Mediation of Art & Cultural Heritage Disputes

I am developing the Mediation of Art & Cultural Heritage Disputes as a practice niche.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the eminent Art Historian, Pandora Mather-Lees  (www.artonsuperyachts.com) entitled, ‘Art & Heritage Assets – Duties of Trustees’. I am also studying for a Diploma in Art Law at the Institute of Art & Law in London (https://ial.uk.com/). The provisional title of my three Diploma essays, which I am planning to write during the second half of 2022 is:

  • Fiduciary Theory of Art.’ (See the draft essay below).
  • Fiduciary Principles of International Relations in a conflict zone – How can a Non-State Actor contribute to the mediation of: (i) a protocol for the preservation and protection of Cultural Heritage in accordance with International Humanitarian Law; and (ii) a peace process?’ (See the draft essay below). [Please note that this essay connects with my separate and evolving research interest in, Transforming Geo-Political Conflict Through Mediation’ – see the Geopolitical Mediation’ page at www.diplomaticlawguide.com].
  • ‘Art Restitution Litigation in the English Court.’ (See the draft essay below).

‘Fiduciary Theory of Art’

  • Premise.
  • The nexus between International Humanitarian Law (‘IHL’) and classical fiduciary theory.

[This essay is an incomplete and unfinished work in progress].

Premise

The premise of this theory is that in relation to both antiquities and cultural heritage (which includes landscape), there is a philosophical and legal nexus between:

(i)     the existence of ethical standards; and

(ii)    norms of behaviour.

Because 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, Mediation  is an incubation tool in Cultural Heritage Diplomacy. 

Norms are linked to the existence of fiduciary duties. This is an evolving question that is linked to the concept of global fiduciary governance in the form of treaty-making and multi-lateral co-operation. Therefore, ‘fiduciary’ norms and duties (whatever their source), are a potential building block in reforming the institutional architecture of International Humanitarian Law (‘IHL‘).

The author’s theory is that 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), public duties do or should attach to possession. In particular, the possessor [‘P’] who owns A that is also CP, is also a custodian of the object [‘CPO’]. In which case, fiduciary duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’]. DP also applies to an underwater archaeological site, because as the French Archaeologist Salomon Reinach famously remarked, ‘The sea is the largest museum in the world’. Norms are therefore linked to the practical ethics of Maritime Archaeology. If is a state, these duties extend to protecting the CP in the event of war. Therefore, DP is a quintessentially fiduciary duty.  The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.

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

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; security; legal; and policy issues, i.e. international law applying to activities on the high seas and on the continental shelf.

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

This is linked to:

(i)      the protection and preservation of cultural property in a conflict zone and war, i.e. IHL; and

(ii)     illicit trafficking of art and antiquities.

The problem of illicit trafficking is further linked to:

(a)          organised crime;

(b)          money-laundering; and

(c)          terrorist financing.

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. 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.

The philosophical pillars of this theory, are two classical doctrines:

(i) obligations ‘erga omnes’; and

(ii) ‘jus cogens’.

Although it can be said that jus cogens rules consist of rules stipulating erga omnes obligations, it is not axiomatic that erga omnes obligations constitute jus cogens. While there is an overlap between: (i) obligations erga omnes; and (ii) jus cogens rules, the IHL principles and norms that can be derived from the nexus between these doctines in relation to Cultural Heritage suffer from a lack of scholarly formulation, defintion and classification. This is discussed in the author’s second essay.

The nexus between International Humanitarian Law (‘IHL’) and classical fiduciary theory

Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.

The intentional destruction of cultural heritage is an offence against humanity as a whole. Article II.2 of the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (17 October 2003) states:

‘For the purposes of this Declaration “intentional destruction” means an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law.’

In other words, the intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity and the dictates of public conscience.

While there are no rules establishing any particular consequences, the International Criminal Tribunal For The Former Yugoslavia emphasised in Prosecutor v. Jokić Case IT-01-42/1-S (Judgment) Trial Chamber (18 March 2004), paragraph 46, that in the interests of humanity as a whole:

‘since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site’.

Therefore, this may be considered as an aggravating factor in determining the length of any sentence in the prosecution of perpetrators.

‘The cultural heritage of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes its intangible heritage, which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. More generally, cultural heritage includes the expressions of the people’s spirituality, and the body of values which give meaning to life. Its characterization into different kinds (tangible, intangible, spiritual, etc), is simply descriptive and approximate, as one single piece of heritage may assume different meanings for a community, depending on the values it incorporates as perceived by the people concerned. For instance, a building which is considered of outstanding universal value – i.e. of exceptional significance for humanity as a whole – may at the same time have a special spiritual and social (intangible) significance for a given community, for which it greatly transcends the artistic architectural, aesthetic, and economic worth of the property concerned. It is exactly such a special spiritual and social significance which is usually targeted by the perpetrators of acts of intentional destruction of cultural heritage. Indeed, when they destroy a piece of cultural heritage, they demolish much more than an outstanding and irreplaceable object. They destroy the special – often spiritual – connection between that object and a human community, a fundamental element of the cultural and social identity of the latter, ultimately upsetting the community as such. The real target of most acts of intentional destruction of cultural heritage is therefore, not the heritage in itself but the human communities for which such a heritage is of special significance.’ The Oxford Handbook of International Cultural Heritage Law’, pages 76-78.

In the 16th century, the strategist and political philosopher Niccollo Machiavelli wrote that ‘he who becomes a master of a city accustomed to freedom and does not destroy it, may expect to be destroyed by it, for in rebellion it has always [been] the watchword of liberty and its ancient privileges as a rallying point, which neither time nor benefits will ever cause it to forget.’ (The Prince, Chapter V – ‘Concerning The Way To Govern Cities Or Principalities Which Lived Under Their Own Laws Before They Were Annexed.’)(1532). In other words, if you really want to destroy a people, its pride, it self esteem, and its sense of belonging to its own cultural identity, you need to destroy its cultural heritage (‘Machiavelli’s principle of survival’) [‘MPS’].

