by ADA | Sep 23, 2026 | Views |
For years now, the art market’s trade associations and campaign groups have looked on with frustration and horror as the Manhattan District Attorney’s office has set about dismantling much of the New York trade. Collectors, dealers and museums within the city and far beyond have also lost their property and faced the intimidatory tactics of Assistant District Attorney Matthew Bogdanos and the Antiquities Trafficking Unit (ATU) in their crusade to seize cultural objects and hand them back to their countries of origin.
Much of the time, these seizures and handovers have shared a single feature: the lack of proof that the objects in question were illicit. What evidence may have been available to the authorities has seldom been shared with the public who pay for the ATU, even on request.
Instead, the threat of criminal prosecution, together with the knowledge that even if they prove their innocence they must still pay all the substantial costs involved, have persuaded those targeted to yield up their possessions to the authorities, leaving the ATU’s tactics unchallenged.
Beyond the seizures themselves, further concerns have arisen over the fate of artefacts, such as when the DA’s office proudly handed back a series of Tibetan items – not to Tibet but to its occupying oppressor, China.
Now, as the New York Times and expert cultural property lawyers have reported, the ATU’s inquisition may be over – at least for the moment.
Art Institute of Chicago proved the vital catalyst
The catalyst was the Art Institute of Chicago’s (AIC) decision not to cave in to the ATU’s demands but to fight back instead.
It went to appeal over a 2023 court decision to allow the seizure of a drawing by the artist Egon Schiele from its collection as a suspected Nazi-looted artwork.
The seizure was not based on proof of the drawing being illicit, but on claims from the heirs of the original owner coupled with what has been an effective legal loophole that paved the way for more than 100 such seizures by the ATU under Bogdanos.
The New York Intermediate Appeal Court gave no view as to whether the drawing was illicit or not but ruled that the ATU’s means of justifying the seizure – the legal loophole – were not valid.
That loophole is New York Criminal Procedure Law § 690.10 and New York Penal Law § 450.10. Law § 690.10 requires reasonable cause to believe the item under question is stolen or otherwise unlawfully possessed to justify seizure, which did not apply in this case, according to the Intermediate Appeal Court. As Cultural property lawyer Nicholas M. O’Donnell, who spoke to the NYT on the matter, explained in his nicksartlaw substack article, “Section 450.10 concerns property seized in connection with a criminal proceeding where ‘satisfactory proof of title’ can be shown”. In this case, such undisputed title could not be shown, and no criminal proceedings were involved.
Ownership rights disputed in the Schiele case
“The ATU and DA have long taken the view that ‘a civil-like proceeding’ may be carried out—with or without a pending criminal case—in order to ‘return’ the paintings to the ‘rightful owners’,” writes O’Donnell. “To do so, the ATU would apply to the criminal court for a turnover order, usually supported by a waiver by the current owner.”
Although the definition of ‘rightful owners’ can be highly subjective, this tactic has worked until now because, as explained above, the ATU’s targets have rolled over when faced with the possible prospect of criminal proceedings, leaving that prospect untested. The AIC effectively called Bogdanos’s bluff, and the Intermediate Appeal Court ruling is the result.
In the case of the Schiele, ownership rights are disputed, and the justification for its seizure and return to the heirs of the original owner is not clear, because it is claimed that title was transferred legally to the owner’s sister-in-law, and the drawing was disposed of later.
As O’Donnell goes on to explain, “The DA is wrong about the scope of Section 450.10. As the Appellate Division notes, ‘Penal Law § 450.10(5) was designed to provide an expedient means for the return of stolen property to the readily identifiable owner of that property; it was not designed to address complicated, disputed issues of ownership. Thus, Penal Law § 450.10 does not provide for adjudication of disputed property rights.’ This eliminates the vast majority of the ATU’s activity.”
O’Donnell also notes that with no associated criminal case (as well as the doubt over dispute over legal ownership) no criminal justification exists for the seizure.
Welcome check on reversing the burden of proof
“As a result, many of the kinds of retrievals the DA has secured in the past where he alleged only absent ‘conspirators’ or gaps in provenance information can no longer be brought.”
