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Navigating New Grounds on the Nazi-Looted Art Restitution Field: Swiss Commission and German Arbitration Tribunal

August 9, 2024

Amanda Buonaiuto, Photograph of a staircase at the Kunsthaus Zürich, 11 March 2023.

Amanda Buonaiuto, Photograph of a staircase at the Kunsthaus Zürich, 11 March 2023.

By Amanda Buonaiuto

In the Process of Crafting a Committee: Insights from Switzerland

Switzerland will form a Committee to address Nazi-looted art cases later this year.[1] This decision is not new, as discussions on this topic have existed for a long time. However, it gained particular attention in 2021, following the exhibition of several artworks from Emil Bührle’s collection at the Kunsthaus Zürich. Bührle was an armament manufacturer and art dealer, who acquired multiple art pieces looted from Jewish families by the Nazis. Therefore, the display of his collection sparked extensive public criticism, as there were concerns that some of the pieces might be Nazi-looted art[2].

Due to this controversy, in 2022, the Social Democratic Party parliamentarian Jon Pult, submitted a parliamentary motion urging the establishment of a Commission, which was voted on 22 September 2022 by the Swiss Federal Council. The motion was shortened and some guidelines for the design of the committee were deleted.[3] Due to these changes, a new discussion was held on 22 November 2023[4] and it was decided that a Committee would be established in 2024.[5]

According to the Verordnung über die unabhängige Kommission für historisch belastetes Kulturerbe, the Commission will be composed of nine to twelve members, who together will offer non-binding restitution recommendations for any Nazi-looted art and colonial-looted cultural heritage object that has passed through or is located in Switzerland.

In April 2024, the initial step towards establishing the Swiss Commission was made. Nikola Doll, an art historian, was appointed as the Committee Secretariat and also as the main person responsible for looted art and provenance research at the Bundesamt für Kultur (BAK).[6] Since then, various events to discuss aspects of the Commission have taken place. On 4 June 2024, the authors of the initial draft proposed that the Committee could be appealed unilaterally. This proposal was deliberated during the debate. Based on the majority vote (30 in favor and 15 against), it was determined that both sides[7] must jointly request a recommendation for the Swiss Committee to initiate proceedings to initiate proceedings for the restitution of looted art.[8]

Numerous institutions have voiced concern regarding this decision. While the Swiss Provenance Research Circle (SAP/ASP) argued that the decision contradicts the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art[9] endorsed by Switzerland in March 2024[10], the Schweizerischer Israelitischer Gemeindebund (SIG) claimed that it restricts the scope of the future Commission:

“The decision of the Ständerat on the bilateral activation of the future expert commission may be understandable from a legal perspective but not from a moral one. Fair and equitable solutions are not guaranteed when legal guidelines prevent even the simple assessment of each case. The position of the weaker party, which as a descendant of a potential victim does not need to be heard by the expert commission, is once again marginalized.”[11]

In summary, the requirement for bilateral activation allows one party to independently obstruct the Commission’s activation, potentially resulting in a loss of confidence in the willingness to seek an amicable resolution[12]. Therefore, all these unsatisfied institutions are hoping that the National Council, in future discussions, will recognize the issue and legally establish the unilateral activation of the Swiss Committee. However, this remains an uncertain scenario subject to ongoing debate and further development.

In addition to establishing the Commission, the Swiss government has been actively investing in adherence to other best practice guidelines. Recommendation “G”, for example, advocates for the encouragement of diligence in the provenance research field[13]. This initiative is already showing results, as institutions like the Kunsthaus Zürich decided in June 2024 to subject artworks from the Bührle Collection to a new provenance assessment. Consequently, five pieces of art have been removed from public display.[14]

From Commission to Arbitration Tribunal: Germany’s Reform Journey Unveiled

Unlike Switzerland, which is only now beginning to address looted art in its museums, Germany is further along in this process. As the topic of looted art gains attention and affects restitution claims for earlier lootings, including colonial appropriations, the Germans find themselves in need of revising their approach to Nazi-era looted art claims.

The Beratenden Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter insbesondere aus jüdischem Besitz, commonly referred to as the Limbach Commission, is an independent advisory body established by Germany in 2003. This Committee operates under the condition that both parties agree to mediation, aiming to reach a non-binding recommendation for Nazi-looted art restitution cases.

On 13 March 2024, the German Federal Ministry of Culture and Media announced that the German Committee would be replaced by an arbitration tribunal. This reform, which will be implemented by the end of 2024 at the latest,[15] was prompted by the German Commission’s low number of recommendations over the past two decades[16]. The explanation behind this can be attributed to the requirement that this Commission can only act upon bilateral agreement, thereby limiting the initiation of restitution efforts:

“Germany’s “Advisory Commission,” which has been in existence for over twenty years, identified bilateral activation as the principal obstacle to the execution of its tasks in the autumn of 2023 and urgently called for a reform of the existing regulations (see press release of September 4, 2023).”[17]

According to Claudia Roth, Minister of State for Culture and Media, the reform will enable Germany to more effectively pursue the objectives of the Washington Principles, especially Principle XI, which encourages nations to develop national processes, particularly regarding alternative dispute resolution mechanisms for resolving ownership issues[18].