This reality has been denounced, much more recently by the United Nations Educational Scientific and Cultural Organization (UNESCO), affirming that ‘the loss of heritage during times of conflict can deprive a community of its identity and memory, as well as the physical testimony of its past. Those destroying cultural heritage seek to disrupt the social fabric of societies.” Intentional destruction of cultural heritage carries a message of terror and helplessness: it destroys part of humanity’s shared memory and collective consciousness: and it renders humanity unable to transmit its values and knowledge to future generations.’ 

‘Most recent cases of international destruction of cultural heritage have in common the circumstances that the target of perpetrators was not a particular community that they wanted to annihilate but rather the international community as a whole, with the exception of those who share their same ideals. As noted by Ana Vrdoljak, it is “cultural and religious diversity which the perpetrators find abhorrent and seek to expunge through such acts.” In all those cases, these crimes against culture assume the characterisation not only of crimes against persons but also and especially of crimes against the international community as a whole.’ The Oxford Handbook Of Cultural Heritage Law (2020), page 90.

The Second Protocol to the 1954 Hague Convention For The Protection of Cultural Property In The Event Of Armed Conflict enumerates five war crimes, known collectively as ‘serious violations’ of the Second Protocol, in respect of which States Parties owe a suite of obligations of suppression through their own or another willing States Party’s criminal law and courts.

In addition to the regime applicable to serious violations, the Second Protocol obliges States Parties to adopt such legislative, administrative, or disciplinary measures as may be necessary to suppress any use of cultural property in violation of the Convention or Second Protocol and any illicit export, other removal, or transfer of ownership of cultural property from occupied territory in violation of the Convention or Second Protocol.

Therefore, there is an unspoken connection between:

(i) the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation; and

(ii) genocide.

‘Fiduciary Principles of International Relations in a conflict zone – How can a Non-State Actor contribute to the mediation of: (i) a protocol for the preservation and protection of Cultural Heritage in accordance with International Humanitarian Law; and (ii) a peace process?

[This essay is an incomplete work in progress].

Introduction

The premise of this essay, is that viewing future conflicts through the hard geo-political lens of the international relations doctrine of Offensive Realism’, the rules of war under International Law (in particular under International Humanitarian Law [‘IHL’] are not an effective deterrent to the destruction of Cultural Heritage, because if an invading sovereign state is a hegemon/an aspiring hegemon [‘H‘], and the political logic underlying invasion is survival (i.e. because the political psychology of H is that it must dominate to survive), then achieving its political objectives requires the deliberate destruction of Cultural Heritage. This is based upon what the author calls, ‘Machiavelli’s Principle of Survival’ [‘MPS’] – see the author’s essay (above), a Fiduciary Theory of Art.

Furthermore, the Achilles Heel of IHL is that to prosecute a violation you must be able to prove that the destruction of e.g. a monument, church or library was deliberately targeted. Even if you could prove this intent, there is no international police force to deter the destruction of Cultural Heritage before it happens, i.e. IHL has no political, diplomatic or military teeth.

Because of the strategic significance and value of Cultural Heritage (which in the opinion of the author is often completely misunderstood by politicians, policy makers, diplomats and the military), is there a better way of deterring the destruction of Cultural Heritage in war?

The author argues that there is, and that as part of this vision:

(i) The protection of Cultural Heritage needs to be integrated into a grand strategy in confronting and defeating an enemy during war – not least because of the paradox that when the enemy destroys part of a shared Cultural Heritage, it is destabilising its own society, because it is destroying part of: (i) its own identity; and (ii) a historical legacy owned by its own people. Therefore, its own people will inevitably ask – ‘who and what are we fighting for – the survival of a political elite (‘them’) or ourselves (‘us’).’

(ii) There is an urgent need to explore innovative and practical mechanisms that will allow non-state actors (NSA’s), to ensure the sustainable protection of Cultural Heritage. This is linked to the use of ‘Cultural Heritage Diplomacy’ as an instrument in the mediation of a peace process and agreement.

The author concludes that:

(i) Universally recognised fiduciary principles for the protection and preservation of Cultural Heritage exist under IHL.

(ii) These fiduciary principles can cohere as an ethical foundation for:

(a) the development of an integrated strategic framework for the protection of Cultural Heritage in a conflict zone; and

(b) its implementation, though a process of humanitarian’ mediation – see my blog Cultural Heritage Safe Zones’Geopolitical Mediation – Diplomatic Law Guide

The author further argues, that as a matter of practical application, (i) and (ii) above are strategically linked to:

(iii) Principles for the peaceful resolution through a process of multilateral Cultural Heritage Diplomacy of the apparently irreconcilable conflict between:

(a) the ethical duty of a state and its government to behave as a ‘fiduciary of humanity’; and

(b) the political instincts and ambitions of H in an ‘offensive realism’ paradigm – i.e. their impulse to destroy cultural heritage and its symbols in order to suppress and indoctrinate by erasing the cultural memory of the people H is oppressing (see: John Mearsheimer – Offensive Realism in Brief | Genius).

(iv) The development of a unified and coherent international relations doctrine of Fiduciary Principled Behaviour’ – i.e. the political idea that states and governments can maximise their survival and gains through collaboration, instead of competition, because ‘competition’ leads to ‘confrontation’ which can result in war.

(v) The mediation of a process and protocol for the preservation and protection of Cultural Heritage in a conflict zone by a politically non-aligned non-state actor (‘NSA‘), as a foundation stone in the negotiation of a sustainable and enduring peace process and agreement, based upon recognition of shared values, interests, realpolitik, and practical ethics.

Therefore, this essay is about the author’s ‘Fiduciary Theory of Art’ (above) in action in a conflict zone, by engaging in a peace process through mediation.

Are fiduciary principles and norms underlying  IHL a tool in the negotiation of a peace process and agreement?

If fiduciary principles are a cornerstone of IHL, are they a potential negotiation tool in the mediation of a peace process and agreement?

