WYWH: Review of the Study Forum organized by the Institute of Art & Law at the Notre Dame University (London, UK, 8 Oct. 2016)

November 5, 2016

By Evgenia Pangea

The October 8, 2016, Study Forum organized by the Institute of Art & Law (IAL or the Institute) was dedicated in the memory of the Professor and Academic Principal of the Institute of Art and Law (IAL), Norman Palmer. All speakers had the chance to say a few words about their venerable colleague and friend and talk about their experience of meeting Mr. Norman, the “guiding light” of the IAL for over twenty years. As told by the panel, it was because of his tireless dedication and passion for law and understanding of the law related to cultural property that the Institute has been developed to become internationally known and respected.

The program focused on the following ongoing burning issues in the field of Art Law:

• Insuring art in times of conflict,
• Agreed value art insurance policies,
• Holocaust- looted art and the UK’s Spoliation Advisory Panel,
• War and Cultural Heritage in the Middle East,
• Art Recovery by the Police,
• Underwater Cultural Heritage and recent finds,
• Art attribution, negligence and implied contractual terms and,
• Immunity from seizure: recent developments.

Mr. Tony Baumgartner (Partner in Clyde & Co LLP.), commenced the Study Forum by addressing the issue of “Insuring Art in Times of Conflict”. His, surrounded by Nazi-looted artworks, presentation included a thorough research of the issue of Art Insurance. Key questions of Insurance of the Artworks were addressed such as if Insurance for conflict perils is necessary and problems with definition and examples of insurance of Nazi confiscated pieces of art were presented. As explained by Mr. Tony Baumgartner, the Insurance Market has historically excluded the Insurance of movable property in the case of war and terrorism. The explanation of this fact has to do with various problems of defining the risks, i.e. the conflict perils and the luck of settlement of these definitions under UK Law. But, if we regard the majority of the latest destructions of artworks during wartime in multiple sites such as Syria, Iran, Iraq, Crimea, Ukraine and Afghanistan then the burning question of whether something can be done in order for the perils to be identified, rises. As Mr. Tony Baumgartner the difficulty regarding the conflict perils is found at their predictability. When, how and what sort of conflict perils will hit is very obscure. The factors that have to be taken under consideration when answering the questions if insurance for fine art in cases of war is necessary, are the geographical context, as fine art are not just objects in situ, but often move from one place to another, for the purposes of exhibitions or can often be found in luxury yachts, the unpredictability of events and the extraordinary cost per rated peril for commercial insurance. The speaker analysed what the Government Indemnity Scheme of UK and the NMA 2920/08.10.2001 provide for indemnities to public buyers (such as galleries and museums) and individual buyers respectively. More often than not, the definition of perils such as the definitions of war, civil war, military power, invasion, revolution-rebellion, riot, civil commotion, malicious damage and finally terrorism. In conclusion, when insuring an artwork, it is very fundamental that someone takes under consideration several facts such as where is the artwork going to be exhibited, where the artworks lies at the moment, which are the levels of terrorism in these areas, what sorts of perils do you want to insure it for and what do you want to cover, as the devil is in the detail.

(Photo: Hitler asses looted art. Photo by YouTube Screenshot)

Mr. Simon Graig (ACME Loss Adjusting & Risk Survey Co.) continued addressing the issue of Art Insurance, but this time not in the case of war, but at all times and more specifically he analyzed the different types of insurance policies for fine art and in particular the Agreed Value Insurance Policy. According to Mr. Simon Graig it’s fundamental to find out on terms of which policy someone will value the artwork, as the indemnities are estimated on the basis of the valuation. The policies differ depending on the nature of the parties and more specifically whether they are private parties or public bodies. The policies to be found usually are market value policies, declared value policies and agreed value policies. A important event discussed by the speaker was the fact that parties have the possibility to dispute the agreed value if a party has clear evidence of misrepresentation. Two characteristic and memorable examples were given, and more specifically the cases of the “Electric Chair” by Andy Warhol and the “Black Dress” of Marilyn Monroe.

