Mediation of Art & Cultural Heritage Disputes

As a practising Barrister and Certified Mediator, I am developing Art and Cultural Heritage Litigation (including proceedings in the Intellectual Property Enterprise Court) and Mediation, as a niche practice area.

I qualified as a Certified Mediator in July 2021, and completed my required number of mediation observations between August and September. I have applied to the Society of Mediators for full accreditation and panel membership, and am attending the Zoom Mediations (i.e. controls) course they provide, in January 2022. Please note that I will be conducting all pre-mediation meetings, and mediations by Zoom from my home office in Leicestershire.

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’.

I am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law.

The provisional title of my three Diploma essays, which I am planning to write during the second half of 2022 is:

  • ‘Art Litigation in the Intellectual Property Enterprise Court: jurisdiction; powers; practice; and procedure.’ 
  • ‘Multi-jurisdictional claims and PIL in art and cultural heritage litigation: characterisation of claims; applicable law; jurisdiction; and the doctrine of forum non-conveniens.’
  • ‘The doctrine of Sovereign Immunity in art and cultural heritage litigation.’

See also my blogs:

Applicable Law – Applicable law in an Art Authenticity dispute? | 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

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

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

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

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

ADR is the norm

In Art and Cultural Heritage disputes ADR is the norm.

Furthermore, civil litigants in England and Wales can lawfully be compelled to use alternative dispute resolution (ADR), according to a new report by the Civil Justice Council. See:

Mandatory (alternative) dispute resolution is lawful and should be encouraged: Mandatory (alternative) dispute resolution is lawful and should be encouraged | Courts and Tribunals Judiciary

Compulsory ADR: Civil-Justice-Council-Compulsory-ADR-report-1.pdf (judiciary.uk)

A move towards compulsory ADR? (newlawjournal.co.uk)

Art disputes

In an art dispute, the court will apply the preponderance of evidence standard.  The judicial function is not to find an absolute truth but merely a preponderant truth. 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 upon expert evidence, without having the requisite skill and knowledge to evaluate and critically assess such evidence. Consequently, in a misattribution dispute, instead of rendering a judgment based upon the experts’ arguments substantiating a specific attribution,  a judge may decide that a specific expert is more eminent and established, and consequently that expert’s attribution will prevail.

In a breach of duty claim against an auction house, the diligence test applied by English courts is based upon a fiction – the reasonable auctioneer who uses adequate care in the execution of his duties and obligations. This has two drawbacks. The first is when no expert consensus existed at the time of a wrong attribution. The second, is the circularity and contingency of scholarship, exposing attributions to divergences amongst scholars and to continuous change.

Cultural Heritage Disputes

To the extent that geography is a military and political constraint, cultural heritage is a third dimension that is part of the equation in resolving a geo-political dispute. Critically, it allows for the application of fiduciary principles in the negotiation of a sustainable peace. These principles have a provenance that stretches back to antiquity.

In cultural heritage disputes there is a philosophical and legal nexus between the existence of ethical standards and norms of behaviour in relation to antiquities and cultural heritage (which includes landscape). 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.

My 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 under private law 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’] (including an underwater site). If P 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; 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)      international humanitarian law;

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

(iii)     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.

That is why mediation is a powerful tool in cultural heritage diplomacy, and at its centre are ‘norms’ of behaviour, which theoretically apply with equal vigour to private law claims, i.e. there  is a bridge between public international law claims, and private law claims when art becomes cultural heritage. That bridge is the fiduciary doctrine of Jus Cogens.

See also by blogs:

The state as a fiduciary? – The state as a fiduciary? | 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

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

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

and the ‘Humanitarian Mediation’ page at www.diplomaticlawguide.com

Humanitarian Mediation – Diplomatic Law Guide

Contentious probate disputes and the Art world

If you are wondering what the connection is (and there are many), between contentious probate disputes and the Art world, consider the following claim made against Sotheby’s for a ‘sleeper’ (i.e. work of art that is unrecognized, whose true nature has not yet been revealed and is ’dormant’). Ernest Onians, a British businessman and art collector, bought a painting at a country house auction in the 1940s which he stored in a chicken shed. He thought it was the ‘The sack of Carthage’ by the Italian artist Pietro Testa (1611-1650). Following his death, the painting was presented to Sotheby’s, by which time it was covered by a thick layer of dust and dirt, but was otherwise in good condition. The auction house offered the painting for sale attributing it to Pietro Testa with an estimate price range of £10K-15K. At the auction the painting reached a hammer price of £155K. Leading art historian Denis Mahon advised the winning gallery that the auction house had potentially misattributed the painting as it might be a work by the French master Nicholas Poussin (1594 to 1665). After the sale the painting underwent restoration for two years after which Mahon and the director of the Louvre Museum, Pierre Rosenberg, confirmed that the painting was indeed by Poussin and once owned by the Cardinal Richelieu. In 1998, the gallery sold the painting under its accurate attribution title, ‘The destruction and the sack of the temple of Jerusalem’ to the philanthropist Jacob Rothschild and the Rothschild Foundation for £4.5 million. Dismayed by the significant undervaluation, Onians’ heirs brought suit against Sotheby’s, which the parties ultimately settled for an undisclosed amount. Please note that nearly all such cases settle in negotiation or through mediation. The difference between £4.5 million and £155K = £4,345,000.

‘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 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. When a sleeper is offered 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. [In other words a sleeper is] an artwork or antique that has been undervalued and mislabelled due to an expert oversight and consequently has 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.’  The sale of misattributed artworks and antiques at auction by Anne Laure Bandle (2016).

