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July 3, 2015

Friday, July 03, 2015 - ,,,,, No comments

Further Information about Palermo's stolen Caravaggio Nativity painting

Caravaggio, "Nativity with Saint Lawrence
and Saint Francis"
For further reading on the ARCA Blog about Caravaggio's "Nativity with Saint Lawrence and Saint Francis" stolen from a church in Palermo in 1969:

Judith Harris, "Breaking News on the Stolen Caravaggio Nativity", December 18, 2009;

Catherine Schofield Sezgin, "More confirmation of old news? Pietro Grasso, head of the anti-Mafia crime unit, confirms in May that Caravaggio's Nativity of Palermo eaten by pigs", May 10, 2012;

Sezgin, "Revisiting books: Peter Watson on the Palermo Nativity in the 1984 book The Caravaggio Conspiracy", May 14, 2012;

Sezgin, "Revisiting books: Watson's The Caravaggio Conspiracy and the motive for stealing the Palermo Nativity",  May 16, 2012;

Sezgin, "Revisiting books: An Earthquake Shatters Expectations in The Caravaggio Conspiracy", May 18, 2012;

Laura Fandino, "ARCA 2013 Conference: James Moore on the stolen Palermo Nativity by Caravaggio ...", August 25, 2013;

In regards to a theft of another Caravaggio painting:

Sezgin, "Rev. Dr. Marius Zerafa Spoke on "The Theft and Ransom of Caravaggio's "St. Jerome Writing", Co-Cathedral of St. John" at ARCA's Sixth Annual Interdisciplinary Art Crime Conference" July 10, 2014;

Sezgin, "Father Zerafa's recommended reading on Caravaggio's Stolen Palermo Nativity -- and his memory of visiting the painting in the S Lorenzo Chapel",  July 17, 2014.

July 2, 2015

Thursday, July 02, 2015 - ,,, No comments

Sicily, Palermo, Cicero, and a missing Caravaggio ...

Cicero's bust in the Musei Capitolini
 ["Cicero - Musei Capitolini"
 by Glauco92 - Own work.
 Licensed under CC BY-SA 3.0
 via Wikimedia Commons].jpg
by Judge Arthur Tompkins

This year's visit to Ameliai, Umbria, for ARCA's Art Crime and Cultural Heritage course saw a visit, during a break in teaching duties, to Sicily. Apart from the obvious reasons to visit (I'd never been before, and it being a slightly mythical, Godfather-producing place, and all) two art crime-related reasons spurred my presence in the centuries old, culturally diverse, vibrant and slightly shambolic ancient metropolis. 

The first was that about 20 centuries ago, a Roman magistrate named Gaius Verres came to Palermo as governor. During an energetically corrupt, roughly two-year tenure, he managed to plunder and loot and steal his way through whole swathes of Sicilian culture and art and heritage.  

"Michelangelo Caravaggio, Nativity with
 San Francesco and San Lorenzo"
Fated ever to be the long suffering populace (in the coming centuries, they were to be ruled by - not necessary in this order, or at least always not in a lineally ordered sequence - the Romans, the Vandals, the Goths, the Byzantines, the Arabs, the Normans, the Angevins and the Aragonese, the Bourbons, the Savoys, and finally, the Italians), Verres' larceny proved too much even for the stoical Sicilians. They hired a young and ambitious lawyer in Rome, one Marcus Tullius Cicero, to prosecute the erstwhile governor. And prosecute him Cicero did, vigorously and famously, in the Senate, by way of a series of speeches later known to history collectively as the Verrines. Such was the power of his prosecutorial oratory, after the first speech was delivered to a likely enthusiastic Roman crowd and Senate, Verres fled into exile. He never returned to Rome.

Cicero's Verrines have echoed down the centuries, as exemplars of oratory, of writing, of prosecutorial precedent and, coincidentally, of informative travel-writing. Conceptually, in part they embody and express a fundamental idea that underpins so much of our cultural heritage protection thinking now, the idea that art and culture and heritage belongs not just to the immediate possessor or the country in which accidental history consigns it, but to all humankind.

So I wanted to walk the same ground as had the notorious Gaius Verres, and which had occasioned Cicero's oratory.

