The mobility of works of art, people and almost everything else has been severely restricted over the past two years by the Covid-19 pandemic. Fittingly, then, as international travel becomes possible once again, the IAL’s first in-person seminar since February 2020 was dedicated to the topic of art exports. It was a pleasure to welcome participants to the London offices of the law firm Maurice Turnor Gardner LLP, with whom we partnered to deliver the seminar on Tuesday 15th February.
The seminar featured experts from numerous jurisdictions who discussed the challenges and new developments in this area and was moderated by Clare Maurice, founding partner of Maurice Turnor Gardner LLP.
There could be few others with greater insight into the UK regime for the export of works of art than Lord Inglewood, former Chair of the UK’s Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (the RCEWA) who gave a fascinating overview of the UK system, from its origins in the mid-twentieth century to its role and operations today. He described the ‘cleverly crafted rules’ known as the Waverley criteria which guide the Committee’s decisions and form the bedrock of the UK regime. With their focus on whether a work is connected with history and national life, has outstanding aesthetic importance or outstanding significance for the study of art, learning or history, he suggested that the criteria generally achieve their objective of balancing the legitimate interests of the various stakeholders in the art world in a quasi-judicial, but flexible process.
For those unfamiliar with the UK export system for works of art, in very short summary, it is based on the right of the Secretary of State, at his discretion and on advice of the RCEWA, to bar a work from export for a limited period of time, to allow a UK purchaser to acquire the work at fair market value and ‘save it for the nation’. The current rules of procedure for UK exports were summarised by Anastasia Tennant, Senior Policy Adviser in Museums and Cultural Property, Arts Council. One recent change of some significance results from the UK’s departure from the EU, removing the former requirement for exports from the UK to comply with EU, as well as UK rules. Checks will still be made by the UK authorities, however, to verify that works which came into the UK from the EU since 1 January 1993 did so lawfully and definitively.
Lord Inglewood noted that there have been shifts in emphasis since the 1950s – the increasing focus on public access over recent decades is one example – but concluded that the process generally remains robust and fit for purpose despite changing times. Asked whether the system ought to be put on a statutory footing (as is the case in many other jurisdictions), Lord Inglewood praised the flexibility of the current system and questioned whether such greater rigidity would necessarily be beneficial.
The flexibility which characterises the current regime was also discussed by Clarissa Vallat, Senior Director, Sotheby’s Tax and Heritage. Providing a view from the exporter’s perspective, Clarissa suggested that a system based, to some degree, on perceived ‘gentlemen’s agreements’ can foster a collaborative approach which may actually be threatened by attempts to hamstring the participants through more rigid rules and contractual ties. On the other side of that coin, however, lies the frustration and sense of powerlessness which may ensue when decisions appear unpredictable and fail to fall in a prospective exporter’s favour.
One tangible example of a ‘tightening up’ of the system was explained by Vittoria Mastrandrea, PhD candidate, London School of Economics. This is the introduction of a ‘binding offer’ mechanism which, in short, obliges a would-be exporter to enter into a contractual agreement to sell the work he wishes to export to a prospective purchaser who has made an offer at fair market value (often referred to as a ‘matching offer’). The change came into effect on 1 January 2021 and has already been applied in a number of cases.
One of the challenges which the ‘binding offer’ rule seeks to address was amply illustrated by a case recounted by Richard Barnett, Head of Legal, National Gallery. The refusal of the owner of a 16th century painting by Jacopo Pontormo, Portrait of a Young Man in a Red Cap to accept a ‘matching offer’ made by the National Gallery after the end of a temporary export bar meant that the Gallery was unable to secure the work. This was despite having spent considerable time and resources raising the £30 million purchase price. The case was, in fact, one of the triggers for introducing the new rule, though the change had been under discussion since as early as the 1990s. A happier ending befell a rare medieval panel by Giovanni Da Rimini which the National Gallery managed to ‘save for the nation’ owing to an innovative funding solution involving the US cosmetics heir and philanthropist, Ronald S. Lauder.
Whilst systems for the export of works of art are distinct in origin and operation from protections against the illicit trade in art, the two are necessarily linked in important ways. These links were examined in a talk by Fionnuala Rogers, Solicitor, Director, Canvas Art Law, on the new EU regulation on the import of cultural goods (Regulation (EU) 2019/880). Notably, the Regulation has been repealed in Great Britain but will still apply to Northern Ireland – just one of the many complexities and risk areas associated with this regulation and its implementation across the EU. Provenance checks for dealers importing into the EU will take on a new importance and the old adage, ‘buyer beware’, must remain ever-more pertinent for dealers of art and antiquities.
The European perspective was further explored in a virtual panel discussion moderated by Alexander Herman, Director, Institute of Art and Law. This involved lawyers from Italy, France and Germany,* with a brief foray across the Atlantic, to consider the Canadian system, which resembles those in Europe much more closely than the more liberal free market rules in place in its US neighbour. Whilst it is difficult to generalise too broadly, since the European systems do actually differ quite markedly in some ways, it is probably fair to say that the statutory control over ‘national treasures’ in each of the EU countries reviewed is more rigid and more protective than the UK’s more flexible regime.
The seminar concluded with a discussion of the human rights implications of export regimes. Gilead Cooper QC, Wilberforce Chambers, and Ed Powles, Partner, Maurice Turnor Gardner addressed some of the difficult questions this topic raises. To what extent are the restrictions imposed by export controls a reasonable interference with the right to property? Where is the line to be drawn? Participants were given much food for thought on both sides of this challenging debate. There are no easy answers, but those struggling to align their thoughts were perhaps given some comfort by the quotation shared by Gilead in one of his parting comments from the words of Ralph Waldo Emerson – that “a foolish consistency is the hobgoblin of little minds”.
*Giuseppe Calabi, Managing Partner, CBM & Partners, Milan; Anne-Sophie Nardon, Managing Partner, Borghese Associés, Paris; Dr Mara Wantuch-Thole, Founding Partner, Wantuch Thole Volhard, Berlin; François Le Moine, Counsel, Sarrazin Plourde, Montreal