WYWH: 2024 Art & Law Executive Course & International Conference on Preventing Art Crimes Through Regulation and Self-Regulation

October 31, 2024

By Emily G. Finch and Center for Art Law

As an intern with the Center for Art Law, in September 2024, I was thrilled to attend not one but two events in Italy. First I participated in the Art & Law Executive Course in Florence and later I traveled to Milan for the International Conference: Preventing Art Crimes Through Regulation and Self-Regulation. Both programs provided amazing opportunities to learn from leading international experts in the art and cultural heritage law field and to connect with students with shared passions and paths.

FIRST STOP – FLORENCE: ART & LAW EXECUTIVE COURSE

On September 26-28th, Università delgi Studi Firenze and Université de Genève hosted the second annual Art & Law Executive Course in Florence, Italy. This three-day hybrid program offered participants from around the globe an opportunity to come together and learn from experts on art repatriation and cultural heritage law, art and finance, and art sales and auction law.

Day 1: Thursday, September 26 Art Repatriation and Cultural Heritage Law

The first module of the program focused on legal frameworks for repatriation, and was introduced with remarks from Dr. Alina Payne, Paul E. Geier Director of Villa I Tatti, The Harvard University Center for Italian Renaissance Studies. Dr. Payne offered insights on the scope of present day restitution and repatriation conversations. Dr. Michael Brand, the Director of the Art Gallery of New South Wales, reminded attendees that frameworks are needed to facilitate restitution and repatriation process, and that lawyers are only one group among the many players working to develop and implement them.

In Art Repatriation and Cultural Heritage Law: Setting the Scene, Professor Marc-André Renold provided insights on the blend of public international law, customary international laws, international diplomacy, and national laws that shape cultural heritage disputes. He noted that considering this complexity, creative solutions for resolving disputes are necessary, and touched on the importance of publicizing solutions to create and promote best practices for resolving disputes.

Next, Professor Alessandro Chechi offered insight into UNESCO, UNIDROIT, and Council of Europe treaties on cultural heritage and explored their interplay with other legal instruments adopted by the European Union in Art Repatriation and International Law. He noted that while rules and frameworks are important for navigating cultural heritage disputes, what matters is the implementation and enforcement of those rules at the domestic level.

After lunch, Professor Matthias Weller provided an overview of the legal treatment of Nazi expropriated cultural property in Nazi-looted Art and its Restitution. Professor Weller shared some insights from his work on the Restatement of Restitution Rules for Nazi-Confiscated Art and noted that restitution is something that will stop if we do not continue to seek it and that collaborative and transparent approaches are necessary to effectively and consistently resolve disputes.

The first day closed with Dispute Resolution Methods for the Restitution of Cultural Property by Antonella Di Campo,

CEO and Founder of the Fashion Law Institute, Madrid. Touching on the issues posed by the lack of a universally accepted definition of “cultural property,” she shared her thoughts on potential ADR tools and techniques to resolve disputes and navigate the complexities posed by the inconsistent enforcement of and clashes between international laws.

After class, in person participants had the opportunity to visit Museo Ferragamo, a fashion museum dedicated to famed Italian shoe designer Salvatore Ferragamo.

Day 2: Friday, September 27 Art and Finance

Artist and filmmaker Vittoria Colonna Di Stigliano opened the second module on art and finance by sharing her perspective as a creator. She offered insight on appreciating art from the viewpoint of searching for freedom, inspiration, connectivity, emotion, and a relationship with space. With the relationship between art and artist in mind, the module set out to explore the dynamics and interests of other players in the creative economy.

In An Introduction to the Financial Tools and the Investments in Art, Professor Ettore M. Lombardi asked attendees to think about the value of art beyond aesthetics. Providing an overview of the players in the art market and how art is valued as an asset, collateral, or tax deduction, the program encouraged the audience to think about how creative outputs are commodified as well as the risks and rewards of investing in art.

Taking a closer look at the nuances of art-backed lending, in Banking on Art: the Challenges and Opportunities When Lending Against Art, Rudy Capiledo, Partner at Wellake Bell LLP, presented the financial and legal issues that emerge when private banks and boutique lenders allow collectors to borrow against their collections. In addition to gaining an understanding of historic issues through case studies, participants also benefited from a discussion on where the future of art-backed lending may take the art and cultural heritage market moving forward.

After lunch, Pietro Fontana, Partner at Sidley Austin LLP, shared his expertise on the Uniform Commercial Code (UCC) in Art as Collateral: A U.S. Law Perspective. Participants were introduced to UCC Article 9, and learned how security interests are created and perfected in art. Turning to digital art and NFTs, the class was also briefed on UCC Article 12, which has already been adopted by some states and the implications of being considered a “controllable electronic record.”

Day two concluded with Art Investment Goes Mainstream: a Discussion of Art Securitization and Finance, a presentation by Co-Founder and General Counsel of Masterworks, Josh Goldstein. In addition to detailing the nature of art as an investment asset, his presentation looked at the challenges, risks, and rewards of art investment from the perspective of investors.

After class, in person participants had the amazing opportunity to visit Vittoria Colonna di Stigliano’s private atelier to talk more with the artist and see some of her current works.

Day 3: Saturday, September 28 Art Sales and Auction Law

Director of the Museo Real Bosco Di Capodimonte, Eike Schmidt, opened the final module with a history of auction houses and a discussion on their role in the art market today.

In Art Auctions: Legal and Economic Issues, Professor Marco Ventoruzzo presented the web of relationships between auction houses and other art market participants and the legal, ethical, and economic considerations that surface when art is auctioned. Participants were exposed to different styles of auctions and the wide range of issues that can arise during pre-auction activities through to those that can occur post-sale.

Next, Martin Wilson, Phillips’ Chief Legal Counsel and Head of Fiduciary Services, provided insight on how auctions work from decision to sell, to adding a new work to a collection, and the contractual structure of auctions in Art Under the Hammer: Legal Dimensions of Auctions and Art Transactions. Participants had the opportunity to take a closer look at what duties auction houses owe to both the buyer and seller, what is in a seller’s agreement, the duties of auction houses in relation to attribution, buyer cancellation rights, and other terms either implied by law or frequently included as conditions.

After lunch participants were welcomed back with remarks from Antonia von Appen, an Associate at Noerr, who encouraged attendees to reflect on the parallels between
“technology” past, present, and future, and how we have and continue to appreciate, value, and protect creativity.

Building on the sentiment of “value” Ann-Marie Richard, Director of Sotheby’s Institute of Art, New York provided a primer on the various factors appraisers consider when valuing art in Art Law Case Studies: Scenarios Where Appraisers Take Center Stage. Through a series of illustrative legal disputes and case studies, participants were encouraged to consider the difference between value and price and learned what affects insurance policies, debt, death, ownership models, provenance, and acknowledgement have on the value of art.

Concluding the course, in The Central Role of Auction Houses in the Art Finance Market, Professor Cathy M.

 Kaplan provided insights on the art market’s absence of barriers to entry and what that means for buyers, sellers, cultural heritage institutions, and the public. Participants were encouraged to consider if regulation was needed, what regulations would look like, whether the scope should be limited to or exceed the regulations New York lifted in 2022, and how those regulations would be enforced.

A 3^rd annual Art & Law executive course is being organized for Fall 2025; the three-day program will run September 25^th-27^th. We hope to see you there!

SECOND STOP – MILAN: PREVENTING ART CRIMES THROUGH REGULATION AND SELF-REGULATION

On September 30^th, the Universitá degli Studi della Campania Luigi Vantivelli and the UNESCO Chair on Business Integrity and Crime Prevention in Art and Antiquities Market hosted the International Conference: Preventing Art Crimes Through Regulation and Self-Regulation.

The conference opened with remarks from Piergiuseppe Biandrino (CNPDS Chairman of the Board of Directors), Krista Pikkat (UNESCO Director of the Culture and Emergencies Entity and the Secretary of the 1970 UNESCO Convention), and Michele Coppola (Executive Director for Art, Culture and Historical Heritage and General Director Gallerie d’Italia, Intesa Sanpaolo).

The keynote speech, Updating the UNESCO International Code of Ethics for Dealers in Cultural Property was presented by Sunna Altnoder (Head of Moveable Heritage and Museums Unit, UNESCO) and Louise Malécot (Associate Program Specialist at the Movable Heritage and Museums Unit, UNESCO). Together, the speakers provided updates on the development of model provisions to strengthen the framework for preventing illicit trafficking, called for provenance research capacity building nationally and internationally, noted ongoing efforts to find common grounds between market and UNESCO member states, and called for increased vigilance and enforcement of laws to curtail the illicit market.

Panel 1: Codes Of Conduct, Codes of Ethics and Other Soft-Law Tools in Cultural Heritage Area

The first panel, chaired by Stefano Manacorda (UNESCO Chair Holder, University of Campania Luigi Vanvitelli) explored the balance of interests and cross-representative frameworks for managing cultural heritage disputes. Manacorda asked the audience to consider the relationship between art crimes, organized crime, and economic crimes, and encouraged the room to consider the involvement of all market players, including both criminal and legal actors, when proposing frameworks and compliance methods with existing laws and ethical principles. Professor Marc-André Renold (University of Genève) explored the role soft law plays in the framework of cultural heritage law, its efficacy, recognizing its intrinsic limits and its potential for greater effectiveness moving forward. Next, Professor Donna Yates (University of Maastricht) encouraged the audience to consider the phenomena and appeal of creative compliance in the cultural heritage space. Exploring why institutions may choose to break or obey codes of ethics, she emphasized how higher loyalties (whether to an object or to the code of ethics) factor into decisions behind compliance. Professor Yates encouraged not only continuous review of ethical codes, but also studies into how the codes are used in practice in order to find instances of creative compliance and develop an understanding of why institutions may consider creative compliance. Mario Iannuzziello (Post-doc at the University of Campania Luigi Vanvitelli) was the final speaker in the session and presented on the evolving framework for codes of conduct. He noted that a range of stakeholders including professional associations, NGOs, cultural heritage institutions, and other market participants have been driven to develop much of the existing soft law regulatory framework in the form of codes of ethics, codes of conduct, and guidelines.

Building of the frameworks and trends presented by the speakers, discussants Tess Davis (Executive Director of the Antiquities Coalition), Giuseppe Calabi (Gruppo Apollo Advisor), and Nicholas M. O’Donnell (Partner at Sullivan & Worcester LLP) shared their expertise and perspectives on national commitments to pending and evolving soft law regulation efforts, the shortcomings of soft law in contemporary litigation, and the need to bring about greater transparency and compliance.

Panel 2: Legal Impact of Due Diligence Procedures in Provenance and Acquisition

The second panel, chaired by Professor Alessandra Donati (University of Milan Bicocca), presented emerging hard and soft law provisions related to due diligence and explored the role expanded due diligence compliance could serve as a tool for crime prevention. Professor Toshiyuki Kono opened the discussion by focusing on due diligence within the context of global value chains, noting ongoing initiatives for a binding international instrument, while also taking note of soft law guidelines such as the UN Guiding Principles on Business and Human Rights and OECD Due Diligence Guidance for Responsible Business Conduct and more localized developments in France, Germany, and the EU. Then, Professor Marc Balcells (University Oberta de Catalunya) approached due diligence from a criminological perspective, asking attendees to consider the line between organized and white collar crime; he noted the need for policy evaluation and research into types of markets, deterrence effects of provenance and due diligence, and how to categorize the conduct of the players involved in considering potential regulations. Finally, tying things together, Professor Marco Colacurci (University of Campania Luigi Vanvitelli) looked at the development of due diligence as a concept, the embrace of its crime prevention capacities in the 1995 UNIDROT Convention on Stolen or Illegally Exported Cultural Objects and the 5th EU Anti-Money Laundering Directive, and its potential; he concluded by noting that with greater and more refined criminalization, combined with increased standardization, due diligence can prove effective in countering a broader range of crimes against cultural heritage.

Next, Anne Laure Bandle (Partner at Borel & Barbey), Lynda Albertson (CEO of the Association for Research on Crimes Against Art), and Rena Neville (AML Art Market Consultant, Corinth Consulting Ltd.) shared their experience and thoughts on due diligence procedures and related regulations. They noted that disrupting crime requires more than awareness and legislation, but also input from subject matter experts, consistent enforcement and reporting, and cooperation from all market players.

Panel 3: Anti-Money Laundering in the Art Market

Chaired by Professor Arianna Visconti (Università Cattolica del Sacro Cuore), the third panel focused on exploring anti-money laundering frameworks, and acknowledged the appeal of the art market to money launderers and criminal operations. To get things started, Professor Saskia Hufnagle (The University of Sydney) provided an overview of the international anti-money laundering legal framework and presented on how changes to UK legislation will impact art dealers. She noted that in many cases, illegal funds are not suspected because the buyers and sellers involved are respected business people. Professor Hufnagle highlighted that while regulations do impact players in the market, UK legislation has not yet had an effect on the courts, as convictions remain rare. Next, Professor Umut Turksen (Coventry University) touched on aspects of U.S. anti-money laundering provisions and portions of Swiss, German, and French law before expanding on the UK approach and taking a close look at the treatment of high value dealers. Pulling together several studies collecting market players’ feedback on their understanding of regulations, he presented attendees with his conclusions that stakeholders have found the application of high value dealer provisions and anti-money laundering regulations challenging and confusing, that an overhaul of the regulatory regime is necessary and should focus on clarity and more robust definitions for who and what is covered, and that efforts to quantify and better understand the extent of money laundering within the art market is necessary. Finally, Professor Anna Mosna (Leiden University) talked about how money laundering occurs in the art market, noting money can be laundered through art and art itself is laundered to be introduced into the legitimate market as a seemingly legal good and dissected the general criticisms of anti-money laundering regulations. She suggested market regulation is a meaningful compliment to cultural heritage protection, and while she recognized the administrative burden on smaller dealers, argued that the existence of regulatory frameworks could be used to promote knowledge sharing, standardization, resource development, and build trust in the art market to the benefit of all good-faith participants.

Three discussants had an opportunity to build on points made by the speakers and expand on the future of anti-money laundering regulations. Erika Bochereau (Secretary General of CINOA) spoke about the need for more research to create data backed regulations and called for future attempts at regulation to be consistent and proportionate. Our very own Irina Tarsis (Founder & Managing Director of the Center for Art Law), spoke on what individual actors can do to combat money laundering in the art market and touched on how sanctions and regulations are a facet of cultural diplomacy. Tying things together, Ricardo Ercole Omodei (Criminal Law Researcher at the University of Palermo) shared his thoughts on existing regulations and future needs in relation to criminal law.

Closing out the conference, Stefano Manacorda (UNESCO Chair Holder, University of Campania Luigi Vanvitelli) chaired a final round table discussion on Industries Practices and Judicial Applications Lessons to be Learned. Insights were provided by Eugenio Fusco (Deputy Chief Prosecutor at the Milan Public Prosecutor’s Office), Guido Carlo Alleva (Founder and Partner at Studio Legale Alleva & Associati), Giuseppe Catalano (Assicurazioni Generali S.p.A.) and Antonella Crippa (Art Advisory and Fair Value Coordinator, Intesa Sanpaolo).

Acknowledgments: Center for Art Law served as one of the educational affiliates with the Florence Art and Law Program and is working on additional advanced art law lecture series together with other Italian educational institutions.

About the Author:

Emily is a Fall 2024 legal intern at the Center for Art Law. She is a Honors JD/Entertainment, Art, and Sports Law LLM at the University of Miami on the Art Law Track. At Miami Law she serves as President of Miami Law Women and the Intellectual Property Law Society, Vice President of the Society of Bar and Gavel the law school’s service honor organization, and as Staff Managing Editor of the University of Miami Race and Social Justice Law Review. She has a BA from Kalamazoo and her MSI and Graduate Certificate in Museum Studies from the University of Michigan (Go Blue!). Emily has training and experience as a librarian/archivist and looks forward to building an interdisciplinary career at the intersection of information, law, policy, and cultural heritage management.