(Andy Warhol’s Big electric Chari, Photo by Wikipedia)

Dr. Charlotte Woodhead presented the legal impediments of the Holocaust- looted art then and now and the post-war and renewed efforts for restitution of fine art looted during Nazi Era (1933-1945). The speaker talked about the varied nature of the dispossessions that the mass relocation of the items took place by such as seizure of objects, forced sales and seemingly legitimate sales. The various efforts for restitution back then and nowadays were presented and the way they escalated. Between others the legal efforts of the Inter-Allied Declaration, The Monuments Men, time-limited national legislation and military law and the Mac Millan Committee were mentioned.  In the late 1990’s things have changed and the efforts for restitution have escalated and a lot of new initiatives that reinforced the restitution claims took place such as other Holocaust- related claims and slave labor claims, opening up of previously sealed archives from Eastern Europe and academic work. Dr. Charlotte also spoke for the fundamental impediment of the restitution which is the limitation period provided in the Limitation Act 1934, analyzed when it starts and the little chances of success of a claim limited by this period and compared it with other kind of principles that exist in other legislations concerning the starting of the limitation period such as the demand and refusal rule and the discovery rule. The speaker also analyzed the international efforts against restitution and also the UK efforts including the establishment of the Spoliation Advisory Panel and its nature as being an independent body of experts, lawyers, historians, judges, philosophers etc. which is alternative to legislation but doesn’t determinate legal title. Finally, the speaker discussed about the forced sales and illustrated the examples of two cases of forced sales that took place in the UK, the one of Tate Gallery/ Griffier claim (2001) where the painting was sold ‘‘for an apple and an egg’’, as a German expression says, and the case of British Museum/Koch claim (2012) where the fine art was sold in London legally but in order for the seller to afford a new life in the UK.

(Jan Griffier’s’ ‘View of Hampton Court Palace’’, Image released under Creative Commons CC- BY-NC-ND)

Sir Derek Plumbly (former British Ambassador to Egypt and Saudi Arabia) also discussed for the intersection between war and art, but this time not in terms of insurance, but in terms of the impact of the destruction of tangible and intangible cultural heritage during recent conflicts and the political role that US and UK played in major conflicts. Sir Derek Plumbly focused on the good developments that has been made from the part of US, UK and also Unesco for the restitution of looted cultural heritage in the Middle East, such as the fact that US has ratified The Hague Convention and UK intends to do so and also supports the efforts of restitution in the Middle East by funding them. The key for success, as he concluded, is the existence of a multiplicity of voluntary and academic bodies and the co-ordination between them.

Mr. Dick Ellis (former Head of the Metropolitan Police, Art and Antiquities Unit) talked about Art Recovery and for specific cases of artworks successfully recovered by the Police, as well as his own experiences of art recoveries and historical recoveries. Firstly, he talked about some really impressive historic recoveries such as the ones of : The ‘’Scream’’ by the Expressionist artist Edvard Munch, stolen in 1994 in Oslo, the Cavaggio’s ‘‘St Jerome’’, stolen in Malta, the  J M W Turner’s ‘‘Shade and Darkness- The evening of the Deluge’’, as well as Turner’s ‘‘Light and Colour- The morning after the Deluge’’, Caspar David Friedrich’s ‘‘Waft of Mist’’ and Picasso’s ‘‘Horse Head’’. As Mr. Dick was the Head of the investigation or was collaborating in the investigation and the achievement of the recovery of these artworks, it was very impressive to hear from him all the backstage steps that have been followed for the recovery, as well as his personal adventures and advice for the recovery of such pieces of art. As he characteristically revealed to us, the recovery of these artworks were treated, both from the thieves and the recovery reams, the same way as if they were cases of kidnaps.

Another exciting research, this time about ‘‘Underwater Cultural heritage and Recent Finds’’, was presented by Mr. Paul Stevenson (Barrister, Church of England). Mr Paul presented the discovery of famous shipwrecks, and more specifically the shipwrecks of HMS Terror, the Esmeralda, and the San Jose, as well as the Common-Law position and the International Law for shipwreck cases.

Ms. Emily Gould (Senior Researcher, Institute of Art & Law) talked about the always interesting and temporary issues of ‘‘Art Attribution, negligence and implied contractual terms’’.  Ms. Emily Gould started her speech by posing the interesting question: ‘‘Fake or Fortune? – A question for the courts?’’ and initiated her presentation by talking about the recent huge art forgery scandal of a painting attributed to Peter Doig, who refused to authenticate it when its owner sought to sell it. Ms Emily presented the legal tools to be used when a provenance is disputed, which are the Contract law and  the Law of Tort, as well as case law of relevant disputes such as the cases of The Munter and the Van Dyck, Harlington and Leinster Enterprises Ltd v. Christopher Hull Fine Art Ltd, Drake v. Thomas Agnew & Sons. The Senior Researcher also talked about important legal questions such as if a misattributed artwork still ‘’fits for purpose’’ and whether there is any hope for the claimants if their claim is based on the provisions of Contract Law. The speaker also presents the contractual terms when a transaction is taking place between a private party and big Auction Houses such as the Christie’s.