Via Vittoria Emanuele, Palermo, Sicily [Arthur Tompkins].jpg
The second reason is that Palermo is the site of one of the great unsolved art crimes. In 1609 Michelangelo Merisi da Caravaggio was on the run from the authorities in Rome. He had been Naples and in Malta, but in late 1608 he had washed up in Sicily. According to one account, he spent a year here, "sleeping fitfully with a dagger by his side, and painting several late [although I guess he would probably have thought of them as early to mid career] masterpieces".

One of them was the large and dramatic Nativity with San Lorenzo and San Francesco. For about 350 years the canvas hung undisturbed above the altar in the Oratorio di San Lorenzo, just off the main Via Vittorio Emanuele in downtown Palermo.

Then in October 1969 it was stolen.  It has never been seen since. Varying accounts have it still in hiding somewhere, burnt, rotted, eaten by rats, or indeed fed to swine (by swine, one might think ...).

I wanted to see where it should still be.

July 1, 2015

Wednesday, July 01, 2015 - ,, No comments

Islamic Manuscript Collections in Conflict Zones: Safeguarding Written Heritage, hosted by the University of Cambridge from 5 to 7 October 2015

Dear Colleagues,

The Islamic Manuscript Association, in cooperation with the Thesaurus Islamicus Foundation and the University of Cambridge and with the support of Harvard University, is pleased to announce an inaugural short course entitled Islamic Manuscript Collections in Conflict Zones: Safeguarding Written Heritage, hosted by the University of Cambridge from 5 to 7 October 2015.

This intensive, three-day course is intended for academics, policy makers, cultural experts, lawyers and military experts, and will also be of interest to conservators, librarians, art historians, and other researchers working with Islamic manuscripts and documentary heritage in conflict areas. Ten speakers will introduce the concepts and mechanisms that underpin cultural property protection in the present day and educate participants in best practices of managing, protecting, and preserving manuscript collections at risk. Individual case studies will concentrate on Bosnia, Iraq, Libya, and Mali, while presentations and roundtables will be structured around the themes of the legal aspects of cultural property protection, military involvement in cultural property protection, and the destruction of memory.

To register your interest, please fill the application form found at: goo.gl/qBDlIK.

Scholarship Opportunity: The Islamic Manuscript Association is also pleased to offer a scholarship for a place on the course. Sponsored by the Barakat Trust, this scholarship will enable a senior conservator, codicologist, librarian, art historian, curator, researcher, or any other scholar or specialist of Islamic manuscripts who resides in the Islamic world to attend the full course.

Best wishes,

Armin


------
Armin Yavari
Assistant Director
The Islamic Manuscript Association
c/o 33 Trumpington Street
Cambridge CB2 1QY
United Kingdom
T: +44 (0)1223 303 177
F: +44 (0)1223 302 218
E: armin@islamicmanuscript.org
W: www.islamicmanuscript.org

June 27, 2015

Saturday, June 27, 2015 - , No comments

ARCA 2015 Interdisciplinary Art Crime Conference Schedule


 Saturday, June 27, 2015

8:15 am -   9:15 am: Welcome and Registration

9:15 am -   9:30 am: Conference Welcome 
Lynda Albertson, Chief Executive Officer
Association for Research into Crimes Against Art

9:30 am - 10:30 am: The Fine Art of Insuring Fine Art                                      Panel Chair: Maria Edwards, M.A.,
Adjunct Professor 
Stony Brook University, ARCA 2015
"Dealer Conversion of Consigned Art. When Drugs and Greed Make the Art Disappear: Experts Will Deal with Legal, Insurance, and Valuation Complexities"
                                                                                                                                                     Thomas R. Kline, J.D.
Of Counsel Andrews Kurth, LLP and Professorial Lecturer                            George Washington University

Dorit Straus
Fine Art Insurance Expert and ARCA Lecturer
Art Recover Group PLC

Victor Wiener, PhD.,
Victor Wiener Associates, LLC, Adjunct Assistant Professor                                New York University


"The Art of Risk Management: The Crucial Role of the Global Art Insurance Industry in Enabling Risk and Security"
                                                                                                                                                            John Kerr, PhD.,
University of Roehampton 


10:30 am -11:00 am: Networking Coffee Break

11:00 am -1:00 pm: National and International Art Crime Policing
            Panel Chair: Christos Tsirogiannis, PhD., ARCA Professor                                                     
Research Assistant in the Scottish Centre for Crime and Justice Research              
Trafficking Culture Project
University of Glasgow 

