because it is an indication of high quality. Celebrity ownership is also an important factor in prices achieved for works of art as well as memorabilia. This is often true even if the object has no great intrinsic value … Subjective determinants, such as taste, style and reputation of the artist, influence prices, and evolve constantly. An artist’s stature may be difficult to measure objectively, but reliable indicators include exhibition history, critical response, publications, and inclusion in important public and private collections. Still, often the relative quality and value of a work is debated, even among appraisers … When it comes to the work of recognised artists, authenticity is without doubt the single most important factor that determines the value of the work of art … An appraisal can take the form of an oral opinion, with minimal or no supporting data, a brief letter, or a highly detailed formal written report prepared by an expert based on extensive research and documentation.’ (Prowda pp.203 – 205).
‘Upon consignment, an in-house specialist or external expert appraises each lot in order to generate a description for the sale catalogue. In appraising an art object, the expert identifies its attributes, namely its creator or the respective place of origin or discovery, the date or period of creation and provenance. The final result of that assessment is expressed in the art object’s attribution … A sleeper is an artwork or antique that has been undervalued and mislabelled due to an expert’s oversight, which consequently is undersold at auction. The auction house’s misattribution is printed in the sale catalogue as well as displayed on its website, communicated to potential clients and to those attending the sale. Accordingly the art object is introduced into the public art market under a wrong label … When a sleeper is introduced at auction, the expert has failed to correctly determine the valuable attribution of the art object. As a result, the art object is sold for a considerably underestimated price …
A misattribution is an erroneous attribution: the error lies in the wrongful identification or appreciation of the object. With sleepers, the misattribution must also devalue the art object. Essentially, three types of erroneous and undervalued attributions produce sleepers … attribution of the artwork or antique to a lower-valued creator instead of the actual higher-valued creator … incorrect dating of the object, which is essentially relevant for antiques; and … incorrect provenance or ownership history. To be clear, an art object’s physical condition is not an attribute. The erroneous identification of one attribute often inevitably leads to a wrong assessment of many of the art object’s other attributes.’ The Sale of Misattributed Artworks And Antiques At Auction by Anne Laure Bandle, published by Edward Elgar.
‘An auction is defined by its three players – the consignor (seller), the auction house (agent), and the buyer – and the intricate relationships among them. [The Consignor-Action House relationship] is characterised by its fiduciary nature. The auction house must act in the utmost good faith and in the best interest of the principal, the consignor, at all times. A breach of fiduciary duty could give rise to liability on the part of the auction house as agent for the consignor as principal, whether the cause of action is based in contract or negligence.
The auction process begins when a consignor decides to sell property through an auction house. Sellers are typically known to consign works from their collections in the event of death, divorce, debt or discretion … the last point referring to sellers who do not have to sell but chose to do so in order to take advantage of a strong market…
The job of the auction house is twofold: to attract consignments and to conduct the sale, both in a responsible manner. First the auction house must assess whether an item is “auctionable,” that is whether it should be sold in a public fashion at auction, or privately via a “private treaty sale,” or sold through a private dealer or gallery …
Once an item is deemed auctionable and the consignor decides to go forward with the sale, the parties will enter into a written consignment agreement …
Most major auction houses, including Sotherby’s and Christie’s, require the consignor to make certain representations and warranties as a condition to accepting the property for sale. The most important of these concern legal title. Specifically, the consignor must represent and warrant ownership and clear title to the work being consigned, free of all liens, claims, and encumbrances, and to support the provenance of the work if it is questioned. Upon sale the consignor warrants that good title and right to possession of the work will pass to the buyer free and clear of any liens, claims, or encumbrances.