As the author observed above, there is a tension between the:
(a)      common ground [‘CG’] represented by a shared cultural heritage (including a set of ethical, philosophical and religious values/beliefs); and
(b)      political ambitions and objectives [‘PA’] that drive military strategy in war.

A logical corollary of MPS, is that where CG exists between an invading state and an invaded state, that the invader must destroy part of itself in order to achieve its political objective(s). Analysing the psychology of an invasion through the lens of an ‘Offensive Realism’ paradigm (see Mearsheimer, John J. (2014) The Tragedy Of Great Power Politics), if an invading sovereign state is a hegemon/an aspiring hegemon), i.e. H, and the political logic underlying invasion is survival, i.e. because a hegemon must dominate, then there is a paradox because PA requires the destruction of CG. In other words, to achieve its political objectives, H must destroy part of itself.

Therefore, invasion may be a political mistake. The miscalculation is that instead of H becoming stronger it will actually weaken itself, because by invading a state with a shared cultural heritage, H will to an extent destroy its own cultural identity. If that happens then over time, institutionally H may become unstable and ungovernable, resulting ultimately in the political break-up of H. In other words, institutionally, the destruction of CG by H is an act of political self-destruction.

The existential question for H then becomes, how do they end the war without ending up being in a worse position than they were in before it, in order to:

(i) preserve the status quo within H itself; and

(ii) restore the balance of power (i.e. the status quo ante) between H and other hegemons and aspiring hegemons in the region/world, including H‘s political allies –  who may pursue their own self interest at the expense of H, if H becomes politically unstable, i.e. by annexing territory that H can no longer politically control, i.e. because its military capability and economy have been weakened.

If the author is right, then the calculus of risk by H is a dynamic that can influence a decision by H to end a war by positively engaging in mediation.

In other words, the fiduciary principles and norms that underly IHL are a tool in the negotiation of a peace process and agreement. Arguably, these principles are powerful tool, because violation, i.e. the impact of war on CG, may adversely affect public opinion within H and weaken support for the war.

When the political strategy of H is to create a failed state [‘FS‘], where it has failed in its primary objective to turn the invaded state into a client state, then the preservation and protection of cultural heritage in the invaded state, is arguably elevated to the level of being a threat to the national security of any other state in the region [S], because there is a risk of a failed state emerging within S‘s geo-political sphere of influence. If the destruction of CG has the potential to politically destabilise H, then it follows that S also has a national security interest in the survival of H.  Therein, and counter-intuitively, lies the seed of a principle that can result in the mediation of terms of peace which ensure the survival of both H and the sovereign state invaded by H. If this geo-political interest is recognised by all parties to the conflict and their supporters, then this can open up a dialogue which includes the use of cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement. This is where a politically non-aligned NSA can play an instrumental diplomatic and mediation role.

Universal ‘ethical’ values under IHL 

Whether IHL can bring warring P‘s together in an ‘offensive realism’ paradigm depends upon the answer to the following questions:

  • Do ‘universal ethical values’ exist under IHL, i.e. as ‘core fiduciary principles and norms’ [‘UV-IHL’].
  • What are these values – see below.
  • In the real world, are UV-IHL’s potential building blocks, in the Mediation of a peace process, protocol, and agreement – i.e. are they a sufficient basis for starting a ‘difficult’ conversation that can eventually transform attitudes and each P’s PD, resulting in the negotiation of a sustainable and enduring Peace Treaty.

Where CG exists, then the answer to the second question depends upon whether UV-IHL’s  align with H’s political interest in the preservation of CG, destruction of CG is ultimately an act on institutional self-destruction. So, in theory, because, by definition preservation of CG is common ground,  the door is open to Mediation through Cultural Heritage Diplomacy.

Whether a convergence of values can be diplomatically engineered through a process of Transformative Mediation involving a politically non-aligned NSA, depends upon what the causes and driving forces of a conflict actually are.

At the King’s College London School of Security Studies Annual Conference on the 8th and 9th June 2022, the author asked the following question –  ‘Is understanding what lies underneath competing narratives [‘N’] the key to mediation of a peace process in a conflict?’ i.e. can analysis of N reveal:

  • the philosophy and political doctrine driving a conflict on each side; and
  • (ii) psychological biases which are road-blocks in geo-political mediation?

The author drew the following conclusions from the comments made by the speakers in reply:

(i)      Mediation is not possible where H and the invaded P requires the destruction of the other,  i.e. when the values and interests underlying each N collide.

(ii)     Conversely, Mediation is possible where the ‘ethical values’ underlying each N potentially overlap, because they can potentially cohere.

(iii)    Where:

(a)     the claims made by H reveal value driven ‘choices made by the H State elite’; and

(b)     the elite is more than one man,

then the ‘collective’ thinking i.e. H’s political doctrine [‘PD’] will not change unless and until H’s state elite alter their PD.

The antithesis of ‘offensive realism’  is the idea of ‘solidarity’ between states, which to an extent is rooted in fiduciary principles and norms of behaviour under IHL. However logically, the concept is a grand ‘delusion’, unless this worldview is a strategic component of PD. Therefore, before undertaking a step in Mediation, a Mediator who is  a NSA [‘M’]  needs to first see the world through H’s eyes.

If the invaded P does not:

(i) understand H’s N; or

(ii) believe that the values which are the foundation of H’s N actually exist in the collective psychology of H‘s state elite, and are therefore deeply embedded in H‘s PD,

e.g. because P‘s intelligence gathering capability did not see or correctly interpret the signs of war before P was invaded by H – i.e. P did not forsee the conflict or beleive that it would happen, then Mediation is doomed from the start because P cannot see where the ‘rails’ of the underlying and causal political dispute actually lie, let alone the direction in which the train is going.

It is a cardinal principle of any Mediation that the Mediator must not make the situation worse. This principle applies to the Mediation of a geo-political conflict no less than it applies to a civil dispute. Therefore, M must rigorously analyse, probe and interrogate each N in order to  accurately see and understand the root causes of the conflict through the eyes of each P. Only then, will it be possible to explore and identify the existence of common ground, i.e. values (including UV-IHL’s i.e. because of CG) – which is why a process of Mediation can transform a conflict into a sustainable peace, provided H and P are actually ready to talk to each other through M. Therefore, CG is a potential catalyst of Transformative Mediation.