"From Prosecution Comes Solution: Using the Crook's Mind to Combat Art Crime"

Jordan Arnold, Esq., Managing Director
K2 Intelligence

"EU = 28 Countries + 28 Legislations = 1 Million Problems"

Martin Finkelnberg, Head of the Art and Antique Crime Unit of the Netherlands
Dutch National Police 

"One Culture, Two Systems: Changing Attitudes to Cultural Heritage Protection and Illicit Smuggling in Hong Kong and China" 

Toby Bull, MSc., 
Founder, TrackArt - Art Risk Consultancy

Steven Gallagher, Barrister, Faculty of Law 
The Chinese University of Hong Kong

"The Italian Carabinieri and the Evolution of its Art Crime Databases"
                                                                                                                                        
Capitano Luigi Spadari
Comandante Sezione Elaborazione Dati 
Carabinieri del Comando Tutela Patrimonio Culturale

"Activities and Tools of INTERPOL’s Works of Art Unit in the Fight Against Illicit Trafficking in Cultural Property"

Françoise Bortolotti, Criminal Intelligence Officer
INTERPOL General Secretariat (Lyon, France)                                                        Sub-Directorate -Drugs and Organized Crime- Works of Art Unit
                                
"Europol’s Involvement in the Fight Against Cultural Goods Crime"

Michael Will, Manager
EUROPOL, Organised Crime Networks Group - Focal Point Furtum


1:00 pm - 2:00 pm: Lunch in the Cloister
 2:00 pm - 3:00 pm: Heritage Crimes in Countries in Conflict:  Perspectives From the Field     
Panel Chair: Samer Abdel Ghafour, ARCA 2015
Founder of "Archaeology in Syria" Social Media Network

"Syrian Cultural Heritage During the Crisis"

Dr. Maamoun Abdulkarim
Director-General of the Directorate General of Antiquities & Museums, Syria        

"A View on Heritage Protection from Southern Iraq"

Dott. Franco D'Agostino, Professor of Assyriology
Director Iraqi-Italian Mission at Abu Tbeirah
Sapienza Università di Roma

Dott.ssa Licia Romano, 
Co-Director Iraqi-Italian Mission at Abu Tbeirah
Sapienza Università di Roma

"Libya and Heritage Protection in the Absence of Security"

Hafed Walda, PhD., Research Fellow, King's College London
Pending Deputy Ambassador to the permanent Libyan delegation at UNESCO

 3:00 pm -  3:30 pm: Refreshment Break

3:30 pm -  5:00 pm: Heritage Crimes in Countries in Conflict: Analysis, Understanding and Protection, Before During and After the Wars Have Ended
Panel Chair: His Highness Prince Sisowath Ravivaddhana Monipong 
The Return of the Monkey God to Phnom Penh:  The Koh Ker Repatriation 

"A ‘Vital Source of Funding': Conflict Antiquities in the Syrian Civil War" 

Sam Hardy, DPhil Law Studies 
American University of Rome

"So How Did We Get Here? Trying to Understand the Reasons Behind the Unprecedented Destruction of Archaeological Heritage"

Joanne Farchakh Bajjaly, MA., Archaeology, MA., Journalism
Biladi: Heritage for Peace Building (Lebanese N,G.O)

"Protecting China’s Archaeological Artefacts Against Looting and Illicit Art Trafficking"

Stefan Gruber, PhD., Associate Professor                                                               Kyoto University

5:00 pm - 5:30 pm: Conclusions and Final Questions

Sunday, June 28, 2015 

 9:30 am - 10:30 am: Contemporary Issues in the Global Art Market 
Panel Chair: Noah Charney, PhD., ARCA Founding Trustee
Lecturer and Author

"Connoisseurship in a Globalized Art Market: Reconciling Approaches to Authenticity "

Clare Diamond, PhD Candidate
Monash University, Melbourne, Australia

"Art CSI: When Science Solves the Puzzle of Forgery. The Case Study "Vase of Flowers", Painting Attributed to Filippo De Pisis (1896-1956)"

Lisa Volpe, PhD., Research Fellow                                                                 Conservator Scientist, TekneHub                                                                     University of Ferrara, Italy