From the Antiquities Forum’s (IADAA and the Antiquities Dealers’ Association) perspective, the ruling is particularly important because it acts as welcome check on the spread of the reversal of the burden of proof, an insidious and highly questionable ‘ethical’ trend to assume guilt unless innocence can be proved. This may be convenient for the authorities in cases involving property where provenance is very often incomplete, such as with ancient art, but it has frightening implications for the long term interests of justice and human rights.
The DA’s office is currently keeping its own counsel on what to do next, and the Intermediate Appeal Court ruling may be subject to appeal itself – cultural property lawyer Michael McCullough also posting on Linked In sees this as inevitable.
O’Donnell is clear on the current outcome, calling the ruling “a deserved rebuke in a case that should never have been brought” that “may spell the end of the Manhattan District Attorney’s so-called Antiquities Trafficking Unit as we know it”.
Having said that, ADA Bogdanos is a highly determined individual, and it would be foolish to underestimate his resourcefulness. Nevertheless, this decision has been a sorely needed reassurance that museums, collectors and the trade do have rights under the law, and the courts will back them where justified. As McCullough posted: “The court was particularly concerned that AIC had been deprived of the protections ordinarily available in a civil action.”
by ADA | Jul 28, 2026 | Uncategorized, Views |
After five years of dialogue, UNESCO has finally published its revised Code of Ethics for the international art market. The idea is that it should set improved standards of conduct that follow the latest ethical guidelines to protect national interests and prevent crimes such as looting and trafficking.
The Code is currently voluntary. Will it work?
The approach, tone and lack of precision leave it facing an uphill struggle to convince market professionals that it will also protect their interests.
The problems start in the first sentence: “Members of the trade in cultural property recognise the key role that trade has traditionally played in the dissemination of culture and in the distribution to museums and private collectors of foreign and domestic cultural property for the education and inspiration of all peoples.”
Yes, the trade does recognise this, but the question is whether UNESCO recognises it. No acknowledgement here.
Sentence two brings its own issues: “They [the trade] acknowledge the worldwide concern over the illicit trafficking of stolen, illegally alienated, clandestinely excavated and illegally exported and imported cultural property, in line with the MONDIACULT 2022 Declaration, and accept the following principles of professional practice intended to safeguard cultural property from criminal activities.”
Risk of undermining human rights
What does ‘illegally alienated’ mean in this context? No explanation appears. And the assumption that the trade falls in line with the Mondiacult 2022 Declaration is misguided. That Declaration makes a commitment to return cultural property to its countries of origin even if it was not removed illegally. The Declaration makes assumptions about ethics in relation to cultural property that are based on questionable current trends in ideology rather than a broader, long-standing moral and common-law principle. For instance, it stresses the importance of human rights but then sets out to undermine those rights when it comes to the private ownership of cultural property, by demanding an end to transactions where provenance documentation is incomplete. It appears to call on UNESCO to act beyond its remit.
The whole approach to how the trade should adopt and commit to the Code is unsettling. Far from being constructive and persuasive, the tone is menacing and manipulative. Traders who voluntary abide by the Code “should be recognised as having committed themselves to a set of professional standards”. This is unnecessary in the case of those who have already done so in becoming members of trade associations that have codes of practice – a stricter commitment than that required by a code of ethics.
Likewise, “Traders who have decided to abide by the principles of the Code will submit a declaration to that effect to UNESCO, as well as to their professional association. Professional associations of traders that support UNESCO in promoting their members’ compliance with the principles of the Code will submit a declaration to that effect to the UNESCO Secretariat.”
None of this sounds voluntary.
What a ‘living document’ might mean
What happens if they follow these directions? How long before UNESCO leverages this position to try to enforce its Code as national and international law by the back door?
The trouble with such declarations made in this way – and mentioning that they have consulted the art market – is that it suggests that the Code enjoys trade endorsement, which it doesn’t. Nor is it workable. The danger is that decision-makers will believe otherwise. And so the bar is raised ever higher, making trade professionals’ daily lives impossible.