In order to gain a deeper understanding of the matter, arbitration is an alternative dispute resolution mechanism. In this extrajudicial method, an independent judge, referred to as an arbitrator, makes binding decisions based on the evidence presented by the parties. An arbitral award can hold the same enforceability as a judgment from the state court, once recognized by them. Typically, such awards are regarded as “res judicata”, even by foreign courts. Therefore, it can be concluded that this mechanism is similar to traditional judicial processes. What sets those procedures apart is the significant autonomy that arbitration offers to their parties: the proceedings can be tailored according to their needs, being designed individually. Hence, various elements can be deliberated, such as which legislation will be applied and whether other principles will be included.

There is still no established concept of how the arbitration tribunal will function in cases of Nazi-looted art restitution. Many questions remain unresolved, such as whether the arbitrators can be freely chosen by the disputing parties, or whether unilateral activation of the claim will be possible. The next meeting of the German culture ministers to discuss this matter is scheduled for October 9, 2024. By then, it is expected that the scenario will be more clearly defined and shared publicly.

In addition to establishing the arbitration tribunal, Germany also aims to improve other areas related to the matter of the restitution of Nazi-looted art. Another aspiration of the reform is to strengthen the provenance research field through the inclusion of additional experts. Those would be responsible for commissioning reports during proceedings and contributing directly to the achievement of the alternative dispute resolution decisions. Moreover, all cultural heritage institutions and private individuals are going to be compelled to label Nazi-looted artworks in exhibitions[19] and encouraged to report restitutions and other just and fair solutions encountered to the Deutschen Zentrum Kulturgutverluste.

Prospects Analysis

In light of the currently forming of the Swiss Commission and the German Arbitration Tribunal, it is necessary to consider the question: is one nation more advanced than the other regarding the restitution of Nazi-looted art?

Germany has recognized that the previous model was ineffective and is now navigating unknown ground. While the Germans remain uncertain whether this reform will lead to an increase in recommendations for the restitution of Nazi-looted art, they are striving to apply lessons learned from past practical experiences to fulfill the core principle of the Washington Principles, which is to achieve just and equitable solutions.

Switzerland, on the other hand, is only now officially embarking on this journey. Whether the Swiss are missing the opportunity to benefit from the experiences of countries that have already addressed these issues through similar approaches, such as Germany. Based on the 21 years of experience of the Limbach Commission, if the Swiss Commission continues with the idea of using a bilateral activation, the chances of failure are high.

What insights can be drawn from this prospect analysis? Both countries need to advance even more by investing in a careful examination of each other’s experiences and strategies. With a comparative approach, they have the potential to refine and enhance their effectiveness in addressing cases of Nazi-looted art restitution. Moreover, they should also consider advocating for unilateral activation. This mechanism would provide an equitable voice to both parties involved in the dispute and may represent the most effective solution to increase the number of non-binding recommendations.

By the end of this year, we can anticipate several significant developments in Switzerland and Germany. It is hoped that through mutual learning, both nations will achieve the most favorable outcomes for Holocaust victims.

Suggested readings

About the Author

Amanda Buonaiuto (Center for Art Law Postgraduate Fellow) is a Brazilian lawyer who specialized in the restitution of Nazi-looted art during her L.L.M at the University of Bonn. Alongside CFAL, Amanda is leading the Project “Nazi-Looted Art Restitution”. This project aims to assess, gather, and contextualize information concerning Nazi-looted art restitution cases in an interactive manner. Read more about the Nazi-Looted Art Restitution Project here.

Select Sources:

  1. Switzerland previously had the Bergier Commission, which was dissolved this year. Although the commission dealt with cases related to the withholding of valuables from Holocaust victims, it did not address art-related issues. See Lootedart.com, Bergier Commission: Independent Commission of Experts Switzerland, Second World War (ICE) (January, 2010), https://www.lootedart.com/MFEU4O92059 ↑
  2. In response to the extensive criticism, the city of Zürich committed to conduct an independent investigation into the Bührle Foundation’s provenance research and required the Kunsthaus Zürich to enhance transparency regarding the display of Bührle’s collection. See Catherine Hickley, Swiss parliament urged to take action on Nazi-looted art amid Kunsthaus Zurich controversy, The Art Newspaper (December, 2021), https://www.theartnewspaper.com/2021/12/10/swiss-parliament-urged-to-take-action-on-nazi-looted-art-amid-kunsthaus-zurich-controversy ↑
  3. See Nikki Vafai, Spotlight: Swiss Federal Council Approves Creation of an Independent Commission on Nazi Looted Art, Center For Art Law (December, 2022), https://itsartlaw.org/2022/12/03/spotlight-swiss-federal-council-approves-creation-of-an-independent-commission-on-nazi-looted-art/ ↑
  4. See Jo Lawson-Tancred, Switzerland Establishes a New Committee Focused On Restituting Looted Art, Artnet (November, 2023), https://news.artnet.com/art-world-archives/switzerland-committee-looted-art-2398520#:~:text=Switzerland’s%20Federal%20Council%20agreed%20yesterday,looted%20during%20the%20Nazi%20era. ↑
  5. See Apollo – The International Art Magazine, Switzerland sets up new committee on restitution (November, 2023), https://www.apollo-magazine.com/art-news-switzerland-restitution-committee/ ↑
  6. See Bundesrat, Nikola Doll wird Verantwortliche für den Bereich Raubkunst und Provenienzforschung (April, 2024), https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-99674.html ↑
  7. The Holocaust victim or their heirs and the museums, private collectors or national institutions that are currently holding Nazi-looted artwork. ↑
  8. See Bundesversammlung — Das Schweizer Parlament, Ständerat Sagt Ja zu Neuer Kommission für Provenienzforschung (Juni, 2024), https://www.parlament.ch/de/services/news/Seiten/2024/20240604110207285194158159026_bsd059.aspx ↑
  9. The recommendation “I” of the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art states that “Countries are encouraged to create an independent expert body whose composition may be the states’ responsibility, to which unilateral access is available that can adjudicate cases of art and cultural property and arrive at or recommend a binding or non-binding decision.” Consequently, the decision chosen by Switzerland for bilateral activation of its Commission contradicts this new guideline, as it expressly recommends unilateral accessibility. ↑
  10. See Schweizerische Arbeitskreis Provenienzforschung (SAP/ASP), Unabhängige Kommission für historisch belastetes Kulturerbe in der Schweiz: Statement des Schweizerischen Arbeitskreises Provenienzforschung für eine «einseitige Abrufbarkeit» (Juni, 2024), https://provenienzforschung.ch/wp-content/uploads/2024/06/20240611_Stellungnahme-SAP_dfr_Anrufbarkeit_Kommission_web.pdf ↑
  11. Translated by the author: See Schweizerischer Israelitischer Gemeindebund (SIG), Der Ständerat votiert zwar für eine unabhängige Expertenkommission für historisch belastetes Kulturerbe, schränkt aber zugleich deren Handlungsspielraum ein (June, 2024), https://swissjews.ch/de/news/staenderat_expertenkommission_kulturerbe ↑
  12. See Schweizerische Eidgenossenschaft (EDI/BAK), Faktenblatt, Unabhängige Kommission für historisch belastetes Kulturerbe (Juni, 2024),https://www.bak.admin.ch/dam/bak/de/dokumente/kulturbotschaft/kb-2025-2028/faktenblatt-is-xpertenkommission-belastetes-kulturerbe.pdf.download.pdf/faktenblatt-is-expertenkommission-belastetes-kulturerbe.pdf ↑
  13. Recommendation “G” of the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art: “Governments should encourage provenance research and projects to catalogue, digitize and make available on the internet public and private archives, including dealer records. Public and private collections should be encouraged to publish their inventories.” ↑
  14. See Kunsthaus Zürich, Statement des Kunsthaus Zürich zur Medienmitteilung der Stifung Sammlung E. G. Bürhle vom 14. Juni 2024, (Juni, 2024), https://kunsthausrelaunch8251-live-a33132ecc05c-1c0f54b.divio-media.net/documents/Holding_Statement_Buehrle_20240614.pdf ↑
  15. Arbitration in Germany operates within a legislative framework. Given that an arbitration framework can be established using existing legislation, there is no requirement for specific parliamentary enactments such as a “restitution act” or similar measures. Consequently, implementation can proceed quickly. ↑
  16. See The Local DE, Germany ‘failing in moral responsibility’ for restitution of Nazi-looted (September 2023), arthttps://www.thelocal.de/20230904/germany-failing-in-moral-responsibility-for-restitution-of-nazi-looted-art ↑
  17. See Schweizerische Arbeitskreis Provenienzforschung (SAP/ASP), Unabhängige Kommission für historisch belastetes Kulturerbe in der Schweiz: Statement des Schweizerischen Arbeitskreises Provenienzforschung für eine «einseitige Abrufbarkeit» (Juni, 2024), https://provenienzforschung.ch/wp-content/uploads/2024/06/20240611_Stellungnahme-SAP_dfr_Anrufbarkeit_Kommission_web.pdf ↑
  18. See Kulturminister Konferenz, Beratende Kommission: Entscheidende Weichen für Reform gestellt (March, 2024), https://www.kmk.org/aktuelles/artikelansicht/beratende-kommission-entscheidende-weichen-fuer-reform-gestellt.html ↑
  19. In order to pay tribute to Holocaust victims and provide additional information about the looted art issue in general. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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