The consignor is also required to represent and warrant that he will indemnify the auction house if there is a defect in title …
[The main concerns] of the buyer are authenticity, provenance, and clear title. The buyer relies on the credibility and expertise of the auction house and on the representations about the property that are contained in the auction catalog. Therefore, if an auction house represents to the buyer that the work is authentic, the buyer has a right to rely on that information. Later, if questions arise concerning the authenticity of the work, the buyer will seek recourse from the auction house, even if the identity of the consignor is disclosed, since the auction house is considered a market expert and has made representations in the catalog concerning authenticity …
The buyer is also entitled to rely on the auction house for assurance that he will be granted clear title to the item purchased whether or not the principal is disclosed …
All bidders at an auction can assume that the auction process is conducted with integrity and that the estimated prices are reasonable, and can bid with confidence on the assumption that the auction is not subjected to illegal manipulation by the auction house in order to obtain higher prices (no shill bidding).
Because courts have enforced time limitations for breach of warranty of authenticity claims, buyers have resorted to other theories, such as negligent misrepresentation and fraud.
The most common tort claim asserted is negligent misrepresentation, in which a buyer claims the auction house represented that the work was authentic, and it is proven to be inauthentic. A prerequisite to negligent misrepresentation is the existence of a “special relationship” between the parties, which under New York law is a fiduciary one, requiring more than an arms-length business relationship.’ (‘Prowda pp.184 – 199).
In private treaty sales it is usual to carry out a search of a stolen art database, e.g. Interpol, the ICOM Red List, the FBI, the Art Loss Register and Art Recovery International.
Where the forger is the seller, or is connected to the seller, the buyer is entitled to rescind the contract on the basis of fraudulent misrepresentation.
Where the seller is innocent but mistaken, in the absence of an express warranty of authenticity, provided the view expressed by the seller is reasonable and genuinely held, there is no contractual remedy against the seller. (See Drake v Thos. Agnews , Taylor Thomson v Christie’s  and Thwaytes v Sotheby’s ).
However, a dealer or international auction house may owe a higher duty when selling an item within the scope of his advertised expertise.
Each case will depend upon on its own facts.
Whatever the size of gallery, there are usually two forms of transactions between dealer and artist:
(a) an outright purchase of artwork by the dealer; and
(b) more commonly, a consignment. Which is an outright purchase.
The relationship between dealer and artist is a buyer-seller relationship, and not a fiduciary relationship, because the dealer is not acting as the artist’s agent, but rather becomes the owner of the work.
In a consignment transaction, the artist consigns the work to a dealer.
Artist-dealer representation agreements are sometimes confused with simple consignment agreements.
Each form creates different legal obligations:
(a) a consignment agreement ordinarily addresses particular works for a limited transaction (for example, a specific gallery exhibition); and
(b) an artist-dealer agreement usually includes general provisions that pertain to consigned works and a separate consignment agreement or rider identifying specified works.
Avrora Fine Arts Investment Ltd v Christie, Manson & Woods Ltd : http://www.bailii.org/ew/cases/EWHC/Ch/2012/2198.html
Drake v Thos. Agnew & Sons Ltd. : http://www.bailii.org/ew/cases/EWHC/QB/2002/294.html
Thomson v Christie Manson & Woods Ltd & Ors : http://www.bailii.org/ew/cases/EWCA/Civ/2005/555.html
Thwaytes v Sotherby’s : http://authenticationinart.org/pdf/artlaw/Thwaytes-v-Sothebys1.pdf
Statutes and Regulations
Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013: http://www.legislation.gov.uk/uksi/2013/3134/made
Consumer Rights Act 2015: http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted
Dealing in Cultural Objects (Offences) Act 2003: https://www.legislation.gov.uk/ukpga/2003/27/contents
Limitation Act 1980: https://www.legislation.gov.uk/ukpga/1980/58
The Artist’s Resale Right Regulations 2006: http://www.legislation.gov.uk/uksi/2006/346/contents/made
Sale of Goods Act 1979: https://www.legislation.gov.uk/ukpga/1979/54
Tribunals Courts and Enforcement Act 2007 (Part 6): https://www.legislation.gov.uk/ukpga/2007/15/part/6
EU Directive 2014/60/EU: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014L0060
The Granada Convention 1985 (The Convention for the Protection of Architectural Heritage in Europe): https://rm.coe.int/168007a087
The Hague Convention 1954 (The Convention for the Protection of Cultural Property in the Event of Armed Conflict): http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html
The Paris Convention 1954 (European Cultural Convention): https://www.coe.int/en/web/culture-and-heritage/european-cultural-convention
The Valetta Convention 1992 (The Convention for the Protection of the Archaeological Heritage of Europe): https://www.coe.int/en/web/culture-and-heritage/valletta-convention
The World Heritage Convention 1972: http://whc.unesco.org/en/conventiontext/
Anglim Kreder J., “Reconciling Individual and Group Justice with the Need for Repose in Nazi-Looted Art Disputes: Creation of an International Tribunal”, Art Antiquity and Law, 2008, p. 243 ff.