Sleepers are often Old Master drawings and paintings. Sleepers are often Old Master drawings and paintings. Determining the attribution of Old Masters is challenging, because they are often unsigned. Authentification is also difficult, because at the time of creation, pupils and assistants may have been working closely with the Master painter.

An example of the importance of properly dating consigned antiques is a jug given an estimated price range of £100-£200 by a regional auction house, which was sold to an anonymous buyer for £220K, and following cancellation of the sale, was consigned at Christie’s and sold for its new estimate of £3 million. The regional auction house had not spotted that the crystal ewer originated from the early high Middle Ages. Christie’s described it as ‘a carved rock crystal ewer made for the court of the Fatimid rulers of Cairo in the late 10th or early eleventh century.’ Holy grail’ jug they valued at just £100 is sold for £3m | Daily Mail Online

Bibliography

Andrews, Neil, Andrew Tettenborn and Graham Virgo (2020). Contractual Duties: Performance, Breach, Termination, And Remedies. Sweet & Maxwell.

Bandle, Ann Laure (2016). The Sale Of Misattributed Artworks And Antiques At Auction. Edward Elgar Publishing.

Berstein, Robby (2013). Economic Loss. Third edition. Sweet & Maxwell.

Boesch, Bruno, and Massimo Sterpi (2016). The Art Collecting Legal Handbook. Thomson Reuters.

Boisson de Chazournes, Laurence, Marcelo Kohen and Jorge Vinuales (2013). Diplomatic and Judicial Means of Dispute Settlement. Martinus Nijhoff Publishers.

Bridge, Michael, Louise Gullifer, Kelvin Low, and Gerard McMeel (2018). The Law of Personal Property. Sweet & Maxwell.

Catsambis, Alexis, Ben Ford, and Donny L.Hamilton (2020). The Oxford Handbook of Maritime Archaeology. Oxford University Press.

Chechi, Alessandro (2014). The Settlement Of International Cultural Heritage Disputes. Oxford University Press.

Criddle, Evan, Evan-Fox Decent, Andrew Gold, Sung Hui Kim, and Paul Miller (2018). Fiduciary Government. Cambridge University Press.

Criddle, Evan, Paul Miller, and Robert Sitkoff (2019). The Oxford Handbook of Fiduciary Law. Oxford University Press.

D’Alleva (2012). Methods & Theories Of Art History. Second Edition. Laurence King Publishing.

Dromgoole, Sarah (2014). Underwater Cultural Heritage and International Law. Cambridge University Press.

DuBoff,Leonard, Christy King, and Michael Murray (2017). Art Law in a nutshell. West Academic Publishing.

Durbach, Andrea and Lucas Lixinski (2019). Heritage Culture And Rights – Challenging Discourses. Hart.

French, Duncan, Matthew Saul and Nigel White (2012). International Law and Dispute Settlement – New Problems and Techniques. Hart Publishing.

Finn, Paul (2016). Fiduciary Obligations – 40th Anniversary Republication with Additional Essays. The Federation Press.

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Hollis, Duncan (2014). The Oxford Guide to Treaties. Oxford University Press.

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Jaffey, Peter (2007). Private Law and Property Claims. Hart Publishing.

Jones, Michael (2016). Art Law – A Concise Guide For Artists, Curators, And Art Educators. Rowman & Littlefield.

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McGhee, John (Editor) (2020). Snell’s Equity. 34th Edition. Sweet & Maxwell Ltd.

Meagher R P, J.D. Heydon, and M.J. Leeming (2014). Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies 5th ed, Lexis Nexis Australia.

Miller, Paul, and Matthew Harding (2020). Fiduciaries and Trust – Ethics, Politics, Economics and Law. Cambridge University Press.

Nair, Aruna (2018). Claims To Traceable Proceeds – Law, Equity, and the Control of Assets. Oxford University Press.

McBride, Nicholas J (2018). The Humanity of Private Law – Part I: Explanation. Hart Publishing.

McBride, Nicholas J (2020). The Humanity of Private Law – Part II: Evaluation.

McBride, Nicholas J, and Sandy Steel (2018). Great Debates in Jurisprudence 2nd ed. Palgrave Macmillan.

McFarlane, Ben and Charles Mitchell (2015). Hayton and Mitchell: Text, Cases and Materials on the Law of Trusts and Equitable Remedies. Sweet & Maxwell Ltd.

Miller, Paul and Matthew Harding (Editors) (2020). Fiduciaries and Trust  – Ethics, Politics, Economics and Law.

O’Keefe, Patrick (2014). Shipwrecked Heritage – A Commentary On The UNESCO Convention On Underwater Cultural Heritage. Institute of Art & Law.

O’Keefe, Patrick (2017). Protecting Cultural Objects: Before And After 1970.

Palmer, Norman (2015). Art, Adventure and Advocacy – Contract, Claims and Controversies in the World of Cultural Property. Institute of Art & Law.

Pearce, Robert and Warren Barr (2018). Pearce & Stevens’ Trusts and Equitable Obligations. 7th edition. Oxford University Press.

Preziosi, Donald (2009). The Art of Art History – A Critical Anthology. Oxford University Press.

Prowda, Judith (2017). Visual Arts And The Law. Sotheby’s Institute Of Art.

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Smith, Gordon, and Andrew Gold (2018). Research Handbook on Fiduciary Law. Edward Elgar Publishing.

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Worthington, Sarah, Andrew Robertson, and Graham Virgo (2018). Revolution And Evolution in Private Law. Hart Publishing.

Zhong, Hui (2018). China, Cultural Heritage, And International Law. Routledge.

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

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/