Naysayers Vamoose: Forum Asserts that ADR is a Possible Solution in Antiquity Disputes

July 25, 2013

While some may say that arbitration or mediation is never possible in antiquity claims, the panelists at the discussion “Alternatives in Art Law: The International Struggle for Antiquities” beg to differ. On July 17, lawyers and students gathered in the Brooklyn Court House to hear the perspectives of Lawrence M. Kaye of Herrick Feinstein LLP, Sandra Cobden of Christie’s, Monica Dugot also of Christie’s, Richard M. Leventhal of the Pennsylvania Cultural Heritage Center and Sandra Partridge of the American Arbitration Association.

Mr. Kaye began by giving a “grizzled perspective” [his own words] of dispute resolution in antiquity claims.  He emphasized that the crux of the matter is time.  Whereas antiquity claims litigation may go on for years, alternative dispute resolution (ADR), such as mediation (negotiation assisted by a trained neutral mediator), is a good alternative because it can reduce the time frame of litigation.  Yet, he pointed to the fact that ADR is difficult in antiquity claim cases because both parties often claim title to the same antiquity.  ADR works best when there is “no contest,” but when a country and museum (private collector, or any alternative thereof) both claim ownership there are heated emotional tensions because both sides believe they are legally in the right, and often see no possibility for compromise.

Mr. Kaye stated that the best practice would be to have ADR employed at the outset of a dispute.   Recent claims have been resolved at major museums, such as the Dallas Museum, where a museum returns antiquities to their source countries with an agreement to provide loans in the future.  This, Mr. Kaye emphasized, marks a new period of cooperation between feuding parties.

Ms. Dugot added that ADR can successfully be employed to resolve disputes – and she had numbers to prove it.  Christie’s has compromised the majority of their Holocaust Claims in the past ten years.  Ms. Cobden chimed in and explained that the successful model of compromise in their Holocaust Claims is now being applied to the auction houses’ cultural property claims.  Ms. Cobden added that the point of ADR is to balance the legitimate claims from each party.  She emphatically added during the Q&A: “It’s not a perfect world and we don’t have perfect provenance we must live with imperfect provenance.”  Understanding this problem is key to any successful antiquity ADR.

Mr. Kaye next introduced Mr. Leventhal as a representative for the museum community- a title Mr. Leventhal disputed.  He said that he would speak about, but not for the Association of Art Museum Directors’ guidelines for antiquities.  As an archeologist, not a lawyer, Mr. Leventhal showed jaw-dropping pictures of looted sites and argued that looting will continue without doubt as long as museums and collectors fuel demand.  His comments brought to light the emotion associated with antiquity claims.

Ms. Patridge rounded out the evening by providing information about the American Arbitration Association and its push for ADR as a real solution for the future.

ADR can allow parties to avoid the time, expense and uncertainty of litigation. Yet, successful ADR requires a willingness to compromise.  Museums, collectors and source countries have made little use of ADR—or any settlement-oriented procedures– in recent years. As the panelists explained, there is a new emphasis of collaboration over confrontation to resolve antiquity claims.