Art & Antiquities crossing borders. Whose law wins?
A fascinating seminar hosted by London law firm Maurice Turnor Gardner LLP on April 29 invited legal experts to consider issues arising out of the seizure and return to Iran of the Persepolis fragment in 2017 and 2018. Subscribers can read the background to the case in the Art Newspaper.
What the panellists were there chiefly to debate was conflicting jurisdictions and how to negotiate them. Although at least one of the panellists, Fionnula Rogers (Consultant lawyer in the art and cultural property group at Constantine Cannon and Chair of UK Blue Shield) argued that although the UK courts could have become involved, essentially the case initially appeared to put the Quebec civil code and New York State law on a collision course.
Alexander Hermann, Assistant Director of the Institute of Art & Law, argued that under the former, clear title is likely to have passed to the Montreal Museum of Fine Arts in 1951, thence to AXA Fine Art in 2014 and so to the dealers Rupert Wace and Sam Fogg in 2016. If that law had prevailed, there would have been no case to answer. However, under New York State law, because there is no statute of limitations for theft, title would never have passed from Iran, hence the seizure by the Manhattan District Attorney’s office when the relief was sent for display at TEFAF New York in 2017.
Setting any public disputes about who knew what and when in the process of the dealers consulting academics on the status and history of the relief fragment, and the fact that it had been publicly displayed in the museum and then at fairs in London and the Netherlands over a period of decades, Rogers noted that Iran may have waited to act until it was sent to New York because the chances of a successful legal outcome would have been greater there than elsewhere.
She cited an example where the owner of another disputed piece won her case in London because the UK court had decided to apply French law rather than Iranian law. This was because the disputed piece had been sold in France, under the application of whose law in her case she had acquired title regardless of the original theft contrary to Iranian law.
Dealers volunteered to return the relief fragment
In the end, the 2017/18 New York case never concluded as the dealers voluntarily ceded the relief fragment to Iran in the face of clear evidence of its being located in Persepolis after Iran’s 1930 cultural protection law would have prevented its legal export without official sanction.
However, as the panellists also noted, just as interesting were the arguments over the levels of due diligence carried out by the dealers. While this had been extensive, the DA’s office argued that it had been insufficient under New York standards, even though the transaction in which the dealers had acquired it had taken place elsewhere. Was it reasonable to have expected the dealers to have taken into account many or all other jurisdictions across the world in approaching due diligence at the time of buying it, Rogers asked. She suggested that although many countries have still not ratified the convention, UNIDROIT’s standards here might well help.
Also of interest was the role of the Oriental Institute in Chicago, among whose digital files the relevant photos of the fragment in situ in Persepolis eventually surfaced.
Wace and Fogg had been criticised for not checking the archive properly. However, as Rogers pointed out, when the Oriental Archives reported the 2011 theft from the Canadian museum, they themselves did not make the connection between the relief fragment and what was in their archives even though they were in the process of digitising them at the time. And it was also noted that the time and effort required to source the images in the archive was not as simple as had been assumed.
Rogers, Hermann and their co-panellist, Ed Powles, Partner and Head of Art & Heritage at Maurice Turnor Gardner, then looked at what the trade could do to avoid being caught up in these complex situations of conflicting laws. Hermann advised buyers and sellers to protect themselves with contractual clauses covering warranties of title and implied warranty of quiet possession. Rogers suggested adding a warranty of marketable title to cover situations where any challenges could delay or interfere with transactions, while all three agreed that contract terms should stipulate whether they applied to just the jurisdiction of the transaction or other jurisdictions as well. Title insurance would also be a good idea, advised Hermann.
Powles argued that the relief fragment case showed that title may not always be the robust concept that it sounds and that there is no universal concept of title.
Moral and ethical arguments took precedence
Ultimately, moral and ethical considerations overtook any legal arguments in returning the relief fragment, they agreed, but along with the changing cultural heritage landscape globally, the case pointed to the need for clarity on what constitutes reasonable due diligence across jurisdictions.
Hermann stressed that increasing regulation, such as the European Union’s new import licensing laws, would have prevented such a case arising today because it would not have been possible to import the relief into the EU (including the UK at the moment, which has enacted part of the law) without an export licence or clear evidence showing legal export from Iran.
Powles concluded that we have reached a point in time where different standards may start to apply as cultural heritage issues increasingly occupy stage centre in the political and legal sphere.
Rogers approved of UNESCO’s recent pledge to work more closely with the market in search of solutions as a more constructive way forward.
The seminar was especially successful at showing in microcosm the frequent flashpoints between the market, countries of origin, academics and others as they argue over conflicting rights.
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