Principles & Norms of International Humanitarian Law in relation to Cultural Heritage

Although it can be said that jus cogens rules consist of rules stipulating erga omnes obligations, it is not axiomatic that erga omnes obligations constitute jus cogens. While there is an overlap, between: (i) obligations erga omnes; and (ii) jus cogens rules, the IHL principles and norms that can be derived from the nexus between these doctrines in relation to Cultural Heritage, suffer from a lack of scholarly formulation, defintion and classification.

The author’s classification is as follows: [To be researched & written].

Conclusion

In the opinion of the author, the protection of Cultural Heritage needs to be integrated into a grand strategy in confronting and politically defeating an enemy during war, in order to engineer a re-orientation of H‘s Political Doctrine.

The strategic aim would be to create doubt in the collective psychology of H‘s state elite, about the validity and relevance of the assumptions upon which H‘s PD is fundamentally based. PD is the foundation and driving force behind H‘s narrative. In the collective mind of H’s state elite N is therefore the political rationale for the conflict, because it is the singular moral driving force behind H‘s aggression. Where a conflict is primarily the result of a ‘clash’ of divergent values,  the solution, i.e. peace,  therefore hinges upon evolving a method of convergence. The author’s thesis, is that ‘universal ethical values’  which are the foundation of IHL can be applied through Mediation to reduce divergence by demonstrating compatibility. With some creative thinking, IHL can therefore be used to create a road-map for the negotiation of peace.

Art Restitution Litigation in the English Court’ 

[This essay is an incomplete work in progress].

Introduction

In this essay, the author discusses the jurisdiction and powers of the English court in relation to a civil claim for restitution of art and cultural heritage under the Tort of Conversion, brought by a person claiming title to a stolen artwork [‘SA‘] or object of antiquity, including patrimonial claims brought by a foreign state for repatriation of lost or stolen objects of cultural heritage. The author also discusses the potential availability of a limitation defence, which is linked to  extinction of the owner’s title under s.32 Limitation Act 1980.

These issues in an art and cultural heritage claims are related to: (i) the grounding of a claim in the High Court upon recognition of a foreign vesting law; (ii) the application of  English Rules of Private International Law (the ‘Conflict of Laws’), i.e. the application of a foreign substantive law under the Lex Situs rule; (iii) the doctine of renvoi and the potential application of a foreign limitation period; and (iv) the power of a judge in the Lex Forum (i.e. the High Court in London), to disregard foreign law on the grounds that it is offensive to English public policy.

The starting point in relation to a claim for conversion in the English court, is the application of the ‘Nemo Dat Quod Non Habet’ rule, to which there are both statutory exceptions, and rules that have  equivalent effect.

Status

‘Cultural property is, on occasions, treated differently from other categories of movable property. Whilst English law does not so distinguish in terms of sale of goods legislation, the import and export of cultural property, together with it’s illicit trade, is gaining more and more recognition. The importance of protecting our individual and universal cultural heritage transcends geographical and cultural borders and has led to conventions both on general and specific issues of cultural property. The introduction of a specific offence relating to cultural objects [under the Dealing in Cultural Objects (Offences) Act 2003] Shows the acceptance by the UK government of the need to target the illicit trade in such objects by considering provisions which are in addition to the existing theft and handling offences which apply to all property. … Some cultural objects may be considered to be national treasures whereby they possess an indissoluble link with the cultural history of a specific country. … The creation and preservation of cultural property can be a means of asserting one’s cultural identity and the destruction of cultural objects can be used as a method of oppression, particularly during armed conflict. … The deliberate destruction and theft of cultural property has dramatically increased in recent years, from the destruction of the giant Buddhas of Bamiyan By the Taliban in Afghanistan in 2001 and the looting of the Iraqi National Museum in Baghdad in 2003, to the systematic destruction carried out by the self-proclaimed Islamic state (ISIL/Da’esh) in Iraq, Syria and to a lesser extent Libya, since 2014, including the destruction of cultural items at the Mosul Museum, the bulldozing of the ancient Assyrian city of Nimrud, the destruction of the ancient fortified city of Hatra and parts of the UNESCO world Heritage site of Palmyra. Cultural artefacts have been destroyed as a means of cultural cleansing, while others have been looted, smuggled and sold on the black market, and used to finance terrorist organisations. … Particular works of art and other objects of cultural property will often be unique or in some cases of particular sentimental value to the owner. … It may be that an object is so unusual this is quite impossible to replace it with a like object or indeed to quantify the loss to the owner in monetary terms. … Where an owner has been dispossessed and brings an action in conversion, the unique nature of the object, will be a consideration for the court when deciding whether to make an order for specific delivery under the Torts (interference with goods) act 1977. On an international level, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995 is very much orientated in its restitutionary approach.’ [Extract from the course notes for Module 4 of the Institute of Art & Law Diploma in rt Law Course].

Ethics

Since 1984 there has been an increase in the guidance given to those working in the art world through the emergence of Codes relating to both the trade in art and to museums which house collections. However, as stated in Paragraph 102 of the Report of the Ministerial Advisory Panel on Illicit Trade (‘ITAP’) in 2000:

The weakness of the existing codes is their understandable focus on sectional interests or activities. They tend to run on separate (if parallel) lines and only rarely engage. In our opinion, much can be gained by a general and collective restatement of ethical principles, which seeks to reflect the interests of all relevant parties: not only trading entities but private collectors, museums and others. We also believe that there is a need for such a code to recommend that auction catalogues and dealers’ lists should as a general rule include provenances of the objects, as this will play a major role in allaying suspicion that such objects were illicit … We believe that the DCMS should take the lead in facilitating the formulation of such a statement and in encouraging Compliance. This could be undertaken as part of the campaign of education to raise awareness of these issues that we also recommend.’