Further enhancement along these lines seems likely in the context of Member States emphasizing that the Code should be considered as a ‘living document’, with UNESCO periodically assessing it with ‘relevant stakeholders’ to ensure its continued relevance in light of evolving challenges related to trafficking. This is nothing less than a blank cheque. It is not fair to ask the market to sign up to this.
Principle 1 distinguishes “illegally alienated” cultural property from that which may have been stolen… clandestinely excavated or illegally exported or imported. But what does illegally alienated mean here? As can be seen from the Member States’ caveat above, the goalposts are ever on the move. Goods legally sold and exported years ago are now being deemed national property and illicit in domestic law as nations update their cultural heritage legislation in ever more restrictive ways. Under the Code, this might well render such goods illicit internationally, even when they have been legally traded and owned privately for lengthy periods, and so might be subject to confiscation.
While Principle 2 reasonably commits traders to recording transactional information such as the identity of suppliers, any attempt to use that as a stepping stone to force them to reveal confidential information protected by contractual obligations would cause serious problems. This would be possible under a ‘living document’.
Further lack of clarity over terms
Principle 3 commits traders to conducting ‘proper’ due diligence without fully stipulating what that constitutes. Again it talks of ‘illegally alienated’ items, as well as checking “any other relevant information and documentation which they can reasonably obtain” and scrutinising ICOM Red Lists. What does ‘reasonably obtain’ mean? If due diligence is too burdensome, it would render much of the lower end of the market uneconomic. What measures have been put in place to prevent that?
Principle 4 describes a trader’s ‘reasonable cause’ to believe that an item might be illicit and what their commitment must be under those circumstances but does not define ‘reasonable cause’ in this context.
Principle 4 also states: “A trader who is in possession of the item, where that country seeks its return within a reasonable period of time, will take all legally permissible steps under the trader’s applicable national law to co-operate in view of the return of that item of cultural property to the country of origin.” This appears to commit a trader to return an item simply on the basis of a claim, regardless of whether or not they hold the item lawfully. Long experience has shown that countries of origin claim items whatever their status, so without qualifying that the item must be illicit, the Code would prove unacceptable to the market. Such a catch-all condition would also be inconsistent with pre-existing national or international laws or conventions, such as statutes of limitation endorsed by UNESCO 1970 and UNIDROIT 1995 which are routinely ignored.
Principle 5 repeats the demands of Principle 4, putting the burden on the trader to ensure the item is returned.
No clause addresses the rights of the traders.
An opportunity missed
In recent years, art market stakeholders have been included in discussions about the drafting of the Code, but in the final two meetings earlier this year, CINOA, the global trade federation representing 5,000 dealers – the largest trade group in the world and the vital market stakeholder – was inexplicably not invited to attend. How did that happen?
UNESCO’s new Code of Ethics is an opportunity missed. It appears to blur the line between ethical aspiration and legal requirement. It should have been drafted as a constructive agreement between stakeholders to improve standards and create more clarity; instead its tone and terms appear intimidatory and opaque. It is inconsistent with the laws of numerous countries in relation to property rights and good faith purchases. Market stakeholders approached this initiative in good faith. The result is far from what they could agree to.
by ADA | Jun 25, 2026 | News |
Antiques Trade Gazette has just published an excellent guide to permissions regarding non-European Union goods returning to the EU with a three-year period.
Following clarification from the European Commission, legal columnist Milton Silverman confirms that these goods do not need an import licence or statement if they have been in free circulation within the EU, are exported from the EU and then return there within a three-year period. Importantly, the item does not have to return to the same person or EU member state from which it was exported.
The article sets out a case study where a Belgian collector who understood the rules came up against a shipper who did not. While the rules may now be clear, ensuring that customs enforcement and others involved along the way are fully conversant with the rules is another matter.
