Art balck market: the world of art disputes is an intriguing and growing area of practice
By Ludovic de Walden
Bird & Bird
Countries claiming art items now often have the emotional upper hand
The heady realm of art disputes often lies at the more glamorous end of the law – or so we may imagine. But it can admittedly yield a rich and intriguing seam of work for firms – from actions by sovereign states to reclaim national treasures, to claims about objects purloined by the Nazis, theft by criminals working to order and private ownership tussles. Not surprisingly, an increasing number of lawyers are attracted to the field but to succeed in it they need not only a good grasp of private and international law but agility and stamina as well.
Lawyers come to art law practice from a host of different fields – intellectual property, litigation, insurance, tax and trust law. Often they find themselves in the realm by happy accident. Massimo Sterpi, an intellectual property lawyer, partner of Italian firm Jacobacci Sterpi Francetti Regoli de Haas & Associati and Secretary of the IBA’s Art, Cultural Institutions and Heritage Law Committee, became involved in the field through his own interest in art. ‘I started collecting contemporary art and through that got to know artists, gallery owners and other collectors who became clients’, he explains. Lucian Simmons , head of the World War II Restitution Department of Sotheby’s New York, helped pay his way through law school by selling old masters’ prints and drawings. The speciality is still relatively small, say practitioners. In London, Mishcon de Reya has the noted specialist Karen Sanig, who heads its art law department, and international firm Bird & Bird last year snapped up the practice of Lane & Partners, whose Ludovic de Walden is renowned for his art law work. In the US, Jo Backer Laird, Of Counsel at New York firm Patterson Belknap Webb & Tyler and formerly General Counsel at Christie’s New York, reports: ‘There’s been an “art bar” in New York for many years and universities like Harvard and Columbia have art law courses.’ The field has particularly come to the fore recently, she says. ‘It’s always been an attractive area for young law graduates. The fact that the art market has been so high profile in recent years has made it even more so.’ So what has been keeping art law practitioners busy?
Italy, Greece, Turkey and Egypt are at the forefront of countries that actively make claims for valuable artefacts they have lost in the past. Now other countries are becoming more robust litigants. ‘Sovereign claims are expanding as many countries have become more aware of their heritage and the need to protect it’, comments Sanig. ‘China is now sending envoys around the world to find antiquities which it believes have been stolen from it and we’ll probably see an increase in claims from Iraq.’
While in some countries such as Italy, government lawyers pursue claims for the restitution of state-claimed objects, firms elsewhere are hired to help recover national treasures like, in the Callisto Tanzi hidden treasure (Parmalat scandal). Egypt’s Dr Zahi Hawass, Secretary General of the Supreme Council of Antiquities of Egypt, turned to Sanig when he was attempting to assert Egypt’s rights to the Head of Amenhotep III, a priceless 14th century BC Egyptian sculpture. Eighteen years ago, the sculpture had been illegally exported from Egypt by the British smuggler Jonathan Tokeley-Parry, given a false provenance and sold through an antiquities dealer. The case involved criminal proceedings in the UK and the US and the jailing of Tokeley-Parry and the dealer and was particularly complex, Sanig reports. ‘After the sculpture was smuggled out of Egypt, it had gone through various ownerships by innocent people in various jurisdictions. It had also been charged to a bank and left in a will. We had to unpick all of this.’ To Egypt’s delight, the head was returned to Cairo in late 2008 after much careful negotiation and without litigation, but Sanig notes: ‘There is no effective international law that deals with the trafficking of stolen art and antiquities despite the existence of various international conventions and European legislation on the return of unlawfully removed cultural objects from a member state.’ China’s increasing activism was notably evident in the auction sale in Paris in early 2009 of the dazzling collection of art and antiquities of the late designer Yves Saint Laurent and his partner Pierre Bergé. China demanded the return of two bronze animal heads, which had originally been taken from an imperial palace during the Second Opium War in 1860, claiming that the sale would seriously damage its cultural rights. After a French court ruled that the auction of the works could proceed, they were purchased by an undisclosed buyer for €31.4 million. But later, apparently, the buyer failed to pay. While Christie’s remains silent on the issue, some speculate that the buyer was in fact the Chinese Government or its agent.
At the Metropolitan Police in London, Head of the Art and Antiques Unit Detective Sergeant Vernon Rapley reports that technology is helping drive sovereign claims. ‘Now many auction houses have their catalogues online, which helps countries monitor what’s being sold’, he comments. But cases can be emotionally fraught: ‘They can be quite politically charged’, says Sanig. Ludovic de Walden warns too that many countries make claims without proper evidence to the detriment of dealers and collectors. ‘Countries claiming items now often have the emotional upper hand. They can make up their cases as they go along. And litigants cannot rule out the possibility of politically inspired judgments in the area’, he says.