Litigation Standing

In Bumper Development Corp Ltd v. Commissioner of Police of the Metropolis and others [1991], which concerned an action for damages and the delivery up of 12 bronze sculptures of the Hindu God Siva that were known as the Nataraja which had been unlawfully excavated from the ruins of a Hindu Temple in India in 1976, and then in 1982 been sold in London under a false provenance by a dealer to the Bumper Development Corp, who had purchased them in good faith,  it was necessary to consider whether a Hindu Temple, which had a recognised right to sue in India, also had the relevant locus standi in order to bring an action in England. The Court of Appeal Concluded that the temple was a juristic entity which could be recognised as such by the English courts, and decided that this was in accordance with the principles of the comity of nations.

Conversion

Under English law a person in possession of a chattel can bring an action in conversion against a person who wrongfully deprived him of that possession.

The Torts (Interference with Goods) Act 1977 provides:

s.1 Definition of “wrongful interference with goods”.

In this Act “ wrongful interference” , or “ wrongful interference with goods”, means—

(a)    conversion of goods (also called trover),

(b)    trespass to goods,

(c)    negligence so far at it results in damage to goods or to an interest in goods.

(d)    subject to section 2, any other tort so far as it results in damage to goods or to an interest in goods.

[F1and references in this Act (however worded) to proceedings for wrongful interference or to a claim or right to a claim for wrongful interference shall include references to proceedings by virtue of Part I of the Consumer Protection Act 1987 [F2 or Part II of the Consumer Protection (Northern Ireland) Order 1987] (product liability) in respect of any damage to goods or to an interest in goods or, as the case may be, to a claim or right to claim by virtue of that Part in respect of any such damage.]

s.3 Form of judgment where goods are detained.

(1)    In proceedings for wrongful interference against a person who is in possession or in control of the goods relief may be given in accordance with this section, so far as appropriate.

(2)    The relief is—

(a)    an order for delivery of the goods, and for payment of any consequential damages, or

(b)    an order for delivery of the goods, but giving the defendant the alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages, or

(c)    damages.

(3)    Subject to rules of court—

(a)    relief shall be given under only one of paragraphs (a), (b) and (c) of subsection (2),

(b)    relief under paragraph (a) of subsection (2) is at the discretion of the court, and the claimant may choose between the others.

(4)    If it is shown to the satisfaction of the court that an order under subsection (2)(a) has not been complied with, the court may—

(a)    revoke the order, or the relevant part of it, and

(b)    make an order for payment of damages by reference to the value of the goods.

(5)    Where an order is made under subsection (2)(b) the defendant may satisfy the order by returning the goods at any time before execution of judgment, but without prejudice to liability to pay any consequential damages.

(6)    An order for delivery of the goods under subsection (2)(a) or (b) may impose such conditions as may be determined by the court, or pursuant to rules of court, and in particular, where damages by reference to the value of the goods would not be the whole of the value of the goods, may require an allowance to be made by the claimant to reflect the difference.

For example, a bailor’s action against the bailee may be one in which the measure of damages is not the full value of the goods, and then the court may order delivery of the goods, but require the bailor to pay the bailee a sum reflecting the difference.

(7)    Where under subsection (1) or subsection (2) of section 6 an allowance is to be made in respect of an improvement of the goods, and an order is made under subsection (2)(a) or (b), the court may assess the allowance to be made in respect of the improvement, and by the order require, as a condition for delivery of the goods, that allowance to be made by the claimant.

(8)    This section is without prejudice—

(a)    to the remedies afforded by section 133 of the Consumer Credit Act 1974, or

(b)    to the remedies afforded by sections 35, 42 and 44 of the Hire-Purchase Act 1965, or to those sections of the Hire-Purchase Act (Northern Ireland) 1966 (so long as those sections respectively remain in force), or

(c)    to any jurisdiction to afford ancillary or incidental relief.’

In MCC Proceeds Inc v.  Lehman Bros International (Europe) [1998], Lord Justice Mummery stated,

‘Conversion is a common law action, tortious in form, imposing strict liability for a wrongful interference with the right to possession of a chattel. It consists of any act or wilful interference, without lawful justification, with any chattel in any manner inconsistent with the right of another, whereby the other is deprived of  of the use And possession of it.’

In Kuwait Airways Corporation v. Iraqi Airways Co (Nos 4 and 5) [2002], Lord Nicholls said that while it is almost impossible to formulate a single ‘precise definition of universal application’ regarding the tort of conversion, The general features of the tort were;

‘First, the defendant’s conduct was inconsistent with the rights of the owner. Second, the conduct was deliberate and not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods.’

A claimant [‘C’] in an action for conversion does not necessarily need to show ownership of the chattel in question. C must establish that they had possession, or an immediate right to possession of the stolen artwork [‘SA’] at the time of the conversion.

Patrimonial Claims

In Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2008](CA), the court addressed the question of ‘whether Iran needed to have taken Actual possession of the artefacts in Iran in order to recover them in England. Whether Iran needed to have possession depends on how it acquired ownership. If it acquired title by confiscation or compulsory process, then it cannot recover the property unless it first had possession. Where Iran did not have possession (as in this case), then it may recover the artefacts if its claim is not based on compulsory acquisition. The court concluded that Iran’s title was conferred by legislation – which the court called a ‘patrimonial’ claim, not a claim to enforce a public law or to assert sovereign rights – and Iran did not first have to have possession in order to enforce its claim in England. The court thus distinguished between recognition of a foreign nation’s ownership rights in property and enforcement of a foreign nation’s laws in British courts. British courts should therefore recognise Iran’s national ownership law as the basis for Iran to bring suit to recover its stolen antiquities. The court further held that even if Iran’s ownership law is a public law, British courts are not barred from enforcing such a law unless it is against public policy to do so. In judging public policy, the court stated:

“In our judgement there are positive reasons of policy while a claim by a state to recover antiquities which form part of his national heritage and which otherwise complies with the requirements of private international law should not be shut out by the general principle invoked by Barakat. Conversely, in our judgement it is certainly contrary to public policy for such claims to be shut out. … There is international recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities.”