Marilena Leis, PhD., 
Professor, Department of Life Science and Biotechnologies                         University of Ferrara, Italy


10:30 am - 11:00 am: Networking Coffee Break


11:00 am - 11:30 am: Researching the Trafficking of Culture  
Panel Chair: Lynda Albertson, ARCA CEO

"Perspectives on Crime and Crime Control Policy from the Trafficking Culture Project"

Simon Mackenzie, PhD.,
The Scottish Centre for Crime and Justice Research              
Trafficking Culture Project, University of Glasgow

Donna Yates, PhD.,
The Scottish Centre for Crime and Justice Research              
Trafficking Culture Project, University of Glasgow

Neil Brodie, PhD.,
The Scottish Centre for Crime and Justice Research              
Trafficking Culture Project, University of Glasgow

11:30 am - 1:00 pm: Issues in Art Law  
Panel Chair: Elise Perry, ARCA 2015

"Art Fraud in Germany or How Criminals Become Celebrities"
Saskia Hufnagel, PhD., Accredited Specialist in Criminal Law
Queen Mary University of London

"Opining on the Authentic"

Philippa Malas, Barrister, England and Wales
Law Lecturer, University of Glasgow                                                                   Author of the MSc Art Law and Business at Christie's Education, London

"Mediation as an Alternative to the Court for Resolution of Art and Cultural Heritage Disputes"

Dott. Pierfrancesco C. Fasano, Attorney-at-Law
FASANO - Avvocati

Dott.ssa Ivett Paulovics, Attorney-at-Law
FASANO - Avvocati 


"Sentencing the Art Thief: Deterrence, Responsibility, Protection, Reparation and Restoration - Uneasy Bedfellows in a Courtroom?"
Arthur Tompkins, Judge
New Zealand Ministry of Justice 


1:00 pm - 2:00 pm: Lunch in the Cloister

2:00 pm - 3:00 pm: Whitening Illicit Art Via the Licit Marketplace
Panel Chair: Angelina Giovani, ARCA 2014 and Holocaust Art Restitution Project  

"Discovering and Visualising the Criminological Value of The Medici Conspiracy"

Christos Tsirogiannis, PhD.,
The Scottish Centre for Crime and Justice Research              
Trafficking Culture Project, University of Glasgow


"The Opaque Market of Egyptian Papyri in a Globalised Context: Sellers, Buyers, Prices and the Role of Academics"

Roberta Mazza, PhD.,
Lecturer in Classics and Ancient History                                                        University of Manchester


"Uncovering the Illicit Traffic of Russian Ancient Icons"
Laure Coupillaud Szustakowski, PhD Candidate
Chief Operating Officer at CAPABILIS


3:00 pm - 3:15 pm: Refreshment Break
3:15 pm - 4:45 pm: Provenance in Museums and Private Ownership 
Panel Chair: Judge Arthur Tompkins, ARCA Trustee and Lecturer

"Siena, Dunedin, Rome: the Tale of Five Macchiaioli School Paintings"
Penelope Jackson, MPhil.,
Trustee of the New Zealand Art Crime Research Trust


"Give and Take: Museum Professionals’ Attitudes and Ethics Toward the Acquisition and Repatriation of West African Cultural Objects"
Meg Lambert, PhD Candidate
University of Glasgow


"Is Restitution to Rightful Owners the Only Solution?"
Angelina Giovani, MA., presenting on behalf of Marc Masurovsky 
Holocaust Art Restitution Project (HARP)                                              

"A Treaty, a Prophet and a Flag: The Repatriation of Indigenous Cultural Property and New Zealand's Waitangi Tribunal" 
Mia Gaudin, LLB., (Hons)
Crown Law Office, New Zealand


4:45 pm - 5:45pm: Risk Assessments in Museum Security
Panel Chair: Aaron Haines, ARCA 2015 

"Art Crime in Relation to Museum Security in the United States: A Survey of Recent Security Measures and Criminal Trends Within Accredited Art Museums"
Christine A. Weirich, PhD Candidate
School of Social and Political Science University of Glasgow


"A Collection of Thefts: What One Museum's Responses to Five Incidents Can Teach Us About Ideal Resolutions"
Katherine Luer, ARCA alumna and MLS Candidate
Independent Researcher