Bator P., “An Essay on the International Trade in Art”, Stanford Law Review, 1982, p. 275 ff.
Byrne-Sutton Q., “Arbitration and Mediation in Art-Related Disputes”, Arbitration International, 1998, p. 447 ff.
Byrne-Sutton Q., “Resolution Methods for Art-Related Disputes”, International Journal of Cultural Property, 1998, p. 249 ff.
Byrne-Sutton Q., Geisinger-Mariéthoz F. (éds.), Resolution Methods for Art-related Disputes, Etudes en droit de l’art, vol. 11, Schulthess 1999.
Carducci G., La restitution internationale des biens culturels et des objets d’art volés ou illicitement exportés : droit commun, directive CEE, convention de l’UNESCO et d’UNIDROIT, L.G.D.J. 1997.
Chechi A., The Settlement of International Cultural Heritage Disputes, Oxford University Press, 2014.
Chechi A., “New Rules and Procedures for the Prevention and the Settlement of Cultural Heritage Disputes: A Critical Appraisal of Problems and Prospects”, in Lenzerini F., Vrdoljak A.F. (eds.), International Law for Common Goods – Normative perspectives on human rights, culture and nature, Hart Publishing, 2014, p. 249 ff.
Chechi A., “Plurality and Coordination of Dispute Settlement Methods in the Field of Cultural Heritage”, in Francioni et al. (eds.), Enforcing Cultural Heritage Law, Oxford University Press, 2013, p. 177 ff.
Chechi A., “Evaluating the Establishment of an International Cultural Heritage Court”, Art Antiquity and Law, April 2013, p. 31 ff.
Cornu M., Renold M.-A., “Le renouveau des restitutions de biens culturels : les modes alternatifs de règlement des litiges”, Journal de droit international, No. 2, 2009, p. 493 ff.
Cummins A., Promoting the Use of Mediation in Resolution of Disputes over the Ownership of Objects in Museum Collections: Statement by the President of INCOM Alissandra Cummins, www.icom.museum/satement_mediation_eng.html
Fitz Gibbon K. (ed.), Who Owns the Past?: Cultural Policy, Cultural Property, and the Law, Rutgers University Press 2005.
Francioni F., “A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage”, in Yusuf A.A. (ed.), Standard-Setting in UNESCO, Normative Action in Education, Science and Culture (Vol. I), Martinus Nijhoff and UNESCO Publishing 2007, p. 221 ff.
Francioni F., “Au-delà des traités: l’émergence d’un nouveau droit coutumier pour la protection du patrimoine culturel”, Revue Générale de Droit International Public, 2007, p. 1 ff.
Gabus P., Renold M.-A. (éds.), La revendication des œuvres d’art spoliées, Etudes en droit de l’art, vol. 15, Schulthess 2004.
Gazzini Fellrath I., Cultural Property Disputes: The Role of Arbitration in resolving non-contractual Disputes, Transnational Publishers 2004.
Gerstenblith P., “The Public Interest in the Restitution of Cultural Objects”, Connecticut Journal of International Law, 2000-2001, p. 197 ff.