The court then referred to international conventions to which the United Kingdom is a party, including the 1970 UNESCO Convention, the European Union’s Council Directive 93/7 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State, and the Commonwealth Scheme for the protection of the material cultural heritage. While acknowledging that none of these legal instruments was directly applicable to the outcome of this case, the court interpreted these as indicating the ” international acceptance of the desirability of protection of the National Heritage” and the need for mutual assistance among nations to protect thta heritage. The court further recognised that if actual possession were required before a nation could recover looted antiquities, as a practical matter such antiquities could never be recovered since such artefacts, by being looted directly from archaeological sites, are previously unknown and not part of a specific collection. The court thus concluded that it is British public policy to recognise the ownership claim of a foreign nation to antiquities that are part of its cultural heritage.’

[‘Schultz and Barakat: Universal Recognition of National Ownership of Antiquities’ by Patty Gerstenblith, Art Antiquity and Law, Vol XIV, Issue 1, April 2009, at pages 41 and 42].

Limitation Period

Sections 2 to 4 of the Limitation Act 1980, provide as follows:

‘2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

3. (1) Where any cause of action in respect of the conversion of a chattel has accrued to any person and, before he recovers possession of the chattel a further conversion takes place, no action shall be brought in respect of the further conversion after the expiration of six years from the accrual of the cause of action in respect of the original conversion.

(2) Where any such cause of action has accrued to any person and the period prescribed for bringing that action has expired and he has not during that period recovered possession of the chattel, the title of that person to the chattel shall be extinguished.

4. (1) The right of any person from whom a chattel is stolen to bring an action in respect of the theft shall not be subject to the time limits under sections 2 and 3(1) of this Act, but if his title to the chattel is extinguished under section 3(2) of this Act he may not bring an action in respect of a theft preceding the loss of his title, unless the theft in question preceded the conversion from which time began to run for the purposes of section 3(2).

(2) Subsection (1) above shall apply to any conversion related to the theft of a chattel as it applies to the theft of a chattel: and, except as provided below, every conversion following the theft of a chattel before the person from whom it is stolen recovers possession of it shall be regarded for the purposes of this section as related to the theft.

If anyone purchases the stolen chattel in good faith neither the purchase nor any conversion following it shall be regarded as related to the theft.

(3) Any cause of action accruing in respect of the theft or any conversion related to the theft of a chattel to any person from whom the chattel is stolen shall be disregarded for the purpose of applying section 3(1) or (2) of this Act to his case.

(4) Where in any action brought in respect of the conversion of a chattel it is proved that the chattel was stolen from the plaintiff or anyone through whom he claims it shall be presumed that any conversion following the theft is related to the theft unless the contrary is shown.

(5) In this section ‘theft’ includes:

(a) any conduct outside England and Wales which would be theft if committed in England and Wales: and

(b) obtaining any chattel (in England and Wales or elsewhere) In the circumstances described in section 15(1) of the Theft Act 1968 (obtaining by deception) or by blackmail within the meaning of section 21 of that Act:

and references in this section to a chattel being ‘stolen’ shall be construed accordingly.’

In De Preval v. Adrian Alan Limited [1997], Arden J (as he then was) Analysed these provisions in the following terms:

‘1. There is in general a six-year period allowed for bringing actions in conversion; section 2.

2. Where there are successive conversions (without the owner recovering possession), the six year period is deemed to run from the first conversion – section 3(1) – unless the plaintiff is the owner and the conversion sued on is a theft or a ‘conversion related to a theft’; section 4(3).

3. Title to a chattel is extinguished where possession is not recovered within six years of the date of the conversion from which time runs; section 3(2). (To calculate that date where there are successive conversions, see 2 above).

However, conversions which amount to theft or are ‘related to a theft’ are disregarded; section 4(3).

4. There is no period of limitation where the owner of a chattel sues a person who has stolen that chattel; section 4(1).

5. The rule laid down in section 3(1) that the time period for successive conversions runs from the date of the first conversion also does not apply if the conversion is ‘related to the theft’; Section 4(1).

6. The rules in 4 and 5 are qualified where the owner of a chattel brings an action following its theft. He cannot bring an action if he is lost title to the chattel – see 3 above – unless the theft or conversion related to the theft on which he relies occurred before time began to run so as to extinguish his title; section 4(1)(tailpiece). Once therefore a bona fide purchaser acquires the chattel, and six years has run from the date of his acquisition, the owner cannot sue a person  who acquires the chattel after the date of the bona fide purchaser’s acquisition, even if he is not himself a bona fide purchaser (he may be a purchaser with notice or a volunteer).

7. Any conversion which follows a theft before the owner recovers possession is treated as ‘related to the theft’ except a purchasing good faith or any acquisition subject to such a purchase; section 4(2).

8. There is a presumption that any conversion which follows a theft is related to a theft unless the contrary is shown; section 4(4).

9. Section 4 applies to theft wherever committed; section 4(5).’

Therefore, in an action for conversion of a work of art, the usual six year limitation period from the time of the accrual of the cause of action applies, s.2 Limitation Act 1980. The six year limitation period in conversion runs from the date of the conversion, rather than from the date when the owner became aware that the object was missing, or the date when he discovered its whereabouts or the identity of the converter. B. Policies at Lloyds v. Butler [1950]. Although a new tort is committed each time the SA changed hands, this does not have the effect of causing the limitation period to run afresh with each new conversion.

The Nemo Dat Rule

S. 21 Sale of all Goods Act 1979 (‘SGA 1979’) provides, ‘Subject to this Act, where goods are sold by a person who is not their owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.’ (The Nemo Dat Quod Non Habet’ rule).

Under 21(1) SGA, an individual who does not have title to the artwork, or does not have the authority or consent of the owner to sell it, cannot pass on any title to a purchaser.

A thief does not have title to a stolen painting and cannot confer title on an innocent purchaser.

Under the Nemo Dat rule, the mere fact that a person acquires a stolen object in good faith (whether directly from a thief or from some intermediate acquirer), cannot give the acquirer good title or extinguish the title of the original owner.

