Art & Antiquities Disputes

As a practising Barrister, I am developing the mediation of Art and Cultural Heritage Disputes as a niche practice area. I am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law, and plan to qualify as a mediator in 2024. I can then be appointed as an expert co-mediator to provide technical support to mediators on law, best practice, and ethics.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,

‘Fiduciary Theory of Art And Cultural Heritage’.

Current Outline of the book

  1. Introduction

1.1    Taxonomy

1.1.1           What is art?  [Tangible & intangible].

1.1.2           What is cultural property? [Includes landscape].

1.2    Theory

1.2.1           What is the legal significance of art being cultural property?

1.2.2           When art [‘A’] is of cultural significance, i.e. is recognised as being cultural property [‘CP’], it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), what public duties do or should attach to possession? In particular, is the possessor [‘P’] who owns A under private law that is also CP, a custodian of the object [‘CPO’]? In which case, do fiduciary duties attach to possession, e.g. a duty to preserve and protect the cultural property object [‘DP’] including underwater sites (which is my research area of special interest – Maritime Archaeology). If P is a state, do these duties extend to protecting the CPO in the event of war? If the answer to that question is yes (and I conclude that it is), then the DP appears to be a quintessentially fiduciary duty.

1.2.3           There is a relationship between the human environment, development and culture.

1.2.4           The commentary to the preamble to the Draft International Covenant on Environment  and Development (5th edition, IUCN Switzerland 2015) states:

‘All civilisations spring from and are shaped by the quality of their surrounding natural elements [and that] the histories of different peoples are inseparable from the natural conditions in which they have lived for millennia. … Art, literature and science cannot be understood, or even imagined, without acknowledging the influence of nature and its components. Thus, cultural diversity, like biological diversity, emerges from the various ecosystems.’

1.2.5           Since the Declaration of the UN Conference on the Human Environment, Stockholm, June 1972  (the ‘1972 Stockholm Declaration’) stated that ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled …’, and this ‘special responsibility’ includes a duty to restore and maintain the integrity of the environment, the existence of fiduciary duties in relation to cultural heritage is linked to wider: environmental; strategic; legal; and policy issues, i.e. international law applying to activities on the high seas and continental shelf.

1.2.6           The big question is What ethical standards of behaviour do these duties give rise to?

1.2.7           This is linked to:

(i)      international humanitarian law;

(ii)      the protection and preservation of cultural property; and

(iii)     illicit trafficking of art and antiquities.

1.2.8           The problem of illicit trafficking is linked to:

(i)      organised crime;

(ii)      money-laundering; and

(iii)     terrorist financing.

1.2.9           Criminal activities in turn are linked to civil ‘equitable’ remedies, i.e. injunctions and declarations.

1.2.10        Equitable remedies are linked to the evolving human rights doctrines curtailing the application and scope of state immunity rules.

Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62.

(i)               Because cultural identity is considered to part of human dignity it is linked to human rights, i.e. cultural heritage is of crucial importance to individuals and communities as part of their identity.

(ii)              Since cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.

1.2.11        Formulating international ‘ethical’ duties of care and standards (i.e. framing and institutionalisation), that are capable of practical implementation, monitoring, and enforcement involves multi-lateral diplomacy.

1.2.12        Policy driving innovation also requires education, because state parties to public international law instruments, i.e the UNESCO conventions have obligations to include cultural heritage in educational programs and to raise awareness of the existence and value of cultural heritage.

1.2.13        Education is also linked to human rights. For example, Article 15 of the Intangible Cultural Heritage Convention provides that:

‘Within the framework of its safeguarding activities of the intangible cultural heritage, each State Party shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.’

1.2.14        What is the philosophical and legal nexus between the existence of ethical standards and norms of behaviour in relation to art and cultural heritage:

(i)      under Public International Law;

(ii)      under civil law, i.e. Equity; and

(iii)     commercial practice.

[Foundational research topics:

(i)      Philosophy of art [and epistemology].

(ii)      Art History and methods.

(iii)     Philosophical foundations of fiduciary law.

                    (iv)    Doctrine of fiduciary government.

                    (v)     International humanitarian law].

1.3    The illicit trafficking of art and antiquities

1.3.1 Unauthorised excavation;

1.3.2 Theft; and

1.3.3 Smuggling.

1.4    State ownership 

1.5    Private sale     

1.5.1 Methods:

(i)      Sale to an art dealer;

(ii)      Consignment to an art dealer;

(iii)     Sale by an auction house following consignment; and

(iv)    Private sale to a collection or museum without the use of an intermediary.

1.6.   Disputes

1.6.1 Misattribution.

1.6.2 Conversion.

1.7    Parties

1.7.1 Consignors.

1.7.2 Auction Houses.

1.7.3 Dealers.

1.7.4 Private purchasers and collections.

1.7.5 Museums.

  1. Common law remedies

2.1    Damages in contract for breach of warranty.

2.2    Damages in tort for breach of a duty of care:

2.2.1           Misattribution.

2.2.2           Misrepresentation.

2.2.3           Misstatement.

2.2.4           When does a special relationship exist between the auction house and the potential consignor? – NB the Thomson case.

2.2.5           What is the auction house’s duty of care:

(i)      Specialist.

(ii)      Non-specialist.

NB    The problem of duality and conflicts of interest – price where the Auction House acts for both seller and buyer.