Silverman adds information relating to duty relief and VAT, as well as the rights and process of appeal if customs do not honour the three-year rule.
by ADA | Jun 24, 2026 | Uncategorized |
Out now for almost six months, the World Customs Organisation’s latest Illicit Trade Report (ITR) covers the year 2024. The introduction hails the report as offering “a comprehensive analysis of the dynamics and evolving trends of illicit trade. This edition underscores the complexity and adaptability of transnational criminal networks, highlighting impacts on public safety, global security, and sustainable development.”
So what does the highly detailed and analytical 305-page report have to say about cultural property crime?
Very little indeed.
On page 23, a bar chart provides The Number of Responses to the WCO Seizure Statistics. These appear to refer to the number of customs forces who have replied to a WCO survey asking for the number and volume of seizures in their jurisdiction. Responses concerning cultural goods rose from around 29 to 33 year-on-year to 2024.
A bubble chart on the following page appears to show a 75% rise in the number of cases involving cultural goods with a rise in the volume of goods seized somewhere below 5%. However, it also shows that the volume is tiny compared to any other form of illicit activity except for Explosive Precursors – chemicals that can be used in the creation of explosives.
On the following bubble chart showing year on year trends, cultural goods do not appear at all.
Chart 4 on page 26 illustrates priorities by commodity, with Cultural Goods listed as an Essential priority for around four out of 70 Customs administrations – the lowest score for any commodity. Around another eight administrations see it as a High priority, again the lowest score, and by some distance compared to most other commodities. These ratings remain almost unchanged from 2023, as the next bar chart shows us on page 27.
The attraction of fungible items
A key consideration making commodities attractive for money laundering is their fungibility, according to the introduction to the chapter on ML on page 37: “…the majority of these cases involve the illicit movement of bulk cash, but also include significant quantities of gold, rhodium, silver, and precious stones, including diamonds. These materials, due to their high value-to-weight ratio, fungibility, and ease of transport, remain attractive to criminal networks seeking to transfer or launder proceeds across borders while evading detection.”
As readers will know, a distinctive feature about artworks and antiquities is that they are not fungible.
Much of the Money Laundering and Counter Terrorism Financing chapter is dedicated to currency and gold smuggling – by far the biggest problem it identifies when it comes to ML, with an additional issue involving agricultural equipment in Brazil.
Saudi Arabia, Bangladesh and India reported the most cases, with Japan, Turkey and Sri Lanka next. All countries on the list are in the Middle East, Far East, Balkans and eastern Mediterranean. On page 68, the report concludes re ML: “The consistent involvement of departure points like UAE, Saudi Arabia, and Hong Kong-China, and destination corridors into India, Türkiye, Japan, and Bangladesh, suggests entrenched regional laundering networks that demand multi-jurisdictional enforcement.” Note: ‘regional’.
Jewellery and the high-risk traveller
On page 63, it reports: “Jewellery smuggling via couriers remains a key modality: The high number of pieces seized in Saudi Arabia, Türkiye, and Japan indicates frequent interception of concealed jewellery worn or carried by passengers, underlining the importance of profiling high-risk travellers and body-worn concealment detection.”
Overall, the ITR is extremely detailed, providing numerous graphs, data sets, case studies and photographs of seizures on extensive chapters concerning ML and terrorism financing, drug trafficking, environmental crime, intellectual property rights, health and safety, revenue fraud and smuggling, and security breaches.
Cultural goods had their own chapter – albeit revealing just how small the problem is – for several years until the early 2020s. No more, however.
Considering the level of intelligence in every other sphere of interest across such a wide number of jurisdictions, it is hardly credible that the dearth of data when it comes to cultural goods can be explained entirely by under reporting. At no point in any past WCO report have cultural goods ever shown any significant contribution to illicit trade on a global scale in comparison to other spheres. Now they show even less, despite all the lobbying claims to the contrary.
Customs administrations have consistently ranked it as their lowest priority. Could this be because it is the smallest issue that they face in this context?
by ADA | May 21, 2026 | Uncategorized, Views |
In 2025 a bipartisan group of U.S. Senators pushed for new anti-money laundering regulation of the art market under the Bank Secrecy Act.