The original owner retains his immediate right of possession to the object and is entitled to sue in conversion, provided the action is not statutorily time-barred.

Therefore, an unsuspecting person [‘IP1’] who purchases the object from the thief will also commit the tort of conversion.

Exceptions

An innocent purchaser may in certain circumstances, escape the Nemo Dat rule, and thereby acquire title to goods and avoid any liability under the tort of conversion.

These limited exceptions also have the effect that the seller caught in the middle of a series of transactions, who gave good title under one of the exceptions, would not be liable under 12 SGA.

Therefore, not all of these exceptions apply to stolen art, i.e. because the seller came into possession of the artwork with the consent of the owner e.g. agency and sale by a mercantile agent.

The relevant exceptions in relation to stolen art are as follows:

(i) Under22 SGA 1979 (repealed by s.1 Sale of Goods (Amendment) Act 1994), an innocent purchaser of stolen art sold in market overt prior to 3 January 1995 acquires good title, provided the purchaser acted in good faith and without notice of the seller’s defect or want of title. Note that:

(a) An act is considered to have been done in good faith when it is in fact done honestly, whether it is done negligently or not.

(b) A trial judge will take account of various considerations when deciding whether the defendant’s own actions were in good faith.

(c) In relation to the art world, this may include the experience/sophistication of the particular party as well as the price paid for the goods in question.

(d) The court will look at the evidence to see if, from the purchaser’s point of view, everything appears to be above board.

(e) If this is the case, there is no need for the purchaser to enquire further.

(f) In contrast, if there are oddities about the transaction, then the purchaser is expected to ask for more details.

(ii) Overseas law appliable as the Lexis situs.

Under English rules of private international law, the lex situs governs the law relating to the validity and transfer of transactions in chattels.

If the English courts finds that the lex situs of the stolen artwork at the time it was sold to the defendant is a foreign law which recognises transactions that pass title in stolen chattels to a good faith purchaser, e.g. Italian law, then subject to five exceptions, the issue of whether the purchaser acquired good title under that foreign domestic law before the artwork was returned to the UK, will be decided by applying the the lex situs.

As an exception to the general rule that the limitation rules bar remedies rather than extinguish rights, 32 of the Limitation Act 1980 provides that where the cause of action in conversion has accrued and the limitation period has expired and within that period the owner did not recover possession, that the owner’s title is extinguished.

(iii) The limitation period (or prescription rules) of a foreign country can also affect the question of title, even if the object is currently in the United Kingdom, however this is subject to the constraints of public policy in accepting a foreign law. City of Gotha and Kuwait Airways cases.

The Lex Situs Rule

The validity of a transfer of a tangible movable and its effect on the proprietary rights of the parties thereto and those claiming under them in respect thereof, are governed by the law of the country where the movable is at the time of the transfer, the Lex Situs (Rule 118 Dicey and Morris Conflict of Laws 1993 Edn, p. 965) cited in the City of Gotha [1998].

Therefore, under English law, whether or not a purchaser of an artwork stolen in England and purchased abroad [‘P’] acquired a good title depends upon:

(i) the lex situs; and

(ii) whether the court can apply English law in place of a foreign law where the lex situs is offensive to public policy, e.g. because it favours a thief, which was posited in the City of Gotha.

The leading case is Winkworth v. Christies [1980], which was cited in The Islamic Republic of Iran v. Denye Berend [2007]. Winkworth concerned works of art which had been stolen from the claimant in England, and which were taken to Italy, and there sold under a contract made in and governed by Italian law. Under Italian law, by virtue of this contract, the purchaser had acquired good title to the stolen chattels. Following the sale, the artworks were then delivered to Christies in London for auction. The claimant sought a declaration that the works were at all times his property, thus entitling him to a right to immediate possession in order that he might successfully found a claim in conversion. It was held that the question of title fell to be determined by applying Italian law which was the lex situs of the transaction. Slade J. stated;

‘It is in my judgement abundantly clear from the authorities already cited that in appropriate circumstances, the court is prepared to follow the principle in Cammell v Sewell by applying the law of country A, in favour of a person who acquires title to personal property under the law of that country, even though the effect of such application is to destroy the proprietary rights of a former owner, who never himself possessed the property in country A and never consented, expressly or implicitly, to its going to country A.’

If the English courts finds that the lex situs of the stolen artwork at the time it was sold to the defendant is a foreign law which recognises transactions that pass title in stolen chattels to a good faith purchaser, then subject to five exceptions, the issue of whether the purchaser acquired good title under that foreign domestic law before the artwork was returned to the UK, will be decided by applying that foreign substantive law. Winkworth v. Christies Ltd [1980].

The five exceptions to the Lex Situs rule are:

(i) Where goods are in transit – which is not applicable on the facts.

(ii) Where a purchaser has not acted bone fide – which does not appear to be applicable on the facts.

(iii) Where the particular law of the situs is considered by the English court to be contrary to English public policy.

(iv) Where a statute in the lex forum (i.e. England) obliges the court to follow domestic law.

(v) Where special rules apply in relation to movables on bankruptcy or succession – which is not applicable on the facts.

The reasoning of the Judge in The Islamic Republic of Iran v. Denye Berend [2007] demonstrates the application of the relevant principles. The case concerned a fragment delivered to Christies in London purchased in good faith at auction in New York through an agent by a French domiciliary resident in France, which was delivered to her in Paris. The Hon Mr Justice Ready stated:

‘That as a matter of the English conflict of law rules, in determining the question of title to the fragment as movable property situated in France, there is no binding authority to the effect that English private international law will apply the renvoi doctrine as well as any relevant substantive provisions of French domestic law (thereby giving effect to a renvoi).

The modern approach toward renvoi is that there is no overarching doctrine to be applied, but it will be seen as a useful tool to be applied where appropriate (i.e. to achieve the policy objectives of the particular choice of law rule).

