Looking ahead to 2021

Posted on: January 5, 2021 by

If 2020 taught us anything it’s that making predictions is a futile – perhaps perilous – exercise. Looking back at our predictions for 2020 from last January only confirms this. Who would have thought that a global pandemic would tear through the fabric of our cozy existence, all the while upsetting a number of accepted norms in the art world? Live auctions, museum visits, the gallery vernissage – all seem things of the past and, when they do come back, they will no doubt feel foreign and a little dangerous.

To play it safe, let’s consider some of the changes that have already taken place. The first is that the Brexit transition period in the UK has ended and, as of 1 January, the UK is now formally disconnected from the legislative and jurisprudential bodies of the EU. That said, because of the last-minute Trade and Cooperation Agreement between the two parties (entered into less than two weeks ago, on Christmas Eve) there are aspects of EU cultural property controls that will remain relatively consistent, such as the mechanism for returning unlawfully removed cultural treasures and the ability for temporary loans between institutions to be excused from import duty/VAT regimes (both mentioned in The Art Newspaper here). In addition, the UK has agreed to abide by the prohibition on introducing unlawfully removed cultural goods, a mechanism of EU law that came into force a mere three days before the end of the transition period. Finally there are slightly different rules applicable to Northern Ireland, as a result of the compromise between the UK and EU, in order to maintain a soft Northern Irish border with the EU, at least for the next four years (this will impact exports and, eventually, imports into Northern Ireland).

Another change came into effect on 1 January, completely unrelated to the Brexit imbroglio. This was announced a mere two weeks earlier when the UK government released its long-awaited response to the consultation on exporting cultural objects from the UK. As a result of the change, there is now a ‘binding offer mechanism’ whereby exporters will have to engage contractually with a UK body interested in purchasing the relevant item. As I recently made clear, we at the IAL agreed that such a mechanism was needed, provided there were appropriate protections for the rights and expectations of exporters. As discussed in my recent blog post, there remain issues of possible contention going forward, so we will have to wait and see how these play out in 2021.

Two other domestic changes will be implemented in the UK this year, if all goes according to plan. The first will be the rollout of the controls on dealing in ivory-related products. This was put on ice over the last couple of years owing to the lawsuit brought through the courts challenging the government initiative. The case has now been dismissed at three judicial levels and so the ball is in the government’s court to develop the necessary detail. The second change will apply to the law of treasure. According to the government’s recent response to consultation, new statutory instruments will be laid before Parliament this year, the effect being that the definition of ‘treasure’ will be expanded considerably. The result of both domestic changes will be to effectuate greater control by the state over antiquities and antiques.

We are also awaiting decisions from top courts. In the UK, an important test case affecting insurance coverage during the pandemic for commercial galleries was heard in November at the UK Supreme Court, and a decision is expected imminently. Also close at hand is a decision from the US Supreme Court on a claim over the Guelph Treasure (‘Welfenschatz’), heard in December. Also expected are further decisions flowing from the major art fraud cases of the recent past (like this one regarding Timmothy Sammons and this one regarding Inigo Philbrick).

At the IAL, we are putting together our programme for the early part of the year. We will be holding one of our usual study forums on 6th February (now entirely online), which will cover a number of interesting recent issues in the art law world. And we are pleased to announce that there will be an online book launch on 27th January at 5.00 pm UK time, for our forthcoming second edition of Norman Palmer’s classic text Museums and the Holocaust. In the 20 years since the late professor wrote his book seismic changes have occurred in this area, and we have tried to capture them all in this new edition. The book will be available in hardback later this month (pre-order through link above). Details of the launch event are now available here.