5:45 pm – 6:00 pm: Key Note Closing – A Look to the Future

June 24, 2015

Wednesday, June 24, 2015 - ,, No comments

Noah Charney's book "The Art of Forgery" discussed on NPR's "Fresh Air" with Dave Davies

Here's a link to NPR's Fresh Air program on ARCA Founder Noah Charney's recently published book "The Art of Forgery":
Michelangelo is known for masterpieces like the Sistine Chapel and the statue of David, but most people probably don't know that he actually got his start in forgery. The great artist began his career as a forger of ancient Roman sculptures, art scholar Noah Charney tells Fresh Air's Dave Davies. 
By the time Michelangelo's forgery was revealed, the Renaissance master was famous in his own right. But many other artistic forgers continue to copy the work of past artists in the hopes of passing their creations off as authentic. 
The art industry, says Charney, is a "multibillion-dollar-a-year legitimate industry that is so opaque you can't quite understand why anyone participates in it." In his new book, The Art of Forgery, Charney traces a tradition of fakes and forgeries that dates back to the Renaissance. 
In many instances, forgery is a question of economics; a forgery that is authenticated may be worth millions of dollars. But Charney says that many other art forgers are doing it as a "sort of passive aggressive revenge" against an art world that was not interested in their original work — but was too dim to tell forgeries from true masterpieces. 
Charney adds that the business practices of the art world provide a "fertile ground" for criminals: "You do not necessarily know who the seller is when you're buying a work of art. You might have to send cash to anonymous Swiss bank account. You may or may not get certificates of authenticity or any paperwork attributing to the authentic nature of the work in question. You may not be certain the seller actually owns the work. You might have gentlemen's agreements and handshakes rather than contracts — and this is normal in the legitimate art world."

June 15, 2015

Monday, June 15, 2015 - ,,,, No comments

Pissaro's "Rue Saint-Honore in the Afternoon, Effect of Rain" and the laws applied to art restitution

by Judge Arthur Tompkins

In 1897 Camille Pissarro painted Rue Saint-Honore in the Afternoon, Effect of Rain.  Forty years later, in 1939, Lilly Cassirer Neubauer, a member of the prominent Jewish publishing family that had owned the painting since it was created, was faced with a stark choice: hand the painting over to a Nazi art dealer and be given, in return, an exit visa to leave Germany with her husband and young grandchild, or remain in Germany amid the swirling and deadly storm engulfing Germany’s Jews. 

She chose the former:  Lilly, her husband Otto, and grandson Claude fled Germany; the painting disappeared; and the ridiculously low sum that Lilly had been promised as the “price” of the painting was locked in an inaccessible German bank account.

After the war, Lilly sought and was granted partial financial compensation, but without foregoing her claim to the painting. In 1958 she was recognised as the rightful and legal owner of the painting.  But the Pissarro was lost.

Or so she thought. In fact, in 1951 it had been sold to a collector in Los Angeles, with the Frank Perls Gallery earning a commission on the sale.  Less than 12 months later, it was sold again, this time through the New York dealers M Knoedler & Co, to a St Louis, Missouri, collector.

Two decades later, in late 1976, the Baron Thyssen-Bornemisza, of Switzerland, purchased it through another New York dealer, Stephen Hahn. In 1998 the Baron lent his entire collection of over 700 paintings to Spain, who established a non-profit state-owned Foundation to own, house and display the collection, and redesigned and rebuilt the Villahermosa Palace in Madrid for the purpose.

Then in 1993 the Spanish Government purchased the Baron’s collection, for over $300 million. Apart from two short periods when it was on loan elsewhere, the Pissaro has been on public display at the Foundation’s museum, the Museo Thyssen-Bornemisza (http://www.museothyssen.org/en/thyssen/home), in Madrid ever since.

Lilly Cassirer died in 1962. Her heir, her grandson Claude, discovered that the painting was on display in Madrid in 2000. Since then he, and after his death in 2010 his heirs, have been trying to recover the painting, through an extended and complicated series of court cases in both Spain and California.

The most recent twist in this ongoing saga happened on 4 June 2015.  A California Court ruled (available at http://www.artlawreport.com/files/2015/06/Cassirer-District-Court-Summary-Judgment-June-4-2015.pdf) that Spanish law, and not Californian law, was the governing law of the merits of the dispute, and that under Spanish law the Foundation is the owner of the painting, despite the acknowledged theft from Lilly.