The nature of the policy considerations which come into play was addressed by Millet J in Macmillan v. Bishopsgate Investment Trust plc (No.3) [1995]. … The learned judge made the following observations,

“The determination of a question of priority between competing claims to property is based on considerations of domestic legal policy, since it involves striking a balance between two competing desiderata, the security of title and the security of a purchase. The decision by an English court, based on English principles of conflict of laws, that the question should be determined by the application of the rules of the foreign law is also based on considerations of legal policy, albeit at a higher level of abstraction. It involves a policy decision, at the higher level, that the policy which has been adopted, at the lower level, that English law should not be applied because the considerations which led to its adoption in the domestic law are not relevant to the particular circumstances of the case; and to a policy decision, at a higher level, that the policy which has been adopted, at the lower level, by the foreign law should be applied in its stead. In my judgement there is or ought to be no scope for the doctrine of renvoi in determining a question of priority between competing claims [to ownership of moveable property] … And in the absence of authority which compels me to do so – and there is none – I am not willing to extend it to such a question.”

As a matter of English law, there is no good reason to introduce the doctrine of renvoi.

[That] title to the fragment should thus be determined in accordance with French domestic law.

The general rule in French law is that title in respect of movable property should be determined by the Lex situs where the object was situated at the material time.

Since it is now conceded that, at all material times, the defendant acted in good faith, she would not appear to have any need to resort to any title by prescription.

She would be held to have acquired title by possession at the moment of transfer.

For that reason, I consider that the defendant is entitled to succeed.’

Does a new cause of action arise where P delivers the SA to a dealer in London [‘D’] for sale?

That will depend upon whether D was merely a bailee who took possession of the painting as P’s agent.

If D under the terms of a contract entered into with B, acquired any proprietary interest in the painting upon delivery of the chattel in London, then under 4(2) of the Limitation Act 1980, where the first conversion amounted to theft, time does not run against C until there was a good faith purchase of the painting unrelated to the theft.

‘Once … A bona fide purchaser acquired the chattel, and six years has run from the date of his acquisition, the owner cannot sue a person who acquires the chattel after the date of the bona fide purchaser’s acquisition, even if he is not himself a bona fide purchaser … Any conversion which follows the theft before the owner recovers possession is treated as ‘related to the theft’ except a purchase in good faith or any acquisition subject to such a purchase; section 4(2).’ Arden J in De Preval v. Adrian Alan Ltd [1997], on page 19 of the judgment.

Therefore, D will bear the onus of proof in establishing that either: (i) he acquired the painting in good faith from B more than six years ago [‘Issue 1’]; or (ii) that P purchased the painting in good faith before delivering it to him in London to sell [‘Issue 2’] .

In relation to Issue 1, the degree of probity required of D under 4(2) to prove that he had acquired a proprietary interest in the painting in good faith, is extremely high, with the courts taking into account D’s personal circumstances and expertise in order to determine whether or not the painting was acquired by him in good faith, De Preval v. Adrian Alan Ltd [1997] (the ‘De Preval Factors’).

In relation to Issue 2, in The City of Gotha [1998] Mr Justice Moses (as he then was) stated on page 97 of the judgment, ‘the conversion in this case followed the theft and was, therefore, related to the theft for the purposes of section 4. It does seem to be possible to identify, from that legislation, a public policy in England that time is not to run either in favour of the thief nor in favour of any transferee who is not a purchaser in good faith. The law favours the true owner of property which has been stolen, however longer period which has elapsed since the original theft.’

The definition of theft in 4(5) includes, ‘any conduct outside England and Wales which would be theft if committed in England and Wales.’

S.3 of the Theft Act 1968 provides,

‘(i)     Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

Where property or a right of interest in property is or purports to be transferred for value to a person acting good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.’

It therefore appears, that unless D can rebut the presumption under 4(2) of the Limitation Act 1980 that the purchase was related to the theft, then the carve-out provided for in s.4(2) (i.e. that ‘if anyone purchases the stolen chattel in good faith neither the purchase nor any conversion following it shall be regarded as related to the theft’) is not engaged.

In other words, unless D can prove that B acquired the stolen painting in good faith under English Law, prior to transferring it to him in London, that D will fail to discharge the burden of proof under 4(2) of the Limitation Act 1980.

Arguably, for this purpose, the court may apply the De Preval Factors to P at the time of the purchase in Italy.

In which case, the first good faith purchase following the theft of the painting in England, took place when the painting was delivered by P into D’s possession in London, and if this occurred less than six years ago, time is running under the Limitation Act for the bringing of a claim in conversion.

See also by blogs:

Applicable Law – Applicable law in an Art Authenticity dispute? | Carl’s Wealth Planning Blog

Copyright – Copyright protection of Art | Carl’s Wealth Planning Blog

Cultural Heritage Diplomacy – British cultural heritage diplomacy post-BREXIT | Carl’s Wealth Planning Blog

Deaccessioning – Deaccessioning of art & antiquities by a museum in breach of fiduciary duty | Carl’s Wealth Planning Blog

Does equity give teeth to international humanitarian law? – Does equity give teeth to international humanitarian law? | Carl’s Wealth Planning Blog

Moral Rights – Moral Rights of Artists | Carl’s Wealth Planning Blog

Protecting Cultural Heritage – Use of British soft power to protect Cultural Heritage in a conflict zone? – UK Review of Security, Defence, Development and Foreign Policy (March 2021) | Carl’s Wealth Planning Blog

Recognition of a foreign law asserting state ownership of antiquities – Recognition of a foreign law asserting state ownership of antiquities | Carl’s Wealth Planning Blog

The state as a fiduciary? – The state as a fiduciary? | Carl’s Wealth Planning Blog

Humanitarian Mediation – Diplomatic Law Guide

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog

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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

Sotheby’s v Mark Weiss Ltd & Ors [2020] EWCA Civ 1570 (23 November 2020): Sotheby’s v Mark Weiss Ltd & Ors [2020] EWCA Civ 1570 (23 November 2020) (bailii.org)

Fairlight Art Ventures LLP –v- Sotheby’s (Claimant) & others – YouTube

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/