Already in force in the UK and Europe, AML laws as they apply to the art market may help fight crime and deter wrong doers, but the burden of compliance can come at a significant cost in terms of money and time.
A serious study of AML impact on the art market in the UK, which leads the world with regards to these measures in this sector, has yet to take place, but anecdotal evidence indicates that at least some would-be buyers are being put off by the requirements of compliance on their part, and by the intrusion into their privacy. This is not because they have something to hide but because the hassle has spoiled their enjoyment of the process of acquisition and they simply can’t be bothered to go through with it.
How do you balance the interests of crime prevention with those of the market?
The most obvious way would be to raise what appears to be an arbitrarily low value threshold for compliance: set at €10,000 for a single transaction or group of linked transactions (not always clearly defined), in the UK that is changing to £10,000.
Take a risk-based approach
Raising the threshold significantly can be argued from taking that vital ‘risk-based approach’ when one considers reporting in France, the European Union’s largest art market. The latest figures, as published in the Ministry of Economy & Finance’s 2024 report, show a total of 12 Suspicious Activity Reports (SARs) relating to art and antique dealers and intermediaries from 2022-2024 inclusive. For auction houses the number rises to 426 for the same period. Respectively, those figures account for 0.1% and 2.0% of reports across all sectors. No information is forthcoming about how many of those reports proved valid.
Some have argued that the low figures for the art market are the result of under reporting. Effectively, the logic of this argument is that art-related ML must be high under any circumstances, regardless of reporting, a standpoint that is simply not credible. If the reports are misleading, don’t publish them.
Another issue that has arisen in the UK is that although expert support from compliance companies has made things easier, interventions from enforcement teams working for HMRC have not where enforcement officers have not understood the law properly. Again, anecdotal evidence relates episodes of overreach, intimidation and damaging interference to legitimate business at inappropriate times.
Also challenging is the fact that after more than five years of enforcement in the UK, aspects of what is proving to be a complex regulation are still not clear. If the compliance companies and HMRC are still debating them, what hope have Art Market Participants (AMPs) of complying fully?
What Congress needs to consider
These factors must all be considered in the United States as Congress considers the proposed Art Market Integrity Act.
Some have argued that the art market is not bound by the anti-money laundering and counter-terrorism financing standards set by the Bank Secrecy Act. However, their qualifying transactions are already subject to these standards via the banking process.
The Senate voted down a previous attempt at regulation in 2022. The proposed Enablers Act risked undermining fundamental principles of the rule of law and citizens’ rights, argued the American Bar Association.
Such fears are justified because these rights are already being extensively undermined in relation to the art market by the plethora of bilateral agreements (also known as Memoranda of Understanding) with third countries that effectively give them a veto on cultural property imports that belong to U.S. citizens. Article 1 of the MoU with Egypt, for example, demonstrates this clearly. The seizure and return of items for which no proof of illegality is forthcoming has become commonplace. The reversal of the burden of proof to ‘guilty until proven innocent’ is all but standard in this sphere today. Such arbitrary interference with citizens’ property is in direct contravention of the 5th and 14th Amendments of the U.S. Constitution, as well as Article 17.2 of the Universal Declaration of Human Rights.
Current proposals under the Act are unworkable
Current proposals under the Art Market Integrity Act would be unworkable because they are far too wide in scope. Defining an AMP as “a person engaged in the trade in works of art, including a dealer, advisor, consultant, custodian, gallery, auction house, museum, collector, or any other person who engages as a business as an intermediary in the sale of works of art”, it allows for certain very limited exclusions. The key exclusion is someone who “has not, during the prior year, participated in total transactions valued at $50,000 that involved a work of art”.
To be clear, this is not a threshold of $50,000 for a single work of art, but a total sales value for all artworks sold over a period of 12 months of $50,000. This ‘mom and pop’ level of trade would not have the time and money to pay for compliance, meaning that the new regulation would simply put them out of business.
If Congress is to proceed with the Act, this section must be struck out or the result would be a disaster for ordinary U.S. citizens.
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