Hoffman B.T. (ed.), Art and Cultural Heritage, Law, Policy and Practice, Cambridge University Press 2006.
International Bureau of the Permanent Court of Arbitration, Resolution of Cultural Property Disputes, Peace Palace Papers, Volume VII, La Haye 2004.
Jonathan Hill “International Commercial Disputes” .
Kaye L.M., “Art Wars: The Repatriation Battle”, New York University International Journal of Law and Politics, 1998-1999, p. 79 ff.
Kowalski W.W., “Restitution of Works of Art Pursuant to Private and Public International Law”, Recueil des Cours de l’Académie de Droit International, 2001, Vol. 288, p. 17 ff.
Marek H.M., “Resolving the Dispute Between Two Innocents in Holocaust Restitution Cases”, Art Antiquity and Law, December 2015, p. 337 ff.
Merryman J.H., “A Licit International Trade in Cultural Objects”, International Journal of Cultural Property, 1995, p. 4 ff.
Merryman J.H., “Two Ways of Thinking about Cultural Property”, American Journal of International Law, 1986, p. 831 ff.
McGregor on Damages.
Nafziger J.A.R., “A Blueprint for Avoiding and Resolving Cultural Heritage Disputes”, Art Antiquity and Law, 2004, p. 3 ff.
Nafziger J.A.R., Nicgorski A.M. (eds.), Cultural Heritage Issues: The Legacy of Conquest, Colonization, and Commerce, Martinus Nijhoff Publishers 2009.
O’Donnell T., “The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa?”, European Journal of International Law, 2011, p. 49 ff.
Palmer N. (ed.), The Recovery of Stolen Art, Kluwer 1998.
Palmer N., “Repatriation and De-accessioning of Cultural Property: Reflections on the Resolution of Art Disputes”, Current Legal Problems, 2001, p. 477 ff.
Palmer N., Museums and the Holocaust, Institute of Art and Law 2000.
Papathanassiou A., “Monitoring the Implementation of the 1970 UNESCO Convention: Recent International and Quasi-Institutional Legal Developments”, Art Antiquity and Law, December 2014, p. 333 ff.
Phelan M., Legal and Ethical Considerations in the Repatriation of Illegally Exported and Stolen Cultural Property: Is there a Means to Settle the Disputes? www.intercom.museum/conferences/2004/phelan.html.
Prowda.J.B., “Visual Art And The Law – A Handbook For Professionals”, Lund Humphries in association with Sotherby’s Institute of Art (2013).
Prott L.V. (ed.), Witnesses To History – A Compendium of Documents and Writings on the Return of Cultural Objects, UNESCO 2009.
Prott L.V., “Problems of Private International Law for the Protection of the Cultural Heritage”, Recueil des Cours de l’Académie de Droit International, 1989-V, Vol. 217, p. 215 ff.
Renold M.-A., Chechi A., “Just and Fair Solutions: An Analysis of International Practice and Trends”, in Campfens E. (ed.), Fair and Just Solutions? Alternatives to Litigation in Nazi Looted Art Disputes: Status Quo and New Developments, Eleven Publishing, 2014, p. 187 ff.
Robert Ribeiro, “Commercial Litigation: Damages and Other Remedies for Breach of Contract.” (2005).
Schönenberger B., The Restitution of Cultural Assets: Causes of Action – Obstacles to Restitution – Developments, Stämpfli 2009.
Shapiro D., “The Restitution of the Parthenon Marbles and the European Union: A Historical-Cultural-Legal Approach”, International Journal of Cultural Property, 2000, p. 354 ff.
Sidorsky E., “The 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects: The Role of International Arbitration”, International Journal of Cultural Property, 1996, p. 19 ff.
Siehr K., “International Art Trade and the Law”, Recueil des Cours de l’Académie de Droit International, 1993-VI, Vol. 243, p. 9 ff.
