Is it really time to make predictions? With the uncertainty that has accompanied these last two years, likely not. As I said last year, prognostication is a perilous enterprise. What can really be said about the year ahead without including a major asterisk? So let us instead try a more modest approach, by going over a few of the art law developments that could (if we’re lucky) take place in the year ahead.
2021 was certainly very busy in our field. We saw important case law coming from the US, with the Supreme Court decision on the Guelph Treasure in February, the circuit court decisions on copyright and fair use in the spring and, most recently, an important cultural property case involving a 5,000-year-old Anatolian artefact. In the UK we had a High Court decision last January facilitating insurance claims for commercial art galleries affected by the pandemic, the successful judicial review of the Transport Secretary’s decision allowing a tunnel under Stonehenge and wrangling around sales of inauthentic art. And there have been many restitutions announced by museums and other institutions around the world (my book on the topic also came out last year, serendipitously).
After the Guelph Treasure, the next big Holocaust-era looted art case to be argued before the US Supreme Court will be the longstanding dispute between the heirs of Lily Cassirer and Spain’s Thyssen-Bornemisza Foundation. The briefs have been filed with oral arguments to be heard in mid January, and perhaps a decision by the spring. This case, on a rather narrow question of private international law, will not necessarily resolve the dispute once and for all, but it is still worth waiting for. The Supreme Court may start to wonder why so many disputes involving overseas art are being litigated in the US. With the HEAR Act, this will only increase.
In the UK, there remains much unfinished business. The Transport Secretary indicated last month that he will be hearing proposals once again for the construction of the controversial Stonehenge tunnel. As explained by Dr Rebecca Hawkes-Reynolds on the blog and at IAL events last summer, getting over the judicial review won’t require a superhuman effort by the Secretary: taking account of the impact on all heritage assets and considering possible alternatives to the scheme should do the trick; with an outcome that could in the end be identical. So while we might not see tunnel construction breaking ground this year, likely the plan will go ahead one way or another, eventually.
The long-ago passed Ivory Act 2018, which will control the trade in objects containing elephant ivory (such as piano keys, carved tusks and ivory-inlaid antiques), is still to come into force. A total of three government consultations took place in 2021 relating to the legislation: the first on exemptions, the second on extending the ban to ivory from other species (hippos, walruses, etc) and the third on enforcement mechanisms. The government has stated that it will be tabling necessary secondary legislation to take the consultation outcomes into account and push the Act into gear, but it’s not quite clear exactly when this will take place.
While they’re at it, there’s also a proposed change to treasure law in England – which will require a significant overhaul of the current system – though again, it’s anyone’s guess as to when this will take place. Of course the pandemic has consumed much of the parliamentary oxygen over the last two years, with cultural initiatives understandably left by the metaphorical roadside.
On the topic of restitution, it doesn’t appear as though the impressive pace of returns will subside, at least certainly not from Continental Europe. Germany has promised that several of its museums will return Benin Bronzes to Nigeria by March. President Macron of France publicly renewed his passion for the topic with a 27 October speech at the Quai-Branly Museum. The French Senate later proposed a bill that would see the creation of a national advisory committee to assess all future restitution claims. Macron seems unconvinced of the need for such a committee, indicating that decisions should be left to museums themselves, while hinting at a new law that could set out the criteria of ‘restitutability’. If passed, this would be an unprecedented attempt to establish legal rules in this area. Belgium, led by Secretary of State for Recovery and Strategic Investment Thomas Dermine, and the Netherlands, once the country’s post-election Cabinet is in order, also appear to be headed towards the establishment of guiding principles around returning objects to former colonies.
So plenty to look forward to, even if our predictive abilities remain meagre. We will keep an eye on things here at the IAL blog, as well as on our social media accounts (Twitter, Facebook and LinkedIn). Rest assured that if a big case or other major development in art law comes along, we will be on it.
Our programming is also continuing as before, much of it still online. The next IAL study forum, with a particularly stimulating group of speakers, will take place on 19 March virtually. And our popular Diploma course for museum professionals, which usually runs in October, will also run (by popular demand) in April, from 25 to 29, virtually as well. We do hope to have one in-person event early in the new year, on 15 February, a morning seminar on exports with the law firm Maurice Turnor Gardner. As it stands this will take place at the firm’s premises in London, but we will reassess if necessary and move the event online if the covid situation continues to make such gatherings impossible. Either way, you can book a spot for the event here.
And of course our journal Art Antiquity and Law will be released four times this year, in April, July, October and December. As usual, there will be fascinating and useful articles on case law and other developments. Subscription is available here (IAL members already have subscriptions in their package).
We hope to see many of you soon, whether in person or online. Here’s to 2022 being a year of gradual improvement and, eventually, a return to normalcy. It’s the least we can hope for.