2.3.   Suing in conversion for return of the object – Barakat case.

2.4    Bailment.

  1. Public International law rules and norms
  2. The remedial gap

4.1    Common law:

4.1.1 Diligence test applied by courts is based on a fiction – the reasonable auctioneeer who uses adequate care in the execution of his duties and obligations:

(a)     first drawback of test is when no expert consensus existed at the time of a wrong attribution; and

(b)     second – the circularity and contingency of scholarship, exposing attributions to divergences amongst scholars and to continuous change.

4.1.2 Preponderance of the evidence standard applied by courts, i.e. courts have no intention to find an absolute truth but merely s preponderant truth.

4.1.3 Judges generally lack the connoisseurship to endorse an expert’s judgment by eye, i.e. judges must rule on questions of art authenticity by strongly relying  on expert evidence, without having the requisite skill and knowledge to evaluate and critically assess such evidence. Consequently, instead of rendering a judgment based on the experts’ arguments substantiating a specific attribution,  a judge may decide that a specific expert  is more eminent and established, and therefore that expert’s attribution prevails – Coleridge.

4.1.4 Measure of damages.

4.1.5 Limitation.

4.2    Public International Law.

  1. Existence of fiduciary duties

5.1    Private law:

5.1.1 Legal test and hallmarks.

5.1.2 Agency.

5.2    Public International law.

5.2.1 Jus Cogens.

  1. Nature of fiduciary duties

6.1    Private law:

6.2    Public law:

  1. Application of fiduciary duties

7.1    Archaeology (including maritime archaeology).

7.2    Acquisition:

7.2.1 Theft/Appropriation.

7.2.2 Gift.

7.2.3 Sale:

(i)      What fiduciary duties do auction houses and dealers owe to consignors?

7.3    Loan and exhibition.

  1. Does or can equity fill the gap?

8.1    Remedies for breach of fiduciary duty:

8.1.1 Rescission.

8.1.2 Equitable compensation;

(i)      Legal test for recovery; and

(ii)      Measure of compensation.

8.1.3 Restitution of cultural property linked accessorial claims:

(i)      Dishonest assistance; and

(ii)      Unconscionable receipt.

8.1.4 Injunctions.

8.1.5 Declarations.

8.2    Bars to equitable claims:

8.2.1 Contractual defences – exclusion clauses:

8.2.2 Procedural defences:

(i)      Jurisdiction and PIL.

(ii)      State Immunity Rules.

(iii)     Limitation.

  1. International law solutions

9.1    UNESCO-UNIDROIT Model Provisions on State Ownership of Cultural Items

9.1.1  Not a binding legal text or a normative instrument but model private law regulations that determine the conditions under which the victim of a theft regains the cultural object back to its territory:

9.1.2 Designed to plug loopholes in the Convention On The Means Of Prohibiting And Preventing The Illicit Import, Export, And Transfer of Ownership Of Cultural Property 1970 that dealers and illegal excavators of cultural property were exploiting, i.e. because the public law scheme is weak.

  1. Conclusions

10.1  Is there a single unifying fiduciary theory of duties in relation to art and cultural property?

10.2  How and when do these duties arise?

10.3  What obligations are owed?

10.3.1         in private law; and

10.3.2        under public international law:

(i)      This is linked to international humanitarian law and the protection and preservation of cultural property.

(ii)      That in turn is linked to equitable remedies, i.e. injunctions and declarations.

(iii)     Remedies are linked to the evolving human rights doctrines curtailing the application and scope of state immunity rules.

10.4  What ethical standards of behaviour do these duties give rise to?

10.5  While courts cannot apply ethical standards, market/best practice is a dynamic in the mediation of art and cultural property disputes which can influence settlement because it is connected to reputational risk.

10.6  Is mediation the future of ADR in art and cultural heritage disputes?

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Cases

Al Malki v. Reyes [2017] UKSC 61: https://www.supremecourt.uk/cases/uksc-2016-0023.html

Avrora Fine Arts Investment Ltd v Christie, Manson & Woods Ltd [2012]: http://www.bailii.org/ew/cases/EWHC/Ch/2012/2198.html

Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62: https://www.supremecourt.uk/cases/uksc-2015-0063.html

Drake v Thos. Agnew & Sons Ltd [2002]: http://www.bailii.org/ew/cases/EWHC/QB/2002/294.html

Elidor Investments SA v. Christie’s Manson Woods Ltd [2009] EWHC 3600

Luxmoore-May v. Messenger-May Baverstock [1990] 1 All ER 1067

Okpabi and others (Appellants) v Royal Dutch Shell Plc and another [2021]

QSN Paper Co. Chartwell Shipping Ltd [1989] 2 SCR 683.

South Australia Asset Management Corp v. York Montague Ltd [1997] AC.191

Thomson v Christie Manson & Woods Ltd & Ors [2005]: http://www.bailii.org/ew/cases/EWCA/Civ/2005/555.html

Thwaytes v Sotherby’s [2015]: http://authenticationinart.org/pdf/artlaw/Thwaytes-v-Sothebys1.pdf

Statutes

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

Treaties

Council of Europe Declaration on Jurisdictional Immunities of State-Owned Cultural Property: https://www.coe.int/en/web/cahdi/news-cahdi/-/asset_publisher/FL6bNvghtkKV/content/declaration-on-jurisdictional-immunities-of-state-owned-cultural-property

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/