Strother G., “Resolving Cultural Property Disputes in the Shadow of the Law”, Harvard Negotiation Law Review, Spring 2014, p. 337 ff.
Symeonides S.C., “A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property”, Vanderbilt Journal of Transnational Law, 2005, p. 1177 ff.
von Schorlemer S., “UNESCO Dispute Settlement”, in Yusuf A.A. (ed.), Standard-Setting in UNESCO, Normative Action in Education, Science and Culture (Vol. I), Martinus Nijhoff and UNESCO Publishing 2007, p. 73 ff.
Vrdoljak A.F., International Law, Museums and the Return of Cultural Objects, Cambridge University Press 2006.
Woodhead C., “Nazi Era Spoliation: Establishing Procedural and Substantive Principles”, Art Antiquity and Law, July 2013, p. 167 ff.
Woodhead C., “Not Merely Symbolic Restitution: Constable’s Beaching A Boat, Brighton”, Art Antiquity and Law, October 2015, p. 243 ff.
Woodhead C., “Redressing Historic Wrongs, Returning Objects to Their Rightful Owners or Laundering Tainted Objects? 21st Century UK Remedies for Nazi-Era Injustices”, International Journal of Cultural Property, 2014, p. 113 ff.
Arts Council England: http://www.artscouncil.org.uk/
Art and the Law: http://www.artscouncil.org.uk/sites/default/files/download-file/lawpack_public_order_0.pdf
Art law: Restrictions on the export of cultural property and artwork November 2017 – A report by the IBA Art, Cultural Institutions and Heritage Law Committee: https://www.ibanet.org/LPD/IP_Comm_Tech_Section/Art_Cultl_Inst_Heritage_Law/Default.aspx
Art Law London Blog: http://artlawlondon.blogspot.co.uk/
British Art Market Federation: http://tbamf.org.uk/
Boodle Hatfiled Art Law Blog: https://artlawandmore.com/home-2/the-articles/
Christie’s Education: https://www.christies.edu/london/courses/masters-art-law-business.aspx
CLANCCO (Art and Law Resources): http://clancco.com/wp/category/art-law/
Courtauld Institute of Art: www.courtauld.ac.uk
Design and Artists Copyright Association: https://www.dacs.org.uk/
Department for Culture Media and Sport: https://www.gov.uk/government/organisations/department-for-digital-culture-media-sport
How to Prove ‘Authenticity’ in Court: The English Perspective by Lisette Aguilar, Associate General Counsel Sotheby’s: http://www.uiavalencia2015.com/public/pdf/AGUILAR_Lisette_Art_Law_EN.pdf
Institute of Art and Law: https://www.ial.uk.com/
Museums Association: https://www.museumsassociation.org/home
National Gallery of Art (Washington DC) 2016 Annual Report: https://www.nga.gov/content/dam/ngaweb/About/pdf/annual-reports/annual-report-2016.pdf
Professional Advisors to the International Art Market: http://www.paiam.org/
Society of London Art Dealers: http://www.slad.org.uk/
Sotherby’s Art and Law: http://www.sothebys.com/en/news-video/blogs/specials/art-and-law.html
TEFAF 2016 Art Market Report: http://1uyxqn3lzdsa2ytyzj1asxmmmpt.wpengine.netdna-cdn.com/wp-content/uploads/2017/03/TEFAF-Art-Market-Report-20173.pdf
The Art and Antiques London Stolen Art Database: http://collectionstrust.org.uk/resource/london-stolen-arts-database/
The Association of Art & Antique Dealers: https://lapada.org/
Thwaytes v Sotherby’s : http://authenticationinart.org/pdf/artlaw/Thwaytes-v-Sothebys1.pdf
Today’s Art World Blog:https://todaysartworld.wordpress.com/2018/01/09/drawing-artists-to-keep-an-eye-on/
WIPO Alternative Dispute Resolution (ADR) for Art and Cultural Heritage: http://www.wipo.int/amc/en/center/specific-sectors/art/