Many aspects of this case, and its still-distant final outcome, are noteworthy (some are discussed by Nic O’Donnell at http://www.artlawreport.com/2015/06/11/cassirer-and-the-state-of-restitution-takeaways-and-next-steps/), but two stand out. 

First, this result highlights the irreconcilable and unbridgeable gulf between, in very general terms, common law and civil law systems when it comes to dealing with the later ownership of property that has been stolen.  In very broad terms in common law countries (those who derive their legal systems from the English common law, including the USA, Canada, Australia, New Zealand and others), a thief can give no better title down the chain of ownership than the thief had. Which is none. So, if and when the original dispossessed owner or their heir, turns up and claims the property back, then that claim will prevail.

This principle can be traced back to the Byzantine Emperor Justinian’s mid-6th century Digest:

“"Nemo plus juris ad alium transferre potest quam ipse haberet."[1]

Which translates to: "No-one can transfer to another greater right than he himself has." The principle is known in the common law, from this rule, as the Nemo dat rule.

In stark contrast, in civil law countries, predominantly but not exclusively those who derive their legal systems from the 1804 Napoleonic Civil Code and in particular Article 2262 of the Code,[2] a bona fide purchaser (and in some cases, it turns out Spain is one, even the successor in possession of a purchaser who purchased knowing of the theft) can acquire good title to even originally stolen property, after the expiration of a specified period of time. 

The great English jurist Lord Denning put the conflict this way:

“In the development of our law, two principles have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is for the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title.”[3]

In the ruling on the Pissarro, the judge explicitly recognised the competing policy decisions underlying the legislative choice between the two approaches:

“Generally, [the civil law approach] serves the important interests of certainty of title, protecting defendants from stale claims, and encouraging plaintiffs not to sleep on their rights. 
…
[The common law approach] recognizes the difficulties faced by owners in discovering the whereabouts of personal property even when held openly and notoriously, and serves to protect the interests of “the rightful owner” over subsequent possessors. It also serves to encourage subsequent purchasers to determine the true owner of property before purchasing that property.”[4]

An ultimately unsuccessful attempt was made by UNIDROIT in the 1960s through to 1989 to secure a convention which would have seen the adoption of a Uniform Law on the Acquisition in Good Faith of Corporeal Movables,[5] but the tension remains, at least in the international context, presently irreconcilable.

One attempt has been made to, as it were, agree to disagree on this fundamental issue, and to reach a pragmatic solution. That effort is encapsulated in The UNIDROIT Convention on Stolen or illegally Exported Cultural Objects 1995[6].  This was negotiated as a compatible and complementary agreement to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which deals primarily with cultural property stolen in peacetime.  

Article 3 of the UNIDROIT Convention states, simply:

“The possessor of a cultural item that has been stolen shall return it.”

That somewhat stark requirement is modified to an extent by the Convention’s provision to the effect that, if a State provides to this effect, compensation to the final owner can be paid if the final possessor has made appropriate enquiries. Article 4 of the Convention states:

“(1) The possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object.”

But note the immediately following clause:

“(2) Without prejudice to the right of the possessor to compensation referred to in the preceding paragraph, reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the compensation where to do so would be consistent with the law of the State in which the claim is brought.”

This is a clear attempted compromise between two conflicting stances, which were both apparent and conflicting during the 6 or so years of negotiations that lead up to the signing of the Convention in Rome in 1995.

So, if the Baron had chosen a common law country as the final resting place of his collection, the outcome would most likely have been quite different. But he did not.

The second aspect worthy of note in the Pissarro ruling is the Judge’s closing exhortation to the parties:

“Although the Foundation has not prevailed in this prolonged and bitterly contested litigation, the Court recommends that, before the next phase of litigation commences in the Ninth Circuit, the Foundation pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Span’s acceptance of the Washington principles and the Terezin Declaration, and, specifically, its commitment to achieve “just and fair solutions” for victims of Nazi persecution.”

The reference to the Washington Conference is a reference to The Washington Conference on Holocaust-Era Assets, hosted by the U.S.’s Department of State and the U.S. Holocaust Memorial Museum, held in over four days from 30 November to 3 December, 1998[7]. The Terezin Declaration came out of the European-Union sponsored Holocaust Era Assets Conference in Prague and Terezin, held on 26-30 June, 2009[8].

These are some of the Washington Principles[9]:

“In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, the Conference recognizes that among participating nations there are differing legal systems and that countries act within the context of their own laws.

1.   Art that had been confiscated by the Nazis and not subsequently restituted should be identified.
4. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.
5. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.
8. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.
11. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”

The Terezin declaration[10] from 30 June 2009 is to like effect.  Both encourage the resolution of claims not on the basis of legal technicalities, but rather “on the facts and the merits”[11].

It seems clear from his closing remark that the Judge in the Pissarro case was frustrated by his inability to decide the aspect of the case by reference to “the facts and the merits”. 

In this respect, the hybrid jurisdiction granted by statute to the United Kingdom’s Spoliation Panel has much to recommend it.  

The Spoliation Advisory Panel was established in 2000 as a direct result of the Washington Conference in December 1998[12]. It is chaired by a senior UK Judge, a retired Lord Justice of Appeal.  The Panel is a group of expert advisers who can be asked to consider claims for the return of an object plundered or lost during “the Nazi era” – 1933 to 1945. Once it has heard a case, the Panel makes a recommendation to the Secretary of State, who (to date) has always followed the Panel’s recommendations as to how a “fair and just” solution might be achieved.

The governing instrument which directs the Panel’s function is its Constitution and Terms of Reference.  This permits the Panel to consider claims “from anyone (or from any one or more of their heirs) who lost possession of a cultural object during the Nazi era, where the object is now in the national collection or in a museum or institution established for the public benefit.”[13]  

Whilst the Panel can consider legal issues, it does not decide as to legal rights, including title. The Panel’s process is explicitly an alternative to litigation. It must give “due weight to the “moral strength of the claimant’s case”, and consider whether any moral obligation rests on the institution. It is required to seek a “fair and just solution”.

Thus, if the baron had chosen the United Kingdom as the final resting place for his collection, it seems likely that a claim to the Spoliation Panel would have resulted.  This would have seen the Panel encourage the parties to try to find a win-win solution themselves, or, failing that, could have (assuming that the collection had ended up, as it did in Spain, as part of the UK’s “national collection or in a museum or institution established for the public benefit,”) recommended the return of the painting, given the reasonably clear moral claim stemming from its original theft, in appalling circumstances, from Lilly Cassirer.

Such are the accidents of history.

[1] Justinian’s digest 50.17.54, cited in Benjamin’s Sale of Goods (7th Ed, 2006) Para7-001, note 1.
[2] French Civil Code, BOOK III. (Of The Different Modes Of Acquiring Property), TITLE XX: OF PRESCRIPTION.
Chapter V., Section II, Article 2262.
Decreed the 15th of March, 1804. Promulgated the 25th of the same month.
[3] Bishopsgate Motor Finance Corpn Ltd v Transport Brakes ltd [1949] 1 KB 322, 336-337
[4] At p.8 of the judgment.
[5] UNIDROIT 1989 - Study LXX - Doc. 9: “The International Protection of Cultural Property. UNIDROIT draft Convention providing a Uniform Law on the Acquisition in Good Faith of Corporeal Movables” (LUAB, 1974) – Rome, January 1989, available at http://www.unidroit.org/english/studies/study70/main.htm. For an overview of the unsuccessful attempt see J H Merryman, ‘The Good Faith Acquisition of Stolen Art’ , in J H Merryman (Ed.), Thinking about the Elgin Marbles (2nd Ed, Kluwer Law International; 2009) at page 525ff.
[6] An Overview of the UNIDROIT Convention, and links to the official and unofficial translations, are available at http://www.unidroit.org/english/conventions/1995culturalproperty/main.htm
[7] The Conference materials are archived at: http://www.state.gov/www/regions/eur/wash_conf_material.html
[8] Conference materials are available at http://www.holocausteraassets.eu/
[11] Terezin Declaration, para 3 under the heading ‘Nazi-Confiscated and Looted Art’.
[12] Holocaust (Return of Cultural Objects) Bill: Committee Stage Report, Research Paper 09/59, 23 June 2009, section 2.2, page 3. Available at www.parliament.uk/documents/commons/lib/research/rp2009/rp09-059.pdf. 
[13] Clause 3.

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