2022 was a year of great change, both in the world at large and for art law in particular. We saw the end of most of the worst effects of the covid pandemic, accompanied by what appears to be a final farewell to the era of lockdowns. We saw war in Europe for the first time in a generation with the Russian invasion of Ukraine. And we felt the onset of an energy and cost of living crisis. In Britain this year, the long reign of Queen Elizabeth II came to an end with her passing on the 8th of September, and a new (Carolingian?) era began, while there were a total of three Prime Ministers over the course of the calendar year, a phenomenon that has apparently not transpired since 1868.
When the world changes in significant ways, the arts sector is sure to follow. The plummeting value of currency has meant that art has come to be seen as an increasingly safe, even lucrative, investment. Last month, for example, a sale at Christie’s became the largest single auction sale in history, with the auction house bringing in $1.5 billion for the sale of the collection of Microsoft co-founder Paul Allen. Meanwhile, the crash of crypto has meant that art investors appear to have cooled rather quickly on NFTs, which has only increased the potential for legal problems and disputes.
Of course, February brought the aggressive invasion of Ukraine by Russian troops, which quickly led to a humanitarian crisis as well as putting many Ukrainian cultural sites at risk from the conflict. This has only increased over the course of the year, with the latest review by UNESCO confirming that 227 cultural sites have been damaged in the country since the beginning of the conflict. An early reflection shows the international legal rules that in theory should limit damage and destruction during war, but sadly these appear to have been ignored by invading forces.
In terms of museums, the topic of restitution has remained prominent. The fifth anniversary of Emmanuel Macron’s statement on restitution of African heritage came and went in November, with very little French legislative action to show for it, despite the five-year timeframe given by the President in that famous speech in Burkina Faso. The call seems to have been followed with greater determination elsewhere: Germany and Nigeria signed an unprecedented Joint Declaration on the return of over 1,100 Benin Bronzes from German collections, no mean feat for a country like Germany with a decentralised cultural infrastructure. Despite the apprehension of some in the media, transfers of title from institutions in Germany have begun taking place, in many cases including loan arrangements whereby certain pieces will remain on display in Germany, on long-term loan from Nigeria’s National Commission for Museums and Monuments.
In the UK, 2022 saw the long-awaited publication of the guidance from Arts Council England on restitution and repatriation for English museums. IAL was involved in the drafting of this document and we are of course happy to see that this practical guide has finally been made available for museums, providing easy steps to follow both before and after potential restitution claims, as well as the factors to consider when making an ethical decision in response to a claim. While certain museums have great experience in dealing with countries and communities of origin, others may not and so this guidance can prove especially useful to them.
The discussion has continued unabated around the Benin Bronzes, the Parthenon Marbles and other contentious museum pieces in UK museums. The Horniman Museum and Gardens in London announced the return of 72 of its Benin Bronzes in August, while Cambridge University has done the same for 116 pieces held at the Museum of Archaeology and Anthropology, both decisions having received approval from the Charity Commission of England and Wales. It appears that the Commission is becoming the de facto review body for decisions made by trustees in relation to restitution: this has been the result of applications made under section 106 of the Charities Act 2011, by which trustees must show that returning the objects is based on a moral obligation (what is sometimes called an ‘ex gratia payment’). This avenue may become more utilised following the passage of the Charities Act 2022, which has the potential of making such applications under section 106 available even for trustees of national museums with statutory restrictions on disposing of collection items. After we outlined this new development on our blog, the government stepped in to defer commencement of the relevant provisions of the 2022 Act until it ‘better understands the implications’ for national museums and other charities. As we move into 2023, we await the government’s assessment of these implications and how it eventually plans to move forward.
Some change this year has been more expected. For example, after its passage in 2018, the UK’s Ivory Act 2018 finally came into force in June, following several sector-wide consultations. Also, new anti-money laundering guidance that clarifies the obligations for art market participants was issued in June as well.
The year would not be complete without at least a couple of important art law cases in the UK, both High Court decisions. These arrived just as the calendar was set to expire. The first was QIPCO v Eskenazi, the product of a two-week trial this summer, involving several Asian antiquities sold by the London dealer John Eskenazi. The buyer, a vehicle controlled by the Qatari Sheikh Hamad Al Thani, argued that the works, bought in 2014 and 2015, were in fact forgeries and the Court agreed, holding the dealer liable contractually, in misrepresentation and in negligence. We will shortly have a blog post on this lengthy decision (the judgment totals 159 pages) and a case note in Art Antiquity and Law in the new year, both to be penned by DipAPLE alumnus Sophia Dzwig of 3 Verulam Buildings. The other case, Fielding v Simon Dickinson, involving a claim by the seller of a Chardin against the dealer who allegedly sold it at an undervalue, has already been written up on the blog by Michael Bowmer of 4 New Square and will also be given in-depth treatment next year in the journal. If you are interested in subscribing to the four issues for 2023, you can do so here.
There is of course more to say about the continuing investigations prompted by the District Attorney’s office in New York, especially that which has led to charges against the Louvre’s former director, amongst many others, but we are still awaiting the outcome in many of these. Nevertheless, there have been a number of seizures across the United States of looted antiquities, while many of those seized in previous years have now been sent back to their countries of origin.
That concludes our whistlestop tour of the year’s developments. As mentioned, there has been a great deal of change both in the wider society as well as in the art world. While it might be difficult to find common threads amongst these apparently disparate developments, certain themes may come to light as we take a step back. For one, it seems as though there is a growing place for morality in decision-making by museums (certainly when it comes to restitution). In relation to illicit antiquities (whether these items are forged or stolen), the law appears to be catching up with those who may have benefited from the trade in such items. And lastly, there is a creeping level of regulation around the trade in cultural objects more generally (as illustrated by the rules around ivory and money-laundering).
If nothing else, the year’s end offers an opportunity (perhaps an excuse) to grapple with the long-term changes taking place across the sector. Not everyone will agree with the conclusions reached in the above; but hopefully they can stir discussion. If we follow only the day-to-day news that percolates throughout the year it can be a little like looking at the second hand of a clock (as Kierkegaard might say) and trying to ascertain the time of day.
Image credit [2023 loading]: Image by dashu83 on Freepik
Image credit [2022-